Unforeseeable Employee Misconduct Defense to an OSHA Citation

by Philip Siegel, Hendrick, Phillips, Salzman & Siegel

A contractor who has established, implemented and enforced a safety program may be able to successfully defend an OSHA citation based on the defense of unforeseeable employee misconduct. The Occupational Safety and Health Review Commission and the U.S. Circuit Courts of Appeal recognize that employee misconduct may be a valid defense to an OSHA violation.

Contractors have successfully been able to defend themselves against OSHA liability in many cases based on showing “unforeseeable,” “unpreventable” or “isolated” employee misconduct. The unforeseeable employee misconduct defense is primarily geared toward violations over which employees have individual control. The rationale in support of the employee misconduct defense is that the employee’s misconduct was unpreventable or unforeseeable or was an isolated incident, atypical of the contractor’s normal operations. Even though there has been a violation of an OSHA regulation, the contractor will be able to avoid liability if he can show that the contractor’s conduct is such that he is entitled to rely upon the employee misconduct defense.

In order to be able to rely on the employee misconduct defense to vacate an OSHA citation, an employer must satisfy four requirements that have been enunciated in decisions rendered by the Review Commission to show that the employee misconduct occurred despite the employer’s efforts to require safe work practices. If any one of the four requirements is lacking, the defense fails and the contractor will be liable. If a contractor is committed to safety and avoiding OSHA liability, the contractor can reduce the likelihood of accidents and potential OSHA liability by actively managing his or her company in such a way that each of the four requirements is satisfied.

The four requirements that a contractor must show in order to vacate an OSHA citation based on employee misconduct are:

  1. The contractor established work rules to prevent the violation from occurring.
  2. The contractor adequately communicated the work rules to employees.
  3. The contractor took steps to discover violations of its work rules.
  4. The contractor effectively enforced its rules and took action when there were employee violations.

Contractor-Established Work Rules to Prevent the Violation

The first requirement to invoke the employee misconduct defense is for the contractor to show that it adopted work rules, consistent with OSHA requirements, that were intended to prevent the violation for which the contractor has been cited. The Review Commission has defined a work rule as “an employer directive that requires or proscribes certain conduct and that is communicated to employees in such a manner that its mandatory nature is made explicit and its scope clearly understood.” There is no requirement that the work rule be written, but the rule must be clear and protect against the specific hazard addressed by the standard. The work rule must be designed to foster compliance with the cited standard and should not be general and open to interpretation.

The best practice is for a contractor to develop specific written work rules that are distributed to each employee in a safety manual and orally reviewed from time-to-time at job site meetings or tool-box talks. A contractor is likely to meet this requirement by adopting a safety program in accordance with OSHA regulations applicable to the contractor’s operations.

Contractor Adequately Communicated the Rules to Employees

The second requirement is to communicate the work rules to employees. The contractor must be able to show that the employee, whose conduct was in violation of the contractor’s work rules, had previously been told of the work rule. This requirement can be satisfied by conducting for all employees regular safety training programs that cover the OSHA regulations most applicable to the work being performed. Every employee must be provided safety training prior to being allowed to work. Periodic training should be conducted to make sure that employees are reminded of the contractor’s safety program and work rules. Safety videos are an excellent means to communicate work rules. Contractors must emphasize to all employees, and especially foremen and superintendents, that compliance with fall protection rules is required at all times and that safety should not be compromised to increase productivity.

Contractor Took Steps to Discover Violations

The third requirement—that the employer take steps to discover violations—can be satisfied by the contractor’s conducting regular job-site monitoring to check that the safety rules are being followed. There is no rule that job-site monitoring be conducted with any particular frequency. The employer must establish that it exercised reasonable diligence in detecting workplace hazards. The criteria will be satisfied if the contractor can show that it took reasonable steps to determine whether its jobs were being run in compliance with safety rules. If there is little correlation between the work rules and what takes place regularly in the field, the employee misconduct defense will fail. An effective safety program requires “a diligent effort to discover and discourage violations of safety rules by employees.” A failure to discover a safety violation that occurs in a short period of time is not evidence that the employer was not diligent in its effort to discover violations.

Contractor Effectively Enforced the Safety Rules and Took Disciplinary Action When Violations Were Discovered

A contractor can meet the fourth criteria by establishing and enforcing a disciplinary program directed at employees who do not follow the safety rules. First, a disciplinary program should be established and communicated to all employees. When an employee is seen violating the work rules, the employee must be disciplined. Often, the key to establishing the employee misconduct defense is proving that the employer has a regularly enforced disciplinary program for safety violations. If employees feel free to violate work rules, there is not unforeseeable or isolated employee misconduct.

Disciplinary action could include verbal and written reprimands, suspension, demotion, removal from a safety incentive or bonus program, and termination. Written evidence of disciplinary actions taken should be maintained by the contractor to show that the contractor enforced its safety rules and took disciplinary action against employees who did not follow the rules. Formal records of the disciplinary action should be maintained indefinitely. The disciplinary program should be structured as a progressive program, so that an employee who continues not to abide by company safety rules receives a harsher penalty, culminating in termination of employment. If the contractor has not disciplined the employee whose misconduct led to the citation and there is little evidence of prior disciplinary action within the company, the employee misconduct defense will not be accepted.

Several factors can negate the employee misconduct defense, such as placing an untrained employee on the job or failing to provide the needed safety equipment.

Supervisor Misconduct

When the employee who is involved in the violation of a safety rule is a supervisor, the proof of unpreventable employee misconduct is more rigorous and the employee misconduct defense is more difficult to establish. A supervisor’s conduct is imputed to the employer and the supervisor has the duty to protect the safety of employees under his supervision. In addition, the “fact that a supervisor would feel free to breach a company safety policy is strong evidence that the implementation of the policy is lax.”

“When the alleged misconduct is that of a supervisory employee, the employer must also establish that it took all feasible steps to prevent the accident, including adequate instruction and supervision of its supervisory employee.” The Review Commission has held that the failure to give specific instructions on how to accomplish a job can amount to a lack of reasonable diligence.

Nevertheless, there have been cases where contractors have been able to rely on the employee misconduct defense, even though the employee who engaged in the misconduct was a supervisor, by showing compliance with the four criteria.

In L.R. Willson and Sons, Inc. v. OSHA, 18 BNA OSHC 1129, 134 F.3d 1235 (4th Cir. 1998), the Review Commission concluded that because a supervisory employee committed the violation, knowledge of the violation should be imputed to the employer and the employer bore the burden of establishing that it had made a good faith effort to comply with the fall protection standards. The Fourth Circuit Court of Appeals reversed this decision and held that OSHA bore the burden of proving that the supervisory employee’s actions were neither unforeseeable nor unpreventable.

Philip Siegel is a partner and shareholder with the firm Hendrick, Phillips, Salzman & Siegel, P.C., whose practice focuses on labor and employment matters within the construction industry. Siegel has an undergraduate B.B.A. from the University of Michigan, and he earned his law degree from Emory University School of Law. Siegel can be reached at (404) 469-9197 or pjs@hpsslaw.com.

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