Rogue supervisor adjusting plans on work site

Raising a Rogue Supervisor Defense to an OSHA Citation

OSHA violations expose employers to considerable penalties that can threaten the future of their business – even when violations result from the conduct of an employee or supervisor.

Depending on the circumstances, however, employers may have viable options to raise a defense by challenging the “employer knowledge” requirement of a violation and raising the affirmative employee misconduct defense.

This is particularly true in situations where employers have taken the necessary steps to create sound written policies, identify hazards, and prevent violations, but have supervisors or managers who fail to abide by those policies or otherwise go “rogue” in acting outside of accepted company guidelines.

Challenging the “Employer Knowledge” Requirement of an OSHA Violation

To establish a violation of an OSHA standard, OSHA must prove four essential elements by a preponderance of evidence (meaning more likely than not). Specifically, OSHA must prove that:

  1. The cited standard applies;
  2. The employer failed to comply with the cited standard;
  3. Employees had access or were exposed to the condition; and
  4. The employer had knowledge of the violative condition.

Although employers can defend against enforcement actions by attacking any of these elements, defenses targeting the fourth element, an employer’s knowledge of a hazardous condition, are among the most common. These defenses focus on issues of actual and constructive knowledge. This means that in order to prove the employer knowledge element of its burden, OSHA must show that:

  1. The employer knew of the condition (actual knowledge); or
  2. The employer should have known, through exercising reasonable diligence, of the condition (constructive knowledge).

There are nuances to both of these elements, largely because proving what a corporation or other legal entity “knows” is a much more challenging task than proving the knowledge of an individual. As such, OSHA has held that the actions and knowledge of an employer’s agents, including supervisors, are generally imputed to the employer. In cases involving supervisors specifically, OSHA may additionally argue that the violation was reasonably foreseeable.

In other words, if OSHA can prove a supervisor had actual or constructive knowledge of a violative condition, that knowledge is imputed to the employer and would satisfy OSHA’s burden of proving employer knowledge.

However, that’s not always the case.

When a Supervisor Goes Rogue

Employers may also raise the “unpreventable employee misconduct” defense and apply it to employees in supervisory roles. This defense essentially argues that a supervisor engaged in rogue or unforeseeable misconduct that cannot be imputed to the employer.

Because it is an affirmative defense, employers who assert unpreventable employee misconduct have the burden to prove that they have:

  1. Created rules intended to prevent the violation;
  2. Adequately communicated the rules to employees;
  3. Took measures to discover violations; and
  4. Effectively enforced the rules upon discovery of violations.

While unpreventable employee misconduct can be an effective defense in many cases, it is a more challenging argument to assert when the employee in question is a supervisor, as OSHA will often argue that a supervisor’s involvement in misconduct is evidence that the employer’s safety policies are lax or ineffective.

As such, the success of such a defense is often hinged on an employer’s ability to prove that it took reasonable steps to identify and discourage violations. What constitutes “reasonable” depends on several factors, including whether employers fulfilled obligations to create adequate training programs for employees and supervisors, supervise employees, conduct site inspections, anticipate hazards, and enforce work rules through a meaningful reprimand system or disciplinary policy.

Employers with the strongest cases are typically those who can present verifiable evidence of their efforts in monitoring supervisors for compliance with the safety rule, such as documented audits or performance reviews, and enforcing its disciplinary system. Evidence showing that the supervisor was a trusted team member with no prior record of violations or misconduct can also help employers argue that their violative act was “unforeseeable or idiosyncratic” or constituted “rogue conduct.”

Citation Defense Strategies from Proven OSHA Attorneys

Because the rogue supervisor defense requires employers to reconcile citation defense strategies involving employer knowledge and employee misconduct and meet a more onerous burden of proof, raising it effectively demands the insight of proven OSHA defense attorneys.

At Hendershot Cowart P.C., our OSHA defense team has decades of experience defending employers against enforcement actions and providing the proactive counsel employers need to prevent citations in the first place. If you wish to speak with an attorney about your available options and how our firm can help, call (713) 489-2028 or contact us online.

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