Seyfarth Synopsis: Commission's approval of undocumented training provides blueprint for employee misconduct claims for employers going forward.
In a July 28, 2020, Occupational Safety and Health Review Commission (OSHRC) decision, Angel Brothers Enterprises, Ltd., (Docket No. 16-0940), the Commission upheld Administrative Law Judge (ALJ) Heather A. Joys' decision affirming a willful OSHA citation, rejected Angel Brothers Enterprises, Ltd. (Angel's) unpreventable employee misconduct (UEM) affirmative defense, and assessed a $35,000 penalty.
Angel is a construction contractor that digs over 1,000 excavations each year. On December 8, 2015, Angel began working on the installation of a concrete drainage pipe alongside a road in LaPorte, Texas. The following day, an OSHA compliance officer (CSHO) arrived at the worksite to conduct an inspection. During the inspection, the foreman admitted to the CSHO that he had allowed an employee to work in the excavation, which was no longer benched and lacked a trench box. The Agency issued a willful violation under the trenching construction regulation.
The Company argued that the violation was the result of employee misconduct, including the difficult-to-prove area of supervisory misconduct. To establish employee misconduct, an employer must be able to show that it had (1) a safety rule in place addressing the hazard, (2) effective training on that safety rule, (3) adequate supervision of employees for compliance with that safety rule, and (4) effective enforcement of violations of the safety rule. Supervisory misconduct requires a further showing of unforeseeable conduct on the part of the supervisor.
As to the UEM element requiring effective enforcement of safety rules, the ALJ held that Angel did not effectively enforce its safety rules upon discovering violations. Specifically, the ALJ focused on the employer's failure to identify or correct an employee's answers to three questions about cave-in protection on a "Pre-Task Plan" form for the project on three consecutive days. ALJ Joys considered this three-day pattern analogous to the facts in Dana Container, Inc., 25 BNA OSHC 1776 (No. 09-1184, 2015), aff'd, 847 F.3d 495 (7th Cir. 2017), in which the Commission found that a consistent failure to correct errors on "entry permit" forms demonstrated a lack of enforcement.
Though the Commission affirmed that the employer had not proved UEM, the Commission provided helpful guidance on the elements required for proving the UEM defense. Judge Joys held that Angel could not prove adequate communication of the safety rule, because its training was on-the-job, verbal, not fully documented, and contradicted by other testimony. The Commission instead found the evidence "more than sufficient to meet Angel's burden of proving adequate communication," despite the lack of documentation. The Commission relied on testimonial evidence of toolbox talks, orientation training sessions, competent person training, and Spanish-language instruction for Spanish-speaking employees.
Employee misconduct is the most common defense to OSHA citations. Employers should be aware that many citations are defensible and should be contested or appealed, particularly where they result from incidences of employee misconduct. Though OSHA is a document-driven agency, the Commission has confirmed that training documentation cannot and need not exist in a written form for all safety training that takes place. Employers should consult with counsel to develop any defense to OSHA citations.
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