Excavation safety standards violations not unpreventable employee misconduct

Abstract

In this case, a company contested OSHA citations issued to it for violations of excavation safety standards. A foreman, who was also the designated competent person onsite, sent employees into an unprotected trench. The company disciplined the foreman after the inspection and gave him a three-day suspension without pay.

With regard to the OSHA citation, the company argued, among other things, that the citation should be tossed out because the foreman’s actions were a result of “unpreventable employee misconduct,” which is an affirmative defense to an OSHA citation. To establish this affirmative defense, OSHRC has said the employer must show that it:

1. Has established work rules designed to prevent the violation;
2. Has adequately communicated the rules to its employees;
3. Has taken steps to discover violations of the rules; and
4. Has effectively enforced the rules when violations were detected.

In this case, OSHRC found that the company did not establish the affirmative defense.

OSHRC found that the company had work rules designed to prevent the violation, including procedures in the company handbook. The company also had adequately communicated rules to its employees and had taken steps to discover violations of the rules. Where it failed, however, to meet the affirmative defense was to show that it enforced its work rules. OSHRC said that the company did not provide any specific evidence to show that employees were disciplined for safety violations.

Full text decision

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