Imputing a Supervisor's Knowledge

Monday, August 28, 2006
Contributed by: Charles A. Mallard

In W.G. Yates & Sons Construction Co. Inc. v. Occupational Safety and Health Review Commission, --- F.3d. ---, 2006 WL 2193045 (5th Cir., Aug. 4, 2006), the Fifth Circuit addressed the question of when it is appropriate to impute a supervisor's knowledge of his own misconduct to the employer for the purposes of establishing the knowledge element of a "serious violation" citation under the Occupational Safety and Health Act ("OSHA").

Recognizing a split of opinions among the various federal circuits (notably the 3rd, 6th and 10th) the court held that a supervisor's knowledge of his own malfeasance is not imputable to the employer where the employer's safety policy, training, and discipline are sufficient to make the supervisor's conduct in violation of the policy unforeseeable. Because the Commission imputed a finding of knowledge, based solely on the supervisor's knowledge of his own misconduct without conducting a foreseeability evaluation, the court held that the Commission had relieved the government of its burden of proving a knowing violation and improperly shifted the burden of proof to the employer.

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