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Construction Litigation

Unforeseeable Employee Misconduct as a Defense to an OSHA Citation

By Thomas H. Welby – December 14, 2015

Most construction industry employers are at least slightly familiar with the concept that unforeseeable employee misconduct will, under certain conditions, constitute an effective defense, which will lead to an Occupational Health and Safety Administration (OSHA) citation being vacated.

It’s what is called an “affirmative defense,” which means that, if and when the secretary of labor makes out all of the elements of the violation, and provided the defense was pled, the administrative law judge (ALJ) will then consider whether the employer has made out the elements of the defense. Ordinarily, in other words, the ALJ won’t reach the unforeseeable employee misconduct defense unless first persuaded that the secretary has met the burden to show that (1) the cited standard applies, (2) the employer failed to comply, (3) the employee had access to the cited condition, and (4) the employer had actual or constructive knowledge of the violative condition. “Constructive knowledge” means that, even in the absence of actual knowledge, the employer will be deemed to have known of the condition if, with the exercise of reasonable diligence, it ought to have discovered it.

The employer has the burden of proving, by a preponderance of the evidence, each and every necessary element of the defense. Usually, shortly after the filing of a notice of contest, the ALJ assigned to the case will schedule a conference call to discuss pretrial matters and will raise with the respondent employer (or its counsel) the issue of affirmative defenses. Be aware that the unforeseeable employee misconduct defense can be waived unless pled in the respondent’s answer (or brought up during the scheduling conference call, where the case is being litigated using simplified proceedings).

This defense should not be misunderstood as one that will routinely permit management to avert blame for an OSHA violation by pinning it on a low-level employee. The nature and scope of the defense is well illustrated in the recent case of Secretary of Labor v. Quandel Construction Group, Inc., No 14-1434 (OSHRC Feb. 23, 2015), in which it was sustained.

In Quandel, the employer construction company was working to convert half of a commercial building for occupancy by a new tenant and to replace the storefront. An OSHA compliance officer (CO), sitting in his car outside a fast-food restaurant several hundred feet away, observed two Quandel employees in an aerial lift and thought that it looked like one of them was not tied off. Using a camera equipped with a zoom lens, the CO photographed the men, enlarged his photos onscreen, and was able to confirm that such was indeed the case.

After watching the unconnected worker make three trips up and down in the lift without tying off, the CO initiated an inspection and learned that the workers were working on the building façade, at an elevation of 38 to 40 feet, installing metal studs and braces that were being cut to size on the ground below. Workers in the lift would determine the measurements and relay them to an employee on the ground, who would then cut the bracing to the appropriate size. The lift workers would then descend to the ground to retrieve them, and additional bracing would be cut, while the pieces were taken up in the lift and installed.

The inspection led to a single-item citation, alleging a violation, by the one employee, of the standard requiring that “a body belt shall be worn and a lanyard attached to the boom or basket when working from an aerial lift.” The employer contested the “serious” citation item and asserted the defense of unforeseeable employee misconduct.

Of the four elements necessary to the secretary’s case, two (the applicability of the standard and Quandel’s failure to comply) were conceded. At the trial, employee access was readily established, leaving only the issue of whether the unconnected employee, Havens, was—as the CO had assumed—a “supervisor,” knowledge of whose misconduct would be attributed to his employer.

Havens’s job title was “carpenter,” and he was not, formally, a foreman. He denied having authority to discipline anyone. Havens was, however, the lead carpenter of the five or six working on the exterior of the project, and it was he who generally ran the weekly toolbox talks for the other carpenters. He also had, admittedly, authority for his own helper in the basket lift and the employee cutting bracing on the ground.

Based on OSHA precedent that an employee who is delegated authority over one or more other employees, even temporarily, is to be deemed a “supervisor,” for purposes of imputing his knowledge of a violation to his employer, the ALJ determined that Havens was, in fact, a supervisor.

However, the ALJ vacated the citation, for two closely related reasons. One was the judge found that imputation (and, thus, the element of employer knowledge) had been negated by Quandel’s establishment of work rules concerning the standard, the effective communication of those rules, and their enforcement by means of supervision and discipline. The other, incorporating the foregoing elements, added to them the elements that the employer had shown it took reasonable measures to prevent the violation and that Havens’s failure to tie off was “idiosyncratic and unforeseeable” conduct.

Quandel, the ALJ found, had an explicit work rule requiring employees on any raised platform  six feet or higher to wear a full-body harness, with a lanyard attached to an anchor point. That, however, as the ALJ observed, was not sufficient: The employer also needs to show that the rule “be communicated in such a manner that its mandatory nature is made explicit and its scope clearly understood.”

Communication, in turn, will be found to be sufficient (and was so found in Quandel) where the “employees are well-trained, experienced and know the work rules.” Havens testified that he had been given site-specific training on the use of the lifts, as well as the OSHA 30-hour course. He received safety training (including fall protection) from Quandel, including a 90-minute video, weekly toolbox talks, safety manuals on jobs, and weekly meetings at the shop. He testified further that he knew it was Quandel’s policy for employees in the lift to be tied off. That testimony was corroborated by that of Quandel’s project superintendent—whose testimony also established, as the ALJ found, a sufficient program of enforcement, consisting essentially of a “three-strike rule” (oral warning, followed by a written warning, followed by removal from the job).

Finally, from unrebutted testimony that Havens’s conduct on the day in question was his sole infraction during six months of employment, the ALJ agreed with Quandel that his failure to tie off on that day was “idiosyncratic” and “unforeseeable,” justifying vacatur of the citation.

Thus, while the existence of a work rule as part of a half-hearted safety program will not establish the defense, unforeseeable employee misconduct is an issue attorneys should discuss with their clients in addressing alleged OSHA violations.

Keywords: litigation, construction, OSHA, unforeseeable employee misconduct

Thomas H. Welby is the managing partner at Welby, Brady & Greenblatt, LLP, White Plains, New York. Geoffrey S. Pope, counsel to the firm, collaborated in the preparation of this article, which is intended for general guidance only.

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