‘Rogue conduct’ still meant long legal hassle

by on October 29, 2013 · 0 Comment POSTED IN: Workplace Safety Network

OSHA isn’t supposed to cite companies whose supervisors intentionally violate safety procedures. But they can’t always be sure if the supervisor is truly engaging in “rogue conduct” or ‘business as usual” for the company. Then companies are in for a long legal battle.

A supervisor with Comtran Group, Atlanta, allegedly dug a trench in an unsafe manner at a worksite. Specifically, he removed a silt fence between a trench and a spoils pile, risking cave-ins. He was the only person exposed to the hazard.

An OSHA inspector happened on the scene and issued a citation. Since the person in question was a supervisor, the CO said the supervisor’s knowledge is imputed to the employer (i.e., if the supervisor knows, the company knows) and thus the company is responsible.

A federal appeals court said no, this was a case of rogue conduct by the supervisor. However, to make that case, the company had to explain its safety training program for supervisors, and all it did to make sure supervisors would follow safety procedures and enforce them. Five execs testified before an administrative law judge. By the time the legal smoke cleared at a federal appeals court, the company won.

Take home: Remind supervisors that any misconduct on their part will not only set a bad example, but expose the company to a long legal fight at the very least.

And remind them that “rogue” or “intentionally” misconduct doesn’t have to mean bad intentions. In this case, for the supervisor’s part, he said he was so focused at trying to find a utility line near the trench that he missed that the trench had gotten too deep to be compliant with OSHA’s safety rules.

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