Page 58 - MetalForming July 2013

You and The Law
By Douglas B.M. Ehlke
Non-Compliance, and
the Knowledge of a Supervisor
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 foun- dation that agencies use to prove will- ful or serious-level violations of regu- latory standards. OSHA cases provide a good backdrop for study of how knowl- edge convicts.
Actual or Constructive Knowledge
An agency’s proof of a willful viola- tion traditionally requires actual super- visor or manager knowledge. “Should have known” constructive knowledge is not enough. Under OSHA, a willful vio- lation is one committed with inten- tional, 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 will- fulness.
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 dis- regard or plain indifference for the safe- ty and health of employees.
In contrast, the opposite of a willful state of mind is a supervisor’s or com- pany’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 vio- lating conditions. Such supervisory knowledge is said to be legally “imput- ed” to the employer.
If a supervisor attempts to comply with the mandates of an OSHA stan- dard but doesn’t comply 100 percent, typically that does not represent a will- ful violation. “Serious” citations require a lower threshold of proof of supervi- sory 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 vital- ly 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 “super- visor.”
Authority and Power of Position
A supervisor is someone clothed with authority over the worksite and/or workers performing the tasks or assign- ments. 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 super-
visor training.
MF
Doug Ehlke, a national board-certified civil trial lawyer, has for more than 30 years represented metalforming companies in OSHA litigation and in labor-union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and envi-

ronmental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South Federal Way, WA 98003-3705 tel. 253/839-5555
fax. 253/874-5475 dehlke@ehlkelawoffices.com

56 MetalForming/July 2013
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