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.”