Employment: Tenth Circuit Endorses Use of Training-Specific Analysis to Determine OSHA Violations

01.01.12

Compass Environmental, Inc. was cited by OSHA for failing to adequately train an employee and failing to maintain a worksite that is a safe distance away from a power line.

Compass was using a mobile excavator with a 75 foot boom to dig a trench at a surface mine worksite. During the first week on the job, Compass trained all excavator operators and trench hands on identifying hazards at the worksite, including an energized high-voltage power line crossing over a portion of the worksite. However, a trench hand who did not arrive at the worksite until after the project had begun did not receive any instruction regarding avoidance of the power line. Unfortunately, the trench hand was electrocuted and died when the excavator and boom he was walking beside came into contact with the power line.

Compass was issued two citations by OSHA, but an administrative law judge vacated the citations. However, the Review Commission reinstated the citations and assessed a $5,500 penalty on the grounds that a reasonably prudent employer would have anticipated the trench hand's exposure to the power line and provided training addressing the hazard. Compass appealed the Commission's decision to the Tenth Circuit Court of Appeals.

The Tenth Circuit agreed with the Commission. Under a training-specific analysis, it must be proven that the employer failed to provide instructions that a reasonably prudent employer would have given in the same circumstances. The Tenth Circuit found that, because Compass recognized the danger of working in proximity of high-voltage transmission lines, a reasonably prudent employer would have trained the trench hand on the hazard. The Tenth Circuit further noted that it is not unduly burdensome to require an employer to train an employee on a known severe hazard at a worksite where contingencies may arise.

Bottom line: OSHA will be stepping up enforcement in many different industries and worksites in 2012. It is important to properly train your employees, and ensure that they follow required training and guidelines, particularly in high-hazard industries and at high-hazard jobsites.

If you have any questions regarding OSHA compliance, our employment group is always available to answer any questions or concerns.

By Kenneth T. Short, kshort@dsda.com

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Rebecca D. Bullard

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Rebecca represents clients primarily in labor and employment
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