22 F.4th 1284
11th Cir.2022Background
- Employee Johnnie Norton drowned after falling from an unguarded concrete dock while pressure washing; he was not wearing a personal flotation device (PFD).
- Dock: ~290 ft by 10 ft, unguarded on three sides, about 19 ft deep at the work area; no ladders extending off the dock.
- OSHA investigation found no prior falls but identified two employees who had voluntarily worn PFDs while pressure washing the same dock; supervisor asked Norton if he could swim before assigning the work.
- OSHA issued a "serious" citation to C&W under 29 C.F.R. § 1910.132(a) (failure to provide/require PFDs); ALJ affirmed the citation and penalty; Commission declined review, making the ALJ decision final.
- The Eleventh Circuit reviewed whether the Commission applied the correct legal standard for liability under the performance-based §1910.132(a) and whether the record contains substantial evidence of the employer's "actual knowledge" that PFDs were required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What must Secretary prove to enforce a performance standard (§1910.132(a)) absent an industry custom? | Must show employer had actual knowledge that PPE was necessary or show an industry custom. | Same: employer lacked such actual knowledge and no industry custom was shown. | Court: Precedent requires either industry custom or actual knowledge that PPE is necessary; heightened due-process knowledge requirement applies. |
| Did the Commission/ALJ apply the correct standard for "actual knowledge"? | Secretary relied on ALJ finding employer was aware of hazardous conditions, sufficient under Jake’s Fireworks. | C&W argued that awareness of conditions alone is insufficient; actual knowledge that PPE was necessary is required. | Court: ALJ/Commission misapplied precedent by treating awareness of conditions as proof of actual knowledge that PPE was required. |
| Does the record contain substantial evidence that C&W had actual knowledge PFDs were required? | Secretary pointed to dock conditions, supervisor asking about swimming, and two voluntary PFD uses. | C&W argued those facts show at most awareness of conditions or individual preferences, not specific, confirmed knowledge that PFDs were required. | Court: No—record lacks substantial evidence of actual knowledge; voluntary use and obviousness do not establish mandatory-PFD knowledge. |
| Remedy: vacate, remand, or other? | Secretary implicitly sought enforcement/remand. | C&W sought vacatur of the citation. | Court: Vacated the citation and set aside the Commission order; remand unnecessary because no substantial evidence could support actual-knowledge finding. |
Key Cases Cited
- Fla. Mach. & Foundry, Inc. v. Occupational Safety & Health Rev. Comm'n, 693 F.2d 119 (11th Cir. 1982) (performance-standard liability requires industry custom or employer actual knowledge that PPE is necessary)
- Cotter & Co. v. Occupational Safety & Health Review Comm'n, 598 F.2d 911 (5th Cir. 1979) (employer awareness of conditions and voluntary PPE programs did not prove specific, confirmed knowledge requiring mandatory PPE)
- Owens-Corning Fiberglass Corp. v. Donovan, 659 F.2d 1285 (5th Cir. 1981) (employer's long-standing awareness and employee demands can support actual-knowledge finding)
- S&H Riggers & Erectors, Inc. v. Occupational Safety & Health Review Comm'n, 659 F.2d 1273 (5th Cir. 1981) (obviousness of a hazard alone does not establish employer knowledge that mandatory PPE is required)
- Jake's Fireworks, Inc. v. Acosta, 893 F.3d 1248 (10th Cir. 2018) (ALJ relied on this decision to treat awareness of hazardous conditions as sufficient; Eleventh Circuit rejected that approach)