Rogue Supervisor: How to Defend Against OSHA Citations Involving Supervisory Misconduct

摘要

Many accidents, safety incidents and OSHA citations in the construction industry are the result of misconduct or poor performance by a foreman or supervisor - failing to supervise employees for compliance with safety rules, failure to correct violations of safety rules or failure to follow safety rules themself. OSHA uses admissions from foremen and supervisors to establish "employer knowledge," that the employer knew or should have known of the alleged violation, a crucial element to any OSHA citation. Under most circumstances, this element can be satisfied when a supervisor, manager or foreman, who are agents of the employer, witnesses an employee exposed to a hazard and does nothing about it. But what happens when the supervisor, manager or foreman is the individual violating OSHA's regulations (and the Company's rules)? In the past, OSHA has tried to use the supervisor's bad act to impute liability on the employer, arguing that the supervisor's own knowledge of his bad act is sufficient to impute or infer knowledge of that bad deed onto the employer. But the existence of a rogue supervisor may create an affirmative defense that employers can argue and informal conferences and prove in litigation.