Last month, the Fifth Circuit Court of Appeals affirmed a $35,000 fine against an employer whose foreman, despite explicit instructions by a company manager to fix an Occupational Safety and Health Administration (“OSHA”) rules violation, allowed his crew member to work while the violation continued.
The Texas employer in that case, a construction company, argued that the foreman’s authorization of the violation — and disregard of his manager — was “unpreventable employee misconduct” and that the violation was not “willful” because of the manager’s instruction to comply.
The Fifth Circuit’s analysis of the unpreventable employee misconduct defense is informative for employers who deal with OSHA citations. The defense provides that even if OSHA can make a case of unlawful conduct, a company is not liable if it can show that the violation resulted from unpreventable employee misconduct. However, this defense only works when an employer can prove that it has — and enforces — proper safety rules.
In this case, while the employer had safety rules, the Fifth Circuit found fault with the construction employer’s enforcement of those rules and ultimately rejected the unpreventable employee misconduct defense.
Environmental, Safety and Health (“ESH”) managers should note the facts that the Court analyzed in concluding that the employer failed to enforce its safety rules and rejecting the employer’s defense in order to consider how they can audit these factors within their own company:
- The employer never disciplined the crew member who was exposed to the hazard; and
- While the company had four OSHA rules violations in the past five years, and conducted over 1,000 projects, it had only two records of discipline, meaning at least two violations went unpunished. The Court also considered the small number of disciplinary measures taken as a suggestion that the company did not enforce its safety rules, in light of the large number of projects.
Finally, the Court’s opinion serves as a reminder that companies rely on their supervisors, whose willful actions may be imputed to the employer. The Fifth Circuit made extremely quick work of rejecting the employer’s defense to “willfulness” due to the fact that the foreman — a supervisor equally as much as the safety manager — had violated the safety manager’s instruction from only a day prior. The Fifth Circuit said, “It is hard to find better evidence of willfulness than that.”