Federal Circuit Holds Contractors Liable for OSHA Violation by Employees | Saul Ewing Arnstein & Lehr LLP

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In a recent decision by the United States Circuit Court of Appeals for the Fifth Circuit, a road construction contractor in Texas was found liable for the involvement of its supervisor in a subordinate employee’s violation of workplace safety regulations. See Angel Brothers Enterprises, Ltd. against Walsh, No. 20-60849, 2021 WL 5627103 (5th Circle 1 Dec 2021).

The contractor Angel Brothers Enterprises, Ltd. (the “Contractor”) installed a concrete drain pipe along a street in LaPorte, Texas. The contractor had normally used a safety measure called “benches” for the walls of the excavation, but on the final day of the project the excavations were too close to the road to use the banking method. The contractor’s safety manager advised his foreman to have the crew use another safety measure, known as a trench box, to guard against collapses while excavating.

The next day, during his inspection, an Occupational Safety and Health Administration (“OSHA”) compliance officer issued a subpoena for the contractor because the contractor’s foreman had instructed a crew member to work on the excavation without a trench box or other safety precautions.

In a 2-1 decision, the Fifth Circuit upheld the decision of the Occupational Safety and Health Inspection Committee (the “Commission”), upholding the subpoena finding that the Contractor’s violation was intentional and a US$35,000 penalty -dollar fixed. The Fifth Circuit ruled that the foreman’s knowledge and willful acts were imputed to the contractor on the basis of general principles of representation and vicarious agent liability.

The Fifth Circuit declined to extend the exception outlining it WG Yates & Sons Const. Co. v. Occupational safety and health check Comm’n, 459 F.3d 604 (5th Cir. 2006), which states that if a supervisor’s own conduct constitutes the OSHA violation, the supervisor’s knowledge should be attributed to his employer only if the supervisor’s misconduct was foreseeable. The exception did not apply here because “authorizing someone else’s infraction is not the same as committing the infraction itself”, meaning that the exception applies only if the supervisor committed the infraction, and not as is the case here to allow another to commit the infraction.

This case illustrates both the far-reaching nature of vicarious liability and the importance of effective enforcement of safety regulations.

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