To establish that an OSHA regulation has been violated, the Secretary must prove that: (1) the regulation applied; (2) it was violated; (3) an employee was exposed to the hazard that was created; and (4) the employer knowingly disregarded the OSH Act’s requirements. The general rule has been that the knowledge of a supervisor is imputed to the employer – so if the supervisor knew or should have known of the violation, his knowledge is imputed to the employer and the Secretary can use this fact to show that the employer had knowledge of the violation.
The Court of Appeals for the Eleventh Circuit in Comtran Group, Inc. v. U.S. Dept. of Labor, 722 F.3d 1304 (11th Cir. 2013) held that there is an exception to the general rule: when a supervisor is acting independently and knows that he himself has violated an OSHA regulation, his knowledge of his own violation is not necessarily imputed to his employer. The Comtran court found that in such instances the Secretary must prove something more than the supervisor’s own knowledge of his own wrongful conduct to establish the employer knowledge element of a violation. Specifically, the Secretary must show that the employer had reason to foresee the unsafe conduct of the supervisor.