Mike, a safety manager for a Southern California company, e-mailed us recently asking how you prove the Independent Employee Act defense to the Cal/OSHA Appeals Board. That is a good question, because the changes made by the passage of AB 1127 makes this defense extremely important to California employers.

The Appeals Board established this defense in a 1980 case called Mercury Services, Inc. Here are the five elements of the defense:

1. The employee is experienced in the job being performed.
   The amount of experience and time needed to become experienced varies with the job. Generally speaking, it is harder to prove this element if the employee is a new hire.

2. The employer has a well-devised safety program which includes training employees in matters of safety respective to their particular job assignments.
   This element looks to the employer's safety program overall. If it is weak, and especially if DOSH has concluded that the program is ineffective, the employer loses.

3. The employer effectively enforces its safety program.
   Very similar to #2. Where #2 is focused on your written program, however, this element looks at your actual records of training, inspections and attention to fixing identified hazards.

4. The employer has a policy which it enforces of sanctions against employees who violate the safety program.
   This element is a little counter-intuitive since the Board will be looking to see if you have used a stick to discipline your employees, not just a carrot to encourage them. Most employers lose on this point because they cannot document disciplinary actions before the incident leading to the citation in issue.

5. The employee caused a safety infraction which he or she knew was contra to the employer's safety requirement.
   This element requires proof of two things: The safety rule that the employee broke (which led to the violation), and that the employee knew that what he or she was doing violated your rule. The first is easy... if you have written or documented proof that the rule existed before the incident. You can prove employee knowledge in two ways. First, the employee can break down and confess that he or she knew that what they were doing was wrong (a “Perry Mason moment” -- dramatic, but very rare in the real world). Second, you can prove this element by inference from the evidence proving first two elements; that is, IF the employee was trained in the job and was experienced in the job, and IF you can show that you have administered and enforced your safety program seriously, the Board can infer that the employee knew that what he or she was doing was against your wishes.

As you can see, the Board only allows this defense if you can prove that you have been pro-active. There is another twist: The employee in question cannot be a supervisor(foreman or above), because they are deemed to be acting for you.

Finally, you must hit the bulls-eye on each of the elements; 4 out of 5 will not do!

Contact us if you need help on a specific case.