To briefly review the case: The construction company in question builds and installs water supply and sewer pipes. On July 10, 2009, while the company was performing trenching work to install water service lines at a Boston worksite, an OSHA compliance officer arrived for an inspection.
The officer found several safety violations along with conflicting stories from the workers, so the company was given several citations and $33,700 in fines. The construction company contested the citations and fines.
What OSHA Did
See yesterday’s issue for the beginning of the company’s defense. Here is the rest of the case.
Fourth, the safety director also testified that the supervisor had been disciplined for being in the trench without protection and that other employees had been disciplined for safety violations or work had been stopped to correct safety issues.
The company, however, did not present documentation of any disciplinary action it had taken in the previous 2 years, and it did not discipline the site superintendent for unprotected trenches on July 10, 2009, and an earlier incident in April 2009.
The ALJ upheld the citations and fines, and the contractor appealed to the Occupational Safety and Health Review Commission (OSHRC) and then the U.S. Court of Appeals for the 1st Circuit.
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What the Court Said
The court denied the contractor’s petition for review, saying there was substantial evidence to support the decisions by the ALJ and the OSHRC.
In addition, the court said that “an employer can be charged with constructive knowledge of a safety violation that supervisory employees know or should reasonably know about.” The court noted that it was reasonable to infer in this case that the site superintendent knew that the supervisor was in an unprotected trench.
This case demonstrates that merely providing safety training is not enough to protect an employer from liability. You also have a responsibility to make sure employees are complying with safety procedures taught in training.
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