What are the 5 elements of an idependent employee act for purposes of OSHA?

There are 5 elements which must be proven under the theory of Independent Employee Act, they are:

1. The employee is experienced in the job.
2. The employer has a well-developed safety program which includes safety training.  The training must focus on the employee-in-question’s job.
3. The employer must enforce its safety program.
4. The employer must enforce/discipline employees who violate the safety program.
5. The employee broke a safety rule which he or she knew was against the safety program rules.

This is a very difficult defense to prove, and if you are missing just one element your defense will sink quickly.  Unless you are absolutely sure that you have all 5 elements, you may want to consider appealing your Cal-OSHA citation on other grounds.