OSHA FAQ Series (FAQ #2: Unpreventable Employee Misconduct Defense)

Back in March of this year, we answered five frequently asked questions related to OSHA inspections.  We received positive feedback from that post along with several requests to address new OSHA-related questions.  Accordingly, we started a new, monthly OSHA FAQ series last month, with the first FAQ post addressing potential triggers for OSHA inspections.

In this post, the second in the regular OSHA FAQ series, we focus on two common defenses to OSHA citations – “Lack of Employer Knowledge” and “Unpreventable Employee Misconduct,” and again, we have provided both a text version of the answer, and a webinar version with slides and audio.

QUESTION: OSHA cited my company because an employee was found not wearing certain personal protective equipment (PPE).  There is no dispute the employee was not wearing the PPE, or whether the PPE was required, but the employee was violating our strict PPE policy.  Do we have any defenses?

Click here to view a video response (WMV video format).

Depending on the circumstances, you may have several defenses, including: (1) lack of employer knowledge; and (2) unpreventable (or unforeseeable) employee misconduct.

Employer Knowledge

To establish that any violation of a specific standard (whether it is characterized as Willful or Other than Serious), OSHA bears the burden of proving by a preponderance of evidence:

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

The final requirement, that the employer had knowledge of the condition for which it was cited, can be established by OSHA proving either that: (1) the employer had actual, direct knowledge of the violation; or (2) with the exercise of reasonable diligence, the employer should have known of the violative condition.

Employee Misconduct

The “Employer knowledge” defense is closely related to the “Employee Misconduct” defense, but there are two key differences between them.  First, whereas it is OSHA’s burden to prove that the employer had knowledge of a violation, the employee misconduct defense is an affirmative defense, which means the employer bears the burden of proof.  Second, employer knowledge is a single element defense -- the employer either had knowledge (actual or constructive knowledge) or it did not.  The employee misconduct defense has several elements, all of which much apply for the employer to prevail.

As set forth in OSHA’s Field Operations Manual, to prevail on the affirmative defense of “Unpreventable Employee Misconduct – Isolated Incident,” the employer must show that it:

1. Established a work rule adequate to prevent the violation;
2. Effectively communicated the rule to employees;
3. Established methods for discovering violations of work rules, and yet did not know about an isolated violation of the work rules; and
4. Established effective enforcement of the rule when violations are discovered.

In the case presented in this FAQ, the employer would have sufficient evidence to prove the Employee Misconduct defense if you it can demonstrate that:

1. Employer has an established PPE policy that addresses the type of PPE for which the employer was cited;
2. Affected employees (including the employee who was found not wearing the PPE) have been trained on the PPE policy;
3. Employer conducts regular audits of the workplace to ensure employees are following the PPE policy; and
4. Employees are disciplined when they are found to be in violation of the PPE policy (or other safety rules).

Documentation is the key to all of these elements. Indeed, I tell my clients all the time, “in OSHA’s mind, if it’s not documented, it didn’t happen.”

In most cases employers are able to produce a procedure and some training records, but often struggle to present written evidence that they are actively supervising their employees to ensure compliance with safety policies, and struggle even more to demonstrate that they enforce violations through discipline.  As such, an employer’s policies should be written and readily accessible.  Employers should also maintain written records of training, including dated sign-in sheets, training agendas, and test/quizzes (invariably, when employees are interviewed by OSHA, they forget all the training they have received), document audits and audit findings, and issue written discipline (even document it when  you issue a verbal warning).

One final note, if the employee in this scenario is a management representative, there is a corresponding "Unpreventable Supervisory Misconduct" defense, but the threshold employers must meet to prevail on this defense is much higher, because the knowledge of supervisory employees is generally imputed to the employer.

Click here to view a video response (WMV video format).