OSHA Pumps the Brakes on New ‘Employer Knowledge’ Rule

By  J.L. Wilson
Associated Oregon Industries

Rulemaking Process Slows Down Due to Strong Concerns from Employers

As AOI alerted members late last month, Oregon OSHA held two meetings with Oregon employers – on November 7 and November 15 – concerning its intent to promulgate a brand new “employer knowledge” rule in Oregon. AOI and its members were represented at both meetings.

It was OSHA’s initial plan that these meetings would satisfy the requirement to have “stakeholder advisory group” meetings that are a necessary precursor to promulgating new rules.

However, due a to strong pushback from employers across the state, OSHA downgraded these meetings to “informal conversations.” OSHA, to its credit, was responsive to the pushback from businesses. OSHA has vacated plans for a formal rulemaking proposal at this time and intends to continue “informal conversations” with the business community for the next several months.

A new “employer knowledge” rule is no longer imminent. But based on feedback from the business community, a “stakeholder advisory group” could be assembled in February 2013.

Again, here is the issue in question:

OSHA notified businesses and business associations in October that it intended to adopt new “employer knowledge” rules due to an Oregon Court of Appeals ruling in OSHA v. CC&L Roofing Company. The court struck down OSHA’s position that evidence that a supervisor was involved in the commission of a violation conclusively satisfied its burden of proving “employer knowledge” for purposes of determining an employers’ liability.

In other words, OSHA’s position was that an employer was largely “strictly liable” for the bad acts of supervisors, including “rogue supervisors.” The Court of Appeals made it clear that OR-OSHA was wrong in this regard.

In OSHA’s October memo to AOI and other business associations, it appeared that promulgation of a new “employer knowledge” rule would be an attempt to undo the court’s ruling and existing case law that provides employers with reasonable protections against this “strict liability” approach.

There continues to be widespread concern among AOI members and employers across Oregon that the purpose of a new rule will be to re-instate OSHA’s position to make employers strictly liable for the bad acts of supervisors.

AOI is very concerned about the impact this may have long term for employers in Oregon.

In fact, at the AOI Board of Directors Meeting on November 16, the AOI Board adopted the following formal AOI position:

“AOI supports policies and legislation that are consistent with the Oregon Court of Appeals ruling in OSHA v. CC&L Roofing Company.”

At this time, AOI sees no compelling need for a rule to clarify existing case law pertaining to employer knowledge of supervisor misconduct. At a minimum, AOI would oppose new rulemakings that would diminish the reasonable protections established in current case law and as a result of the CC&L decision.

AOI will continue to update members on this important issue, including any new meetings that may be scheduled in the coming months.

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