What To Do When the Supervisor Breaks the Rules

My Supervisor Violated the OSHA Standard. What Do I Do Now?

From SHRM Atlanta

Supervisors are supposed to set the tone, provide on-the-job training and consistently enforce safety processes.  What happens when the supervisor is the one who breaks the rules? OSHA decisions and OSHA compliance officer training expressly state that the employer’s entire safety program is suspect when its supervisors violate the standards. The higher up the supervisor, the bigger the problem. Not only does the supervisor’s bad conduct negatively frame the inspection and OSHA’s ultimate decisions, but the supervisor’s involvement has legal consequences.

  • OSHA will argue that the supervisor’s involvement makes it a near “open and shut” case because OSHA will claim that the supervisor’s violation also proves that the corporation had notice or knowledge of the violation. OSHA has the burden to prove that a standard was violated, a hazard exists, employees were exposed and that the employer knew or “should have known of the violation with the exercise of due diligence.”
  • Corporations do not have a flesh and blood body. Corporations learn of violations through supervisors; therefore, any supervisor’s knowledge of a violative condition will be imputed to the corporation.
  • So OSHA will claim that the supervisor’s violative act also satisfied OSHA duty to prove that the employer knew of the violative condition and that may blunt one of your most effective challenges to an OSHA citation. Many times, a violation did in fact occur and a lack of knowledge may be the only hope to avoid citation.

Although some OSHA personnel may think so, supervisor knowledge is not the silver bullet that ends the case. A number of decisions have required OSHA to prove more than the supervisor committed the violation in order to prove “employer knowledge.” The 4th and 11th U.S. Courts of Appeals require that OSHA must prove that the act was “foreseeable to the employer, which necessitates proof that the employees’ safety processes were flawed.”

CONTINUE READING AT SHRM ATLANTA

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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