On July 24, 2013, in Comtran Group, Inc. v. U.S. Department of Labor, the U.S. Court of Appeals for the Eleventh Circuit overturned a final decision of the Occupational Safety and Health Review Commission (“Review Commission”) and issued an important decision affecting employer liability under the Occupational Safety and Health Act (“OSH Act”) in a case involving supervisor misconduct.

A supervisor for the employer, Comtran Group, was digging in a six-feet deep trench with an unprotected five-feet high “spoil pile” at the edge of the excavation — a violation of an OSHA standard.  The case on appeal before the Eleventh Circuit involved the Department of Labor’s contention that it is appropriate to impute a supervisor’s knowledge of his own violative conduct to his employer under the OSH Act, thereby relieving the Secretary of Labor of her burden to prove the “knowledge” element of her prima facie case.  In reversing the Review Commission’s decision, the Eleventh Circuit answered the question of first impression for this circuit in the negative.

In disagreeing with the Review Commission, the Court found that the Secretary failed to show that the employer knew or should have known that the OSH Act was being violated.  To establish employer liability for OSH Act violations, the DOL must show all of the following:

  • The regulation cited applied;
  • It was violated;
  • That an employee was exposed to the hazard that was created; and
  • The employer “knowingly disregarded” the OSH Act’s requirements.

In Comtran, the DOL established the first three prongs of the four-prong test, but the Eleventh Circuit found that the DOL failed to prove the knowledge element. Even more importantly, the Eleventh Circuit decided that the DOL cannot meet its burden under the fourth prong by supervisory misconduct alone.

The Court noted that there’s a distinction between a supervisor’s knowledge of a subordinate’s misconduct, which can be imputable to an employer, and the supervisor’s knowledge of his own misconduct. An employer can only act through its agents, of course, and the supervisor is the employer’s “eyes and ears,” such that his knowledge is the employer’s knowledge. However, when the misconduct is the supervisor’s own, the employer in such instance has no “eyes and ears,” the Court stated. “It is, figuratively speaking, blind and deaf. To impute knowledge in this situation would be fundamentally unfair.” The result would be arbitrary and capricious, the Court said, and not in accordance with the law;  thus, it reversed the Review Commission’s decision.