OR-OSHA v. CC & L ROOFING CO., INC.

Under ORS 654.086, OR-OSHA has the burden of persuasion to show constructive knowledge. Employer evidence to show “reasonable diligence” in compliance is not an affirmative defense “because it negates the knowledge element of a serious violation.”

The Oregon Occupational Safety and Health Division (OR-OSHA) sought judicial review of an order of an administrative law judge (ALJ) that set aside a citation charging CC & L Roofing (CC) with a violation that proposed a $25,000 penalty. The ALJ reasoned that if the evidence shows that an employer acted reasonably to ensure workers’ compliance, “willful misconduct by a supervisory employee should not be imputed to the employer” without actual knowledge. In this case, there was no contention that CC had actual knowledge of the violation. Rather, OR-OSHA argues that a violation by an adequately trained CC supervisor could be imputed to CC. Furthermore, any evidence provided by CC to show that it had exercised reasonable diligence in compliance with safety standards may be offered as an “affirmative defense”, thereby shifting the burden of persuasion to CC. The Court of Appeals held that evidence by CC to show that the supervisor acted in an unauthorized manner was not an affirmative defense, and therefore the burden of persuasion stayed with OR-OSHA. Affirmed.