New River Electrical Corporation is an electrical construction contractor operating in Virginia and Ohio. On November 6, 2017, the company was completing an underground cable replacement project in Madison Mills, Ohio. The work required deenergizing electrical lines, and three crews were assigned to the site. Standard procedures mandated testing, tagging, and grounding transformers before any replacement work.
Eric Marsh, a groundman on the overhead riser crew, picked up a cable that remained energized with 7,650 volts. He sustained severe burns. Subsequent investigation revealed that no one had tested, tagged, or grounded the transformer linked to the cable. Two foremen, Zack Howard and Mark Bail, attempted to conceal the oversight by grounding and tagging equipment after the accident and falsely reporting that the safety measures had been followed. Both were terminated days later.
On November 14, 2017, the Occupational Safety and Health Administration (OSHA) initiated an investigation. It determined New River violated three separate OSHA standards regarding deenergizing and grounding electrical equipment. OSHA cited the company for three serious violations and proposed a $38,802 penalty. An Administrative Law Judge (ALJ) later affirmed the violations but consolidated them into a single citation with a penalty of $12,934. The Occupational Safety and Health Review Commission declined further review, making the ALJ’s decision final in October 2020.
New River sought review in the United States Court of Appeals for the Fourth Circuit. The company argued that the ALJ improperly shifted the burden of proof regarding constructive knowledge of the violations. The Fourth Circuit examined the framework requiring the Secretary of Labor to prove four elements to establish a violation: (1) applicability of the standard, (2) noncompliance, (3) employee access to the hazard, and (4) employer’s actual or constructive knowledge.
The court emphasized that when supervisory employees commit violations, employers can only be held responsible if the misconduct was reasonably foreseeable. The Secretary carries the burden to prove foreseeability, which can be shown by inadequate training, supervision, or enforcement of safety rules. The Fourth Circuit found that the ALJ relied heavily on the inadequacy of New River’s safety program—an issue not raised by the Secretary—to conclude that the violations were foreseeable. By doing so, the ALJ effectively relieved the Secretary of his burden to establish constructive knowledge.
The Fourth Circuit held this was an error that was not harmless, as it was unclear whether the Secretary’s actual arguments, standing alone, would have been sufficient to prove constructive knowledge.
On February 1, 2022, the Fourth Circuit reversed the Commission’s order and remanded the case for further proceedings, requiring a proper allocation of the burden of proof between the parties.
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