Employee Misconduct and OSHA
By Frank L. Kollman

Like no other place on earth, this country treats employers in safety matters as criminals, even where the violation has been the result of employee misconduct. In fact, OSHA takes the position that when an employee violates an employer's safety rule that is designed to implement a government requirement, the employer is guilty of violating the law. If the employer can prove that he has taken steps to enforce the safety rule in the past, he might be able to raise an employee misconduct defense at a formal hearing.

In typical OSHA fashion, however, the government will argue that while the employer may have taken steps in the past to enforce the rule, this instance shows that enforcement efforts have been ineffective. Incredibly, the employee will suffer no fine or repercussion from the government, except perhaps a subpoena to testify against his company.

As any employer knows, there is no disciplinary program in the world that will prevent employees from violating rules. Otherwise, there would be no need for employment lawyers or personnel directors. No matter how much an employer tries, there will always be at least one employee who thinks he can skirt the rules.

There is, however, some hope for employers in Maryland, Virginia, West Virginia, North Carolina, and South Carolina as a result of a case handled by Kollman & Saucier. The federal appeals court for these states has rejected OSHA's position that an employer must prove employee misconduct as an affirmative defense to a safety violation. Rather, it is OSHA's burden to prove that the employee's misconduct was not unforeseeable or unpreventable. The Court, the United States Court of Appeals for the Fourth Circuit, stated:

Although some sister circuits have held that unpreventable employee misconduct "is an affirmative defense that an employer must plead and prove," this circuit and others clearly agree that such must be disproved by the Secretary in his case-in-chief. That the Secretary bears this burden is clearly the law of this circuit per Ocean Electric [Corp. v. Secretary of Labor, 594 F.2d 396 (4th Cir. 1979)], and we see no reason to change that here.

L.R. Willson and Sons, Inc. v. Occupational Safety and Health Review Commission, slip. op. No. 97-1492 (January 28, 1998).

Therefore, if an employee's misconduct has resulted in an OSHA citation, it may now be less difficult to defeat a citation. Because most citations are the result of employee misconduct, including misconduct by supervisory employees, this case should present an opportunity to employers to stop OSHA in its crusade to absolve employees of all responsibility under the Occupational Safety and Health Act.

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