OSHA Must Prove “Knowledge” In Order to Prove a ViolationMar 27, 2018
In May 2017, my client’s employee inexplicably and without warning jumped into a trench that was more than five (5) feet deep. The trench immediately began to collapse engulfing the employee up to his waist. Despite being extricated within minutes, the employee died as a result of the immense pressure that the Class C soil had placed on this femoral artery. My client, decimated by the accident and the loss of his friend, assumed that he had violated the OSH Act. Not so fast. The employer lacked “knowledge” that the employee would expose himself to the hazard and, therefore, did not violate the OSH Act.
The Secretary of Labor has the burden to prove that the employer (through management), knew (actual knowledge), or should have known “with the exercise of reasonable diligence” that the hazard at issue would manifest itself (constructive knowledge). Many contested OSHA citations come down to whether the employer had constructive knowledge. This requires an analysis of “reasonable diligence.” “Determining whether an employer exercised reasonable diligence requires the Review Commission to consider a number of factors, including: (1) whether Respondent had adequate work rules and training programs; (2) whether management exercised adequate supervision of its employees; (3) whether Respondent performed inspections of the area in question; and (4) whether Respondent took measures to prevent the occurrence of violations.” Secretary of Labor v. Latshaw Drilling & Expl., LLC, 2016 WL 6472835, at *6 (Sept. 13, 2016).
Because the employee had been trained not to enter the trench, coupled with the fact that there was no instruction (by management) nor any need to enter the trench, the employer lacked the requisite knowledge. Therefore no violation.
Always be on guard for knowledge-based defenses when evaluating whether to contest OSHA citations. Accepting any citations (including Other-Than-Serious), can have significant downstream liability.
About the Author: James F. Laboe