December 2003
By ALEXANDER A. MIUCCIO, CIC Legal Counsel
Construction site conditions are subject to extensive safety and health standards under the federal Occupational Safety and Health Act of 1970. Violations of such standards may be triggered by the conduct of either the employer or the employee.
Unsafe
practices by employees on the work site, however, may not always result in OSHA
liability for an employer. For example, if an OSHA violation is the product of
"unpreventable" or "unforeseeable" employee misconduct, that wrongdoing on the
part of the employee may provide sufficient grounds for the employer to avoid
OSHA liability. However, careful effort and advance planning must be used by
the employer to enhance the likelihood of successfully escaping OSHA liability
based on unforeseeable employee misconduct. The federal case of D.A. Collins Construction Co., Inc. v.
Secretary of Labor illustrates what is required.
Background
D.A. Collins Construction was rebuilding a bridge on the New York State Thruway. Under the supervision of a foreman, two of Collins' carpenters were working on a platform just below the concrete deck of the bridge. Because they were working at a great height, Collins' safety rules required that they use safety belts and that they "tie off lanyards" (attach their safety lines) to rods extending from concrete forms overhead. However, neither of the carpenters used the lanyards when walking along the platform on their way to or from lunch or breaks. According to one of the carpenters, the foreman also did not "tie off" when walking to and from the carpenters' work site and did, in fact, observe the two carpenters moving along the platform without tying off. While not tied off, one of the carpenters fell to his death.
Based on the carpenters' alleged practice of walking along the platform while not "tied off," the Secretary of Labor cited Collins for a "serious violation" of OSHA regulations. An administrative law judge thereafter found that the Secretary of Labor had proven that Collins had violated OSHA Section 1926.105(a)Ñwhich specifies that safety nets must be provided when work places are more than 25 feet above the ground or water surface, where the use of ladders, scaffolds, attached platforms, temporary floors, safety lines, or safety belts is impracticable. The ALJ also held that Collins had not established the affirmative defense of "unforeseeable employee misconduct." Collins appealed to the Occupational Safety and Health Review Commission for review of the ALJ decision. Following the commission's denial, Collins appealed to the United States Court of Appeals for the Second Circuit.
Decision
Before the appellate court, Collins argued, among other things, that the commission had erred in determining that it had failed to establish the "unforeseeable employee misconduct" defense. The court disagreed.
To establish the affirmative defense of "unforeseeable employee misconduct," an employer must prove four facts: that it established work rules to prevent the violation; that these rules were adequately communicated to the employee; that it took steps to discover violations and that it effectively enforced the rules when infractions were discovered. At the administrative level, the ALJ had determined that Collins had failed to satisfy the third and fourth elements by not adequately enforcing its safety policies. The court concurred, holding that the ALJ's finding was supported by substantial evidence.
The court initially explained that there was no evidence in the record demonstrating that Collins took specific steps to ensure that its supervisors were fulfilling their duty to discover violations of the work rule requiring carpenters to tie off. Collins' claim of adequate enforcement, according to the court, was equally unavailing. For at least one week, the foreman not only failed to enforce the tie-off safety rule, but actually tolerated its violation by the two carpenters. Finally, the foreman himself failed to abide by the safety rule. Such supervisory violations, if nothing else, allows an inference that the employer's safety program has not been adequately enforced.
In light of the uncontested evidence, the court accordingly concluded that the commission's determination that Collins failed to prove the affirmative defense of "unforeseeable employee misconduct" was correct. Collins' appeal was therefore denied.
Commentary
To avoid OSHA violations, an employer must be vigilant in the implementation and enforcement of its safety program. Indeed, this very vigilance is also the key to successfully asserting the unforeseeable employee misconduct defense in response to an OSHA citation based on actions of a "problematic" employee.
To that end, an employer must maintain systematic documentation to demonstrate that it has updated its safety program according to OSHA standards and that it has consistently trained, and periodically retrained, all employees, including newly hired employees. Monitoring and supervision of its employees to ensure that they are complying with the safety rules is also critical. Finally, once infractions are discovered, the employer must respond to those violations by disciplining the non-compliant employees.
The "Loose Cannon" defense can be extremely valuable in protecting a construction industry employer from liability for the unsafe acts of certain unruly, reckless or otherwise problematic employees. The finding on the particular facts of this case, however, was correct. To properly utilize this defense, an employer must always maintain good records of its safety program, implement the program diligently and vigorously enforce it when violations occur.
About the Author: Mr. Miuccio is a partner in the law firm Goldberg & Connolly and legal counsel to the Construction Industry Council of Westchester and Hudson Valley, Inc. Burt P. Natkins, Esq., senior associate with the firm assisted in the preparation of this article.