By: Geoffrey S. Pope Published: June 2020

Rare OSHA Win for an Employer Based on "Unpreventable Employee Misconduct"

On occasion, I’ve cautioned against over-enthusiasm for the “unpreventable employee misconduct” defense in OSHA contest proceedings. Basically, that’s because the requirements to establish that defense are more exacting than most people think.

In general, especially when the citation contains a limited number of items (none of which allege “Willful” or “Repeat” violations) it is often the wiser course to try to negotiate a compromise with OSHA, rather than taking a citation contest to trial.  The government, in addition to having important evidentiary and procedural advantages, will be opposing you with its corps of specialized, taxpayer-supported attorneys.

And although accepting even a single “Serious” violation can have consequences greater than the default monetary penalty (currently $13,494) an employer’s legal fees and expenses, in going through even a “simplified proceeding” and a trial, can easily cost more than the recommended penalty.  Given, also, the importance of being viewed by OSHA as a safety-conscious employer, you should contest your OSHA citation only if you have a solid basis to do so.

That the unpreventable employee misconduct defense does not often succeed is not to say, however, that it never succeeds. 

A recent case in which the defense prevailed involved two employers, Brubacher and Flagger Force, on a project to install a water line along a Pennsylvania roadway.  The work took place within the northbound lane and shoulder of Pottstown Pike, a multi-lane road, and required an adjustment to the road’s regular traffic pattern.  The approved traffic control plan shifted traffic from the northbound lane into what was ordinarily a middle lane for turning.  Cones were placed to divert traffic, and provide a barrier between northbound and southbound vehicles.  On the northbound side of the road, Brubacher (the general contractor) excavated land to permit a subcontractor to lay the water pipes in the ground.

Once the pipe was in, Brubacher employees covered the trench, and paved over the surface.  Flaggers provided by Flagger Force (one each at the worksite’s north and south ends) assisted in making motorists traveling in both directions aware of the changed traffic pattern. Flagger Force had worked with Brubacher on previous projects, furnishing traffic control services, and training Brubacher employees.

 Before the job got underway, Brubacher’s supervisor met with the Flagger Force personnel, inspected the entire worksite, and ensured that advance warning signs were installed on both sides of Pottstown Pike (as well as along the Route 322 exit ramp, which brought traffic onto Pottstown Pike about 250 feet from the worksite).  When it became apparent that the traffic control pattern was not working as expected, Brubacher’s supervisor worked with the Flagger Force employees, to adjust how much time motorists had to enter the new traffic pattern, and to improve the visibility of the signs for drivers entering Pottstown Pike from the Route 322 exit ramp. These changes were maintained through the first three days of the project.

On the project’s fourth and last day, the two Flagger Force employees sent to the site were different from those sent on the preceding days.  These workers set up warning signs only on the northbound side of Pottstown Pike, and omitted the advance (“Flagger Ahead”) signs on the southbound side, and along the Route 322 exit ramp.

Late in the morning of this fourth day, a northbound car on Pottstown Pike failed to adhere to the traffic control pattern, and struck a Flagger Force employee, who suffered serious injuries.  Following investigation by local police and by OSHA, both Brubacher and Flagger Force were issued “Serious” citations, for failing to post construction areas with legible warning signs at points of hazard.  Both employers contested their citations, and the two contests were consolidated for trial.

After trial, the Administrative Law Judge found that the Secretary had established against both respondents the four elements of the violation (the applicability of the standard; a violation of its terms; actual or constructive knowledge on the employer’s part; and employee access to the hazardous condition).  In so doing, the ALJ rejected respondents’ argument that the approaches to the worksite were not “points of hazard,”  and reiterated the principle that any employee in charge of others qualifies as a “supervisor,” for purposes of imputing to the employer knowledge of the violative condition.

Despite the Secretary having established all the substantive elements, the ALJ vacated both citations, based on the “unpreventable employee misconduct” doctrine.

To establish the defense of unpreventable employee misconduct, the employer must show that it: (1) established specific work rules addressed to the conditions in question; (2) adequately communicated those rules to its employees; (3) took steps to discover infractions; and (4) effectively enforced the rules, when violations were discovered.

As for Flagger Force, it was undisputed that it had both general and specific work rules requiring advance warning signs.  The Secretary conceded, also, that Flagger Force had satisfied the second element, with extensive training emphasizing the need for advance warning signs.

As for detecting violations, Flagger Force conducted random checks of worksites to ensure compliance. Its inspection process examined 41 separate issues, including whether signage was correct, whether employees were abiding by MUTCD, and whether they were acting safely. Additional measures included observing crew leaders at least twice per month, an auditing system to randomly visit at least 20% of the company’s worksites per month, and an escalating system of discipline, when infractions were found.

The ALJ concluded that there was no reason why Flagger Force should have anticipated a departure by its crew leader from its training program and written work rules, and that the crew leader’s failure to set up appropriate warning signs was the result of unpreventable employee misconduct.

Likewise, the ALJ ruled that Brubacher had taken reasonable steps to ensure that the traffic control plan (including the advance warning signs) would be appropriately deployed. Brubacher’s supervisor performed regular safety inspections to confirm that such signs were in place.  Brubacher trained its own employees about flagging, and retained a reputable expert in traffic control. Although hiring a qualified expert did not relieve Brubacher of all further responsibility, Flagger Force’s stature was relevant as to what direct supervision by Brubacher was necessary.  Brubacher’s supervisor had provided instructions, conducted periodic inspections, and obtained verbal confirmation that the necessary signage was in place, before work commenced at the site  That was sufficient to rule out charging Brubacher with constructive knowledge of the violation, and the citation against it was therefore vacated.

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