October 31, 2012
by Stephen Verotsky


Stephen VerotskyOregon OSHA is developing an administrative rule which has the potential to significantly change what it must prove to establish a violation of a safety rule.  Currently, to establish a valid citation, OR-OSHA must prove the employer knew (actual knowledge) or could have known (constructive knowledge) of the condition giving rise to the violation.  Since 1999, the Oregon appellate courts have found constructive knowledge does not exist where the alleged violation resulted from the “bad acts” of a “rogue supervisor.”  A rogue supervisor is a supervisor who acts contrary to an established safety program and such actions were not foreseeable. 

Notwithstanding the decisions from the Oregon appellate courts, OR-OSHA has continued to argue an employer is strictly liable for the acts of all supervisors.  In February 2012, the Oregon Court of Appeals issued a decision in Oregon OSHA v. CC & L Roofing Co. which again rejected OSHA’s position concerning “rogue supervisors” and strict liability.  In response to this latest decision OR-OSHA has announced it is developing a rule “to ensure that employers are held accountable for their supervisors’ actions when such accountability is appropriate, but only when it is appropriate.”  However, many employers and professional organizations are questioning whether OSHA’s goal is to develop a balanced rule or if it is only intending to achieve, through an administrative rule, what it failed to achieve in the courts.

If OR-OSHA achieves strict liability for “rogue supervisors,” this will not only have adverse consequences for employers in the OSHA enforcement proceedings but also in potential third party lawsuits.  For example, consider a multi-employer worksite where an employee of company A is injured and not only files a workers’ compensation claim against his employer but also company B.  If company B has been cited by OR-OSHA for a safety violation tied to the cause of the accident, liability can be assumed as a matter of law and the only issue would be the amount of damages.  It is critical employers not be held liable for safety violations that it did not or could not know about. 

On November 7, 2012 @ 9:00 a.m. OSHA will convene a stakeholder meeting in its Portland Field Office.  During this meeting OSHA will likely provide more details about its proposed rule.  I will attend this meeting on behalf of my clients who will be affected by this rule and object to any proposed rule which seeks to implement strict liability for the actions of supervisors.  I will also request OR-OSHA convene more than just one meeting to allow for a full and fair input from employers throughout Oregon who will be affected by the rule. 

If you have concerns or questions about this proposed rule or other OSHA matter, please feel free to contact me at 503-595-2136