Yesterday we looked at a case in which a worker for SSA Pacific committed a U.S. Occupational Safety and Health Administration (OSHA) violation right in front of an OSHA inspector. Confronted, the worker admitted that he committed the violation and that he should have known better. The inspector cited the employer for a violation of the longshoring standards as a result. The employer appealed the citation, arguing “unpreventable employee misconduct.”
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What did the Administrative Law Judge (ALJ) say?
Four Conditions
“Unpreventable employee misconduct” is an affirmative defense—you acknowledge at the outset that the circumstances are, essentially, as OSHA described. But you can then present evidence that the violation occurred in spite of your efforts to prevent it and as the result of the worker’s unauthorized actions.
When you argue that a violation occurred because of employee misconduct that you could not have prevented, you must be able to show (remember, an affirmative defense places the burden of proof on you) that these four things are true:
- You did not know about the violation. This defense often fails at this point, because employers sometimes fail to understand that “knowledge” can be either actual or constructive. Actual knowledge means that the employer actually knew of the violative condition—and if a supervisor knows of the violative condition, the supervisor’s knowledge is generally imputed to the employer. An employer is said to have constructive knowledge of a violation if it can be shown that the employer failed to use reasonable diligence to discern the presence of the violative condition.
In the SSA Pacific case, this condition was complicated slightly by the fact that the employee who walked up the gangplank was, in fact, a supervisor. SSA Pacific argued that it would be improper to impute the supervisor’s knowledge of his own wrongdoing to SSA Pacific because it was not foreseeable that he would access the gangway. The ALJ agreed, in part because SSA Pacific was able to demonstrate that it had taken reasonable measures to prevent the violation from occurring—it had ordered the midships gangway secured out of use earlier that morning, and informed all personnel that they should use the stern ramp to access the ship. When the gangway was lowered later, SSA Pacific again attempted to have it raised and secured. The ALJ concurred that SSA Pacific had made reasonable efforts to prevent the violation.
With respect to constructive knowledge, the ALJ found that the violative condition did not exist for long enough for the employer to find out about it. The supervisor walked up the ramp only once, after which it was secured. That unanticipated infraction, the ALJ ruled, was far too brief to attribute constructive knowledge to SSA Pacific.
- The employee violated a work rule that would have prevented the violation. Workers cannot be said to have committed misconduct unless they have done something that the employer has forbidden.
SSA Pacific had a work rule that required longshoremen to use the stern ramp for ingress and egress and to avoid the gangway ramp amidships. The rule was intended to prevent the use of the gangway when it would be unsafe; it was implemented whenever something prevented the gangway from being safely lowered. In this particular case, the ship’s chief mate and SSA Pacific’s lead supervisor had decided, on the basis of the tide and the broken winch, to raise the gangway to make it unavailable for use. So SSA Pacific met this condition of its defense.
- The employee knew of the work rule because it had been adequately communicated. In addition to making a work rule in the first place, you must ensure that workers know what the rules are. Note that work rules can be communicated orally as needed—which is what happened in the SSA Pacific case.
SSA Pacific had ensured that the decision about the midships gangway was communicated to everyone, from the ship’s crew to SSA Pacific’s superintendents to the longshoremen. All employees had been told that the gangway was supposed to be raised and the proper means of ingress and egress was the stern ramp. Even the supervisor who walked up the gangway admitted that he knew it was prohibited. SSA Pacific met this condition of its defense.
- The work rule had been enforced in the workplace. It’s very important to be able to demonstrate that you have an enforcement policy for safe work rules and that you have, in fact, made use of it.
SSA Pacific was able to show that it had a graduated disciplinary policy in place that applied to its full-time employees and to its longshoremen (who were sent to the worksite by the union hall on an as-needed basis). SSA Pacific was also able to show that it had implemented its disciplinary policy, although not with respect to the particular work rule being discussed, because it had never been an issue until the day of the inspection. SSA Pacific did discipline its supervisor under the policy for accessing the makeshift plank in his attempt to abate the hazard. SSA Pacific met this condition of its defense.
Because SSA Pacific was able to demonstrate that it met all four conditions of the unpreventable employee misconduct defense, the ALJ ruled that the employer “could not have taken any additional actions to prevent this condition from occurring,” adding, “Even though a supervisor’s involvement in a violation typically indicates that an employer’s safety program is lax, in this instance the Court finds [the supervisor’s] actions to be idiosyncratic, unforeseeable, and inconsistent with the work rule governing access to the gangway.”
The citation was vacated.
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