Should an employer be held liable for an employee's violation of an Occupational Health and Safety Administration (OSHA) standard and/or his or her employer's safety policies? While certainly all employers will answer this question negatively, the real answer is "it depends."

In general, employers are responsible for the actions of their employees, as long as the actions are within the scope of the employment. An employer can only act through its agents, after all. Following this idea, an employer should be, and usually is, held liable for employees' OSHA infractions. The exception to this rule is that employers are not held liable if they can prove the unpreventable employee misconduct defense. The principle of this defense is that employers should not be held responsible for the unforeseeable and unpreventable actions of employees. While this sounds reasonable, the unpreventable employee misconduct defense, unfortunately, is very difficult to successfully argue. The purpose of this article is to help employers prepare themselves in case they ever need to rely on this defense. This article will explain how the unpreventable employee misconduct defense works, show how courts have picked apart this defense, and explain what employers can do to increase their chances at successfully applying the unpreventable employee misconduct defense.

What is the "Unpreventable Employee Misconduct" Defense?

Most employers take precautions to ensure the health and safety of their employees. Regardless of motives, whether it be contractual obligations, compliance with OSHA, or a genuine interest in the safety of the employees, employers are concerned about job safety and act in accordance with their concerns. Employers take precautions – such as creating safety manuals, providing safety training, and enforcing safety policies – to both maximize employee health and minimize employer liability. But despite efforts taken by employers, accidents happen and individual employees sometimes violate the rules. And, of course, OSHA can (and does) cite an employer even if it is an accident or an unexpected employee violation.

To prove an OSHA violation, the Secretary of Labor ("Secretary") must show that:

  1. The cited standard applies;

  2. There was noncompliance with its terms;

  3. Employees had access to the violative conditions; and

  4. The cited employer had actual or constructive knowledge of those conditions.1

When an OSHA citation has been issued, the Secretary has the burden of proof for each element of its case before the Occupational Health and Safety Review Commission (OSHRC or "Commission"). If it does, the employer has the opportunity to defend itself. The OSHRC and Circuit Courts of Appeal have recognized that an employer should not be liable for OSHA violations that were caused by an employee's unforeseeable misconduct. The employer may use this defense, the unpreventable employee misconduct defense, to avoid liability from the OSHA violations.

In order to establish the defense of unpreventable employee misconduct, an employer has to prove that it:

  1. Established a work rule to prevent the reckless behavior or unsafe condition from occurring;

  2. Adequately communicated the rule to its employees;

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