By: Thomas H. Welby Published: December 2014

"Constructive" Knowledge as an Element of an OSHA Violation

To withstand a contest to an OSHA citation, the Secretary of Labor must prove four elements by a preponderance of the evidence.  The first element is that the cited standard applies.  The second is a failure to comply with the cited standard.  The third is that one or more employees have had access to the violative condition.

The fourth and last element is probably the one most often litigated:  “actual” or “constructive” knowledge of the violation on the part of the employer.  This requires that the employer (including a supervisor whose knowledge can be imputed to the employer) have known or that the employer “could have known with the exercise of reasonable diligence” of the violative condition.

The OSH Act provides for an “unpreventable employee misconduct” defense to an OSHA citation.  This is an “affirmative defense,” because an employer who fails to assert it waives it, and the employer who does assert it has the burden of proving it.  The concepts governing the “unpreventable employee misconduct” defense resemble those related to “constructive knowledge” of a violation.

Since what constitutes “reasonable diligence” can vary, based on the facts of a given case, there is no precise standard of what constitutes “constructive knowledge.”  In Secretary v. J. Reed Constructors, Inc., for example, the OSHA compliance officer espied two workers in an aerial lift, applying Tyvek to the exterior walls of a school entrance undergoing renovation.  The lift was raised about 35 feet above grade, and neither man was tied off.  This plainly violated the OSHA standard requiring that a body belt be worn, and a lanyard attached to the boom or basket, when working from an aerial lift.

Charged with a “Repeat” violation, the employer in J. Reed conceded the applicability of the standard, failure to comply with the standard’s terms, and employee access to the violative condition.  Contesting the lone citation item — which, as a “Repeat” violation, carried a $14,000 penalty — the employer based its defense on (1) a claim that “the owners and the management of the company did not know that the violation was going on;” and (2) the affirmative defense that its employees’ failure to tie off was “unpreventable employee misconduct.”

As there was no evidence that the employer’s single supervisor onsite had observed the employees working from the aerial lift without fall protection, “actual knowledge” was disproved.  The Secretary was therefore required to rely upon “constructive knowledge” to establish the violation.

The Administrative Law Judge reviewed the evidence concerning the employer’s exercise of due diligence to discover, and prevent, its employees’ violative conduct.  The employer, it found, had a safety manual stating a “100% tie-off policy” when working 6’ or more above grade, but the manual was available only in English, whereas many of the company’s employees (including both employees seen in the lift by the compliance officer) were Spanish-speaking, and the manual was distributed only to supervisors.  No safety classes for the employees in the lift were held.

The supervisor in charge on the day of the inspection spoke only a few words of Spanish, was “all over the place” and “super busy” on the day of the occurrence, and explained his failure to see men working in the lift without tying off during the six hours they were applying the Tyvek to the exterior wall by stating “I can’t be everywhere all the time” and that “there’s no way to babysit everybody.”

The employer in J. Reed had two prior citations for employees’ failing to tie off while working from aerial lifts, and admitted that it generally neglected “Job Safety Analysis” procedures. described in the company’s safety manual as the “cornerstone” of its overall safety program.

Based on the foregoing, the ALJ in J. Reed concluded that the employer had failed to adequately train its employees, to monitor its employees’ use of fall protection, and to take measures to prevent fall protection violations.  It had no specific work rule requiring that employees working in lifts be tied off, and its safety program (such as it was) was communicated at the discretion of the supervisors, without sufficient efforts to impart specific rules to non-English speaking employees.

Despite being on notice (from past OSHA citations) that its employees at times failed to tie off while working from aerial lifts, J. Reed Constructors took no steps to ensure that the crew be monitored, and did not even discipline the crew when its infraction was discovered.  This failure to discipline, the ALJ found, signaled to the employees that the company did not take its own safety program seriously, and justified a finding of a lack of due diligence.

The ALJ in J. Reed rejected the “unpreventable employee misconduct” defense “for most of the same reasons the Secretary’s case for constructive knowledge succeeded.”  The defense is established by showing that the employer established a work rule to prevent the violation, adequately communicated the rule to employees including supervisors, took reasonable steps to discover violations of the rule, and effectively enforced it.  The ALJ found that the employer had established a rule, but that none of the additional necessary elements had been shown.  The citation and proposed penalty were therefore affirmed.

The OSH Review Commission took a more lenient approach in Secretary v. LJC Dismantling Corp., finding a lack of actual and constructive knowledge, and vacating a citation item that had been affirmed by the ALJ.

The item in question involved a failure to correctly plan a scaffold, which failure resulted in an injury.  The Secretary based an argument of “actual knowledge” based on a foreman’s testimony that he had seen the injured employee “on scaffold” at the beginning of the workday.  Other evidence, however, showed that the injured employee had not even begin to erect the scaffold when the foreman was on the roof, and that the accident occurred about two hours after the workday began, at which time the injured employee had been on the scaffold for only a few minutes.  This inconsistent evidence, the ALJ found, was insufficient to establish actual knowledge.

The Secretary’s insistence that the improperly-planked scaffold was in plain view, and should therefore have been known to the employer, was also rejected.  While the gap to the planking was in plain view, the commission found, nothing in the record showed that that defect existed while the foreman (or other supervisor) was in the area prior to the accident.  The injured employee completed the scaffold, climbed up, and was injured before finishing preparations to do his work.  Since he had not begun to erect the scaffold until two hours or less before the accident, there was not sufficient evidence to show that the condition was present for a long enough time that the employer should have known about it.

If you have and communicate safety rules, take steps to discover infractions, and enforce the rules by effective disciplinary measures, not only will you have a shot at establishing the “unpreventable employee misconduct” defense, but you will almost certainly have fewer OSHA violations.

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