products would be unloaded at the loading dock with the use of the fork trucks. A PIV operator would then move food products into the blast freezer where they would be flash frozen. Once the food products were frozen, laborers would restack the products on pallets and PIV operators would then use the reach trucks to move them into freezers.

On July 7, 2022, an Americold employee who was driving a fork truck and making a turn, stuck out his foot and caught it between a bollard and the truck, injuring his ankle. OSHA was notified of the accident and an OSHA Compliance Safety and Health Officer (“CSHO”) appeared on-site and conducted an investigation. During her investigation, the CSHO noted that she even had to step-out of the way from a PIV during her walk of the premises with management. She appeared again in September 2022 and observed similar conditions as in her earlier visit. She also interviewed the injured employee. The CSHO subsequently issued safety citations including permitting an untrained person to operate a PIV. The applicable safety standard required an employer to “ensure that each operator has successfully completed the training required by this paragraph” prior to being allowed to operate the vehicle.

To prove a violation, the Secretary of Labor (Secretary) must show by a preponderance of the evidence (i.e., that it was more likely than not) that (1) the cited standard applies, (2) there was failure to comply with the cite standard, (3) employees had access to the violative condition, and (4) the cited employer either knew or should have known of the condition with the exercise of reasonable diligence.

Americold’s former floor supervisor Lamar Church testified as to Americold’s training procedures for PIV operators and explained that their training consisted of three parts. New operators would first be shown a 30-minute video created by the PIV manufacturer that addressed different operating and safety topics. The employees would then attend a class held by a supervisor who presented a 76-slide PowerPoint presentation on the vehicles’ operations and safety. The employees would then complete their training by receiving hands-on training and proficiency testing. Operators would also receive annual refresher training and recertifications, every three years.

However, if an operator was involved in an accident or was observed operating a PIV unsafely, they would be mandated to immediately take the refresher and recertification. Americold had procedures and rules in place for PIV use, which included instructing operators to slow down and sound their horn when approaching pedestrians (within the warehouse). An operator would also complete a vehicle inspection checklist before starting-up the vehicle, and if it failed the inspection, it would be taken out of service. The company also had installed software which required an employee to have an ID badge with the appropriate credentials, which they would have to swipe before starting the vehicle. The PIVs also had speed governors installed that limited the vehicle’s speed to five miles per hour.

Furthermore, floor supervisors were responsible for conducting three “behavior-based safety observations” per day, which included observing an employee conducting their work for 30 minutes, after which the floor supervisor would coach the employees on what was observed. Floor supervisors also had to conduct “coaching method observations” twice a day involving observing an employee conducting certain job skills. Americold’s disciplinary program included termination for serious safety rule violations. If a supervisor observed such behavior, they could request an employee’s immediate termination and the request would then be reviewed by a safety panel, which would determine the final outcome for the employee.

Here, Americold’s records indicated that the injured employee had not completed its training program and Americold conceded that the employee was not authorized to operate the PIV. The employee was exposed to the hazards associated with untrained use of a PIV and was in fact severely injured. The Administrative Law Judge (ALJ) found that Secretary had established the first three elements of the alleged violation. However, the record was unclear as to whether any supervisory employee had actual or constructive knowledge of the violation.

The injured employee did not testify at the hearing, and the Secretary only presented the CSHO’s account of her interview with the employee without documentation, in which she recalled that another PIV driver badged-through the PIV’s system permitting this employee to use it. She also was told that a supervisor overrode the system after this employee failed the safety questions. However, the record contained no evidence corroborating the injured employee’s statement as provided through the CSHO. Further, the ALJ found the CSHO’s account that unnamed employees informed her that supervisors had observed unauthorized employees using PIVs, as unpersuasive. Therefore, the Secretary failed to establish that Americold had actual knowledge of the violative condition.

The ALJ’s Decision then looked at whether Americold should have known or been aware of this violative condition. The evidence presented in fact showed that Americold had written rules prohibiting unauthorized use of PIVs, which included training provided to all employees. They also had controls in place requiring ID badges showing training and certification to operate the machine and employees had to perform a safety inspection prior to even starting the PIV. Although Americold conceded that an authorized employee’s card could be used by an unauthorized employee, Americold was unaware of any similar instances and Secretary had not shown any evidence of this practice. Americold also had two forms of routine, documented, monitoring of employee safety and performance as well as a disciplinary program for which it established it had terminated three of its employees, months prior to the accident for PIV violations. Under these circumstances the Secretary failed to meet its burden and the Citation was vacated.

About the author: Costas Cyprus is an associate attorney practicing construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 and at [email protected]. The articles in this series do not constitute legal advice and are intended for general guidance only.