Non-Compliance, and the Knowledge of a SupervisorJuly 1, 2013
Knowledge is power, they say. With so many administrative regulatory programs, such as OSHA, the knowledge of a supervisor of a non-compliant condition is the foundation that agencies use to prove willful or serious-level violations of regulatory standards. OSHA cases provide a good backdrop for study of how knowledge convicts.
Actual or Constructive Knowledge
An agency’s proof of a willful violation traditionally requires actual supervisor or manager knowledge. “Should have known” constructive knowledge is not enough. Under OSHA, a willful violation is one committed with intentional, knowing or voluntary disregard for the requirements of the OSHA Act, or with plain indifference to employee safety. A showing of evil or malicious intent is not necessary to establish willfulness.
A willful violation is differentiated from a non-willful violation by an employer’s heightened awareness of the illegality of the conduct conditions, and by a state of mind—conscious disregard or plain indifference for the safety and health of employees.
In contrast, the opposite of a willful state of mind is a supervisor’s or company’s good-faith and directing efforts to comply with the requirements of the standard—as opposed to making a judgment call to not comply with the unambiguous mandates of an OSHA standard.
An employer is responsible for the willful nature of its supervisors’ actions to the same extent that the employer is responsible for its knowledge of violating conditions. Such supervisory knowledge is said to be legally “imputed” to the employer.
If a supervisor attempts to comply with the mandates of an OSHA standard but doesn’t comply 100 percent, typically that does not represent a willful violation. “Serious” citations require a lower threshold of proof of supervisory knowledge, with a second option of proof where no actual knowledge of a violation exists, i.e. “constructive” knowledge, which is a “should have known” or “in plain view” concept.
Under either formulation, actual or constructive, you can see how vitally important the OSHA inspector’s worksite walkaround interview of the supervisor or lead person becomes. It also highlights the importance of the determination of who is a “supervisor.”
Authority and Power of PositionA supervisor is someone clothed with authority over the worksite and/or workers performing the tasks or assignments. It can be by actual control or the right to control to stop the work or unsafe acts. It can include who instructs or assigns the jobsite tasks, as well as the right to hire or fire and even the right to recommend who to hire, fire or discipline. It can be someone who oversees safety equipment and job assignments.
The regulatory consequences of supervisors’ awareness of OSHA Act standards, compliance efforts and non-tolerance of unsafe employee acts should be subjects included in supervisor training. MF
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