EMPLOYER DEFENSES

AFFIRMATIVE DEFENSES
• Defined by Review Commission as a defense
tending to avoid an alleged violation.
• Employer has the BURDEN of proving.
• Commissioner only has to address if employer
brings it up, and does so at the appropriate time.
• If employer does not bring it up at the
appropriate time, it WAIVES the right to do so
later on.
 EXAMPLES OF AFFIRMATIVE
DEFENSES
• Impossibility of Compliance- Employer
must show:
1. compliance not possible or would
prevent work from being able to be
performed; and
2. used another means of protection not
listed in the standard or there was no
alternative means.
• Isolated Employee Misconduct-
Employer must show:
1. Employees did something contrary to an effectively communicated work
rule;
2. Safety violation was the result of employee misconduct;
3. Employer took all feasible steps to prevent an accident from occurring;
4. Employer had no actual or constructive knowledge of the violation-
employer had NO way of knowing about the employee conduct that violated the
standard; and
5. Act in question was isolated- not so if several employees taking part, or
if has been going on for a while; must be something they had NO way of
anticipating employee would do the act in question.

Supervisory employee- If a supervisory employee

is alleged to have disobeyed rules, employer has a higher
burden and must show that the employee is acting OUTSIDE
the scope his supervisory authority. Otherwise, all acts of the
supervisor are IMPUTED to the employer, including his
disregard for the rules or law.
• Greater Hazard to Comply- Employer must:
1. Have applied for a variance from OSHA or show that
a variance would have been inapplicable; and
2. Prove that hazard is greater to comply than not to-
using info regarding frequency, severity and probability
factors

• Economic Infeasibility- must show unable to include the cost of abatement

in its expenses; for example, if abatement would bankrupt the company

• Specific Standard v. General Duty (will be covered in depth later in during

this training session)

• Exemption under G.S. 95-128- affirmative as per Review Commission-

example, federal government; maritime operations, etc. . .
• Failure to Issue Citation with Reasonable Promptness under
G.S. 95-137(a), affirmative as per Review Commission; must be in
writing and within “reasonable amount of time”

• Failure to Issue within Time Limitation, affirmative as per Review

Commission, 6 month deadline after occurrence of violation; also
relates to forwarding Notice of Contest to Review Commission within
10 days of receipt

• Standard not applicable- affirmative as per defined by Review

Commission, (will be covered at some other point in this training
session)

• Res Judicata- Latin for “the thing has been adjudged”; the matter
has already been decided and we are barred from relitigating it;
similar to double jeopardy in criminal court; example, if we didn’t win
or failed to cite someone for failing to use fall protection on a specific
day and time, we can’t come back later and try to cite them based
upon the exact same scenario.
 OTHER DEFENSES

• Can be brought up at any time, no waiver

issues

• Employer still has the BURDEN of proving

• Some may lead to dismissal of an item,

others may not and may merely mitigate
their case
 EXAMPLES OF OTHER
DEFENSES
• No violation- must show they in fact complied with all elements of the standard in
question, or that Commissioner has not met burden of proving each and every
element

• No exposure- must show that even if there was a violation, no one was exposed to it;
ex. no employees in trench without trench box; no employees within 6 feet of an
unprotected side or edge within fall protection; no employees using a backhoe without
an alarm

• Regarding seriousness- no possibility of accident- example, concrete already in

FACT cured by the time employees began steel erection without first receiving written
notification that the concrete was cured such that it was safe for them to work

• No knowledge of the hazard/violation- (will be covered later during this training

session

• Not the employer (multi-employer)- (will be covered later during this training
session)
• Abatement Unreasonable-
– Employer must show that the METHOD of
abatement is not reasonable or that no
abatement was suggested at all;
– this is similar but not same as economic
feasibility;
– also relates whether the abatement PERIOD
is reasonable;
– what is reasonable is dependent upon a
number of facts and circumstances relative to
each case.
• Example: size of the company, number of
exposed employees, level of danger to the
exposed employees, technical ease of abatement
• Repeat Violation-

not substantially similar, if different standards; must be

similar enough that the employer would know that the standard
was being violated again

PRESUMED to be substantially similar if SAME standard; but

Employer can rebut ; ex. Fall protection on an interior wall v. a
roof
or

more than requisite number of years has passed or

not the same employer- fixed employer with different sites,

but NOT the same as merely changing the name of the
company, or

no knowledge of the standard- if the employer can show

that they in fact did not know about the requirement of the
standard they can prevail
• Willful Violation-
• Good faith compliance
• No knowledge of standard
• Will be covered in depth later in this
training session