Independent employee action defense:
Mercury Service, Inc., Cal/OSHA App. 77-1133, Decision After Reconsideration (October 16, 1980) defines the Independent employee action defense as follows:
"The Appeals Board has developed a test for this employer defense as it recognizes that
some employees may act against their employer's best safety efforts. In order to establish the
defense of independent employee action an employer must show all of the following elements:
- The employee was experienced in the job being performed,
- Employer has a well-devised safety program which includes training employees in matters of safety respective to their particular job assignments,
- Employer effectively enforces the safety program,
- Employer has a policy which it enforces of sanctions against employees who violate the safety program, and
- The employee caused a safety infraction which he or she knew was contra to the Employer's safety requirement."
The safety order did not apply to the work activity that is the subject of the citation:
Lusardi Construction Company, Cal/OSHA App. 86-1400, Denial of Petition for Reconsideration (May 31, 1989) discusses
the employer's affirmative defense, that the safety order did not apply to the work activity that was the subject of
the Division of Occupational Safety and Health's citation:
"Furthermore, in arguing that another safety order more closely addresses the facts,
an employer must demonstrate a defense to the cited safety order by complying with the
safety order the Employer claims is better suited to the actual circumstances. In other words,
the employer who asserts another safety order on the grounds that it more particularly addresses
the violation as alleged by the Division, must first establish that it has complied with the safety
protections required under that alternative safety order (California Erectors California Erectors, Bay Area, Inc.,
Cal/OSHA App. 84-1254, Decision After Reconsideration (Sep. 30, 1986).)"
A different safety order applied to the work activity that is the subject of the citation,
and appellant was in compliance with that other safety order.
Dade Behring, Inc., Cal/OSHA App. 05-2203 Decision After Reconsideration (Dec. 30, 2008) provides an example of this defense as follows:
"Stamatellos was asked about the exception to §3314(c) allowing for alternative methods for
performing minor adjustments and servicing of machines. He stated that the use of extension
tools would constitute an alternative means[.]" [...] "According to Employer, Employer complied
with §3314(c)(1) since the machine was required to be moving and Zakharnev established Employer's use of
other safety methods (only trained machine operators could operate the machine, extension tools were provided and used)."
The inspection that gave rise to the citation was invalid because the Division employee
who inspected the appellant's worksite failed to comply with laws governing administrative searches:
Bimbo Bakeries, Cal/OSHA App. 03-5215, Decision After Reconsideration (Jun. 8, 2010) defines this defense.
"This reasonable expectation of privacy in the area searched is not presumed under any rule.
It is a fact-specific expectation to be determined by a judge upon the presentation of evidence.
(Rudolph and Sletten, Cal/OSHA. App. 01-478, Decision After Reconsideration (March 30, 2004).)
Different buildings (homes, businesses, places open to the public, etc.) can carry different Fourth Amendment protections.
(People v. James (1977) 19 Cal.3d 99; People v. Doty (2nd Dist. 1985)165 Cal.App.3d 1060; Rudolph and Sletten, supra.;
People v. Channing (4th Dist. 2000) 81 Cal.App.4th 985, 990; and De La Cruz v. Quackenbush (2000) 80 Cal.App. 4th 775.)
Thus, evidence of the features of the place searched must be offered in order to establish a reasonable expectation
of privacy in the place searched. Without any evidence, no Fourth Amendment right can be established." [...]
"Therefore, the Division does not carry the burden to prove the lawfulness of a warrantless inspection
unless and until an employer establishes an expectation of privacy in an area searched.
Such interest will not be presumed. (Scribner, supra, citing Metro-Young Construction Co, Cal/OSHA App. 80-315,
Decision After Reconsideration (April 23, 1981).)"