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'Rogue supervisor' ruling won't shield most employers from OSHA violations

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Employers should not rely on a narrowly carved exception involving rogue supervisors to the general rule that they are liable for workplace safety violations when their supervisors know about the hazards, according to a recent court decision.

The 11th Circuit Court of Appeals based in Atlanta, Georgia affirmed on Jan. 8 that the Occupational Safety and Health Review Commission properly held an employer, Claxton, Georgia-based Quinlan Enterprises, responsible for violating Occupational Safety and Health Act standards when two employees, a foreman and a subordinate, were caught working without fall protection and using a stepladder in an unsafe manner, according to the court's decision in Quinlan v. U.S. Department of Labor.

In arguing against liability for the workplace safety violations, Quinlan cited the 11th circuit's decision in a 2013 case called ComTran Group Inc. v. U.S. Department of Labor in which the court ruled in favor of the employer because of the actions of a rogue supervisor. In that case, the appeals court found it would be “fundamentally unfair” to ascribe the supervisor's knowledge to the employer because the supervisor was the one engaging in the misconduct and imputing knowledge would release the Occupational Safety and Health Administration from its burden of proving the employer's knowledge of the violation. The court determined the fact that the supervisor, who normally serves as the “eyes and ears” of the employer, engaged in the misconduct essentially rendered the company “blind and deaf.”

But the 11th circuit rejected that argument in Quinlan and confirmed that the ComTran case represented a narrow exception to the general rule that a supervisor's knowledge of misconduct is imputed on the employer, according to the decision.

“It doesn't really make a ton of sense,” said Tawny Alvarez, Portland, Maine-based associate for Verrill Dana L.L.P. “You still have a supervisor who is failing to follow all of your prescribed safety precautions. We don't know where that line is going to be drawn now.”

A handful of employers have unsuccessfully tried to utilize the ComTran argument to void citations and penalties assessed by OSHA, but the commission has determined that the general rule applies in those cases, meaning employers should not look at ComTran as a “get out of jail free card,” said Cynthia Hackerott, Chicago-based senior writer/analyst, employment law, Wolters Kluwer Law & Business.

“The only time that ComTran is going to apply is when you have the rogue supervisor,” she said. “Otherwise, employers should pretty much expect that the supervisor's knowledge of an OSHA safety violation is going to be imputed to them. ComTran was the exception and Quinlan just emphasized that ComTran was an exception.”

Employers need to ensure their supervisors are properly trained, not just on substantive aspects of safety such as proper fall protection and lockout/tagout procedures, but on basic understanding of all worksite hazards and how to effectively communicate with employees to look out for hazardous situations and protect themselves, said Travis Vance, of counsel in the Charlotte, North Carolina office of Fisher & Phillips L.L.P.

“It's a very fascinating case,” he said. “I think that going forward it's going to be interesting when these types of situations come up whether that knowledge is going to be imputed to the employer. I think there are some long-term ramifications, and I think employers, especially in the 11th circuit, will definitely take notice of this decision.”