## Facts

- NYSEG sent a two-person gas-operations crew to a Binghamton, New York intersection to connect newly laid natural gas pipe.
- Crew leader Jim Webb set traffic cones and signs; equipment operator Raymond Price used a jackhammer to widen pavement.
- An OSHA compliance officer observed Price operating the jackhammer without protective eyewear; Webb agreed goggles should have been used.
- Price also admitted he was not wearing safety-toe footwear; at Webb’s direction, Price retrieved safety glasses and steel-toe boots from the truck and resumed work.
- The Secretary cited NYSEG for failing to require protective eyewear and safety-toe footwear during jackhammer operations, including under 29 C.F.R. § 1926.28.
- NYSEG presented evidence of written PPE rules, training, inspections, and discipline, and argued the lapse was unpreventable employee misconduct.
- An ALJ upheld the citations and assessed a $1,500 penalty; the Commission affirmed, finding NYSEG’s gas-operations safety efforts inadequate and imputing constructive knowledge.

## Issues

1. Whether the Secretary must prove the employer’s actual or constructive knowledge of the violative condition as part of the prima facie OSHA case.
2. Whether the Commission improperly shifted the burden to the employer by treating unpreventable employee misconduct (and safety-program adequacy) as an affirmative defense that negates knowledge.
3. Whether substantial evidence supported a finding that NYSEG, exercising reasonable diligence, should have known of the PPE violations.

## Decision

- The Second Circuit set aside the Commission’s order and remanded.
- The court held the Secretary bears the burden to prove employer knowledge (actual or constructive) as an element of an OSHA violation.
- The court concluded the Commission erred by effectively requiring NYSEG to disprove knowledge by proving its safety program was adequate.
- On the record, the Secretary failed to establish that NYSEG had constructive knowledge of the employee’s PPE noncompliance, so the citations could not stand.

## Legal Principles

- To prove an OSHA violation, the Secretary must establish: (1) the standard applies, (2) noncompliance, (3) employee exposure, and (4) employer knowledge or constructive knowledge through reasonable diligence.
- Constructive knowledge may be shown through evidence bearing on reasonable diligence, including safety rules, training, supervision/monitoring, and enforcement.
- Evidence that an employer had safety measures does not shift the ultimate burden of persuasion on knowledge; the Secretary must show the program was sufficiently deficient to impute constructive knowledge.
- OSHA liability is not strict or per se based solely on an isolated instance of employee noncompliance absent proof that the employer knew or should have known of the violative condition.

## Conclusion

The court held that employer knowledge is part of the Secretary’s prima facie burden in OSHA cases and that the Commission may not treat a single employee lapse as effectively dispositive by shifting the knowledge inquiry onto the employer through an employee-misconduct framework.


N.Y. State Elec. & Gas Corp. v. Sec’y of Labor, 88 F.3d 98 (2d Cir. 1996)