Every fifth circuit court of appeals case
The Fifth Circuit held that a supervisor's willful actions may be imputed to an employer in the same way knowledge of violations can be imputed. Generally speaking, an OSHA violation is willful if it is done voluntarily, with either an intentional disregard of or plain indifference to OSHA requirements. The court applied the identical analysis to a separate inquiry: whether the violation was willful. In other words, because the supervisor did not get in the trench himself, his direction to an employee to do so was, in the court's view, fairly imputed to be a direction from Angel Brothers, resulting in actual knowledge. The court explained that the OSHA violation was the employee working in the unsafe trench, rejecting Angels' assertion that the supervisor's malfeasance-ordering the worker into the trench-was the violation and noting that authorizing a violation was not the same as committing it oneself. The court found knowledge of the violation existed because the foreman told the employee to enter the trench, in violation of OSHA standards and the employer's rules. This explanation is not unusual-what is unusual is the court's narrow application of the exception. Thus, when a supervisor's own conduct constitutes the violation, the court observed, the supervisor's knowledge is not automatically imputed to the employer. The Fifth Circuit acknowledged that imputation is not always proper. One way that courts determine whether an employer satisfies the knowledge requirement is through the imputed knowledge of their supervisors: when an employer entrusts to a supervisory employee its duty to ensure employee compliance with safety standards, courts will charge the employer with the supervisor's knowledge. To establish a violation of the OSH Act, OSHA must demonstrate that the employer knew (actual knowledge) or should have known through the exercise of reasonable due diligence (constructive knowledge) of the conditions constituting the violation. In rejecting both claims, the Fifth Circuit provided new insight for employers and breathed new urgency into OSHA compliance. Angel Brothers argued that it was not liable for the violation because the supervisor's knowledge could not be imputed to it and that, even if knowledge could be imputed, it should not be liable because the violation resulted from the supervisor's unpreventable employee misconduct. The issue on appeal was whether the supervisor's active involvement in the employee's violation rendered the employer liable. An OSHA compliance officer observed the violation, and the company was cited for a willful violation of the trenching standard. Angel Brothers' safety manager had told the project supervisor to use a trench box to protect workers, but the supervisor disregarded that instruction and sent an employee into the trench without protection. 1, 2021).īefore the court was an Occupational Safety and Health Review Commission determination that Angel Brothers Enterprises was properly cited for a willful violation as a result of an employee working in a trench without cave-in protection. Last month, a Fifth Circuit panel affirmed a $35,000 willful citation and penalty against a Texas highway construction business, ruling that the employer was liable for a project supervisor's intentional disregard of safety measures.
Every employer understands the importance of actively ensuring employee safety and compliance with Occupational Safety and Health Act (OSH Act) standards, but a recent federal appeals court decision provides additional incentive for employers to ensure that their supervisors share this understanding.