The Rogue Supervisor, OSHA and the Burden of Proof

Posted 1:44 PM by Michael Fox

Those three items sum up the important aspects of today's decision by the 5th Circuit, W.G. Yates & Sons Construction Co. v. Occupational Safety & Health Review Commission (5th Cir. 8/4/06) [pdf]. Judge Jolly succinctly sets out the factual background:

In this case it is not disputed that Olvera was a supervisory employee, that his own conduct is the OSHA violation, and that he knew his conduct was violative of the law and of company policy.

The question -- with nothing more, had the Secretary proved a willful violation of OSHA?

Noting that the circuits are split, the 5th Circuit takes a slightly different approach, holding that in such cases the Secretary has the burden of showing that the conduct of the foreman should be imputed to the employer. It is not imputable where "the employer’s safety policy, training, and discipline are sufficient to make the supervisor’s conduct in violation of the policy unforeseeable."

Justice Reavley dissents and would place the burden on the employer to show that the acts were unforeseeable as an affirmative defense.

Rather than being a "what's the difference" type of opinion; the placement of the burden of proof often determines who wins and who loses. Having the burden placed on the shoulders of OSHA gives employers with good safety programs protection from strict liability, even when it is a supervisor who breaks the rules.

A compliment should go to W.G. Yates and Sons Construction Co. for taking this matter up. This was not a decision that it makes "economic sense" to appeal since the penalty in question was $5,000. However, establishing the principle of where the burden lies is important for all who litigate these issues. Given the split in the circuits it may even be the case that puts the issue before the Supreme Court.

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