Numerous procedural and substantive legal defenses exist to limit liability in the unfortunate circumstance that an employer receives an OSHA citation. Of the substantive defenses, one of the most effective is known as the “unpreventable employee misconduct” defense. If successful, it can lead to the outright dismissal of the OSHA citation.
While this defense can obviously relieve the immediate headache of the citation, it cannot and should not replace the practice of making worker safety the No. 1 priority. Indeed, this defense will only be successful if adequate safety practices already existed at the workplace at the time the citation was issued.
In this sense, the unpreventable employee misconduct defense also acts as a template for preemptively establishing a safer workplace. By taking action before a citation is ever issued to satisfy all elements of the unpreventable employee misconduct defense -- the four things an employer must demonstrate if a contested citation were to go before an OSHA administrative law judge or, later, the Occupational Safety and Health Review Commission -- an employer can significantly minimize the risk of ever receiving a citation in the first place.
Unpreventable Employee Misconduct
The unpreventable employee misconduct defense has also been known as the “isolated occurrence” or “isolated incident” defense. The idea is that an employer, who otherwise maintains adequate safety procedures at the workplace, should not be punished for a violation due to an isolated incident of employee misconduct that was unpreventable and not likely to happen again.
The Commission uses a four-part test to evaluate the strength of this defense. In order to invoke it, an employer must show it has:
1) established work rules designed to prevent the violation;
2) adequately communicated these rules to its employees;
3) taken steps to discover violations; and
4) effectively enforced the rules when violations have been discovered.
Although the name of the defense implies that the employee’s conduct (or misconduct) is the focus of the inquiry, the test makes it clear that the Commission instead mainly scrutinizes the employer’s safety practices. By their nature, the elements of this defense act as a convenient roadmap an employer can use when designing a comprehensive workplace safety program.
Tip 1: Establish Work Rules
The first element of the unpreventable employee misconduct defense is perhaps the most obvious and is usually considered the easiest to satisfy. An employer’s first step should be to establish a system of rules that adequately addresses the typical hazards that would be present on a daily basis.
In terms of how the rules are worded, an employer is afforded a degree of flexibility. The Review Commission generally wants to see an employer rule that provides the same level of protection as the relevant OSHA section. This does not mean, however, that anything less than the actual wording of the OSHA standard is insufficient.
It would clearly be impractical to just drop a copy of the Occupational Safety and Health Act on a table and expect employees to follow it. At the same time, an effective rule cannot be so general or broad that it is too vague to follow. An effective workplace rule is simple enough to be easily understood, but detailed enough so that if it is followed, the specific hazard (or OSHA violation) it is designed to prevent will not occur.
The rules must be in writing. This, of course, is the best evidence of the existence of the rules themselves. In the event you seek to contest an OSHA citation, you will want to point to your previously implemented rules (relating to the hazard of interest) that were in place at the time of the alleged violative conduct. It would usually make sense to include your written work rules in a formal comprehensive health and safety plan.
Notably, if you do not currently have a health and safety plan, OSHA provides a wealth of information and suggestions for drafting one, including for different specific workplace hazards.
Tip 2: Adequately Communicate the Rules
No matter how comprehensive and clear an employer’s rules may be, they are of no value unless they are adequately communicated to employees. The key word here is adequate. This means that not only must the rules be made available to employees, but steps must be taken to ensure that they are understood and able to be followed.
It will likely not be enough to simply distribute a few handouts or post some warnings around the workplace. Rather, the truly safety-minded employer will ensure that employees are clearly informed of the rules they are expected to follow both before work starts and during the work itself.
The first step is to distribute a written copy of the workplace rules to each employee. When doing this, it is extremely important to be mindful of any non-English speaking workers and to arrange for translated copies accordingly.
An acknowledgment form should be included with each rulebook to indicate the employee has read the rules, understands them, agrees to abide by them, and will speak with a supervisor if there are any questions about them. The employee should sign the acknowledgment, and it should be kept on file with management.
It is critical that employee rule violations are documented and tracked.
Employers should take additional steps to reinforce safe practices while work is ongoing. Periodic training is one. Weekly toolbox talks or similar meetings conducted by management can and should be used to address the more frequent or dangerous hazards employees will encounter at the workplace.
These meetings are a great opportunity to keep rules fresh in employees’ minds and address any questions or uncertainties about existing safety practices. They are especially important for more inexperienced employees who may require additional mentoring. A detailed record should be kept of these meetings, including their date, location, who attended them, and what topics were covered.
Warning signs in areas where specific hazards are present serve as the “icing on the cake” with respect to rule communication. The employee is first informed about the rule though a written instruction. This instruction is then reinforced through periodic training. Finally, when the employee is about to encounter the hazard, the rule is again clearly indicated in a sign.
Again, an employer must be mindful of non-English speaking employees, and ensure that the warnings are printed in more than one language if necessary.
Tip 3: Take Steps to Discover Violations
Of the four elements, taking steps to discover employee violations is perhaps the least complicated in terms of execution, but most complicated in terms of how the Commission would scrutinize an employer’s conduct.
Practically speaking, the easiest way to promote the discovery of violations is simply to be vigilant over employees at the workplace. This means ensuring adequate supervision over employees and detection of existing violations before they can exist for an extended period of time.
Practically speaking, the easiest way to promote the discovery of violations is simply to be vigilant over employees at the workplace.
At a minimum, supervisors who are on-site at the workplace should conduct daily walkthroughs to maximize the likelihood of discovering potential hazards or rule violations. Like everything else, these walkthroughs should be documented in writing.
In the event of a citation, the Commission will first look to see whether the employer was actually aware of the violation. If so, and the employer did not take steps to correct it within a reasonable time, the unpreventable employee misconduct defense will almost surely fail.
In the event that the employer was not actually aware of the violation, however, the Commission will look to see whether the employer should have known of its existence. In doing so, the Commission will look to see how long the violation was allowed to exist, how many employees were in violation of the rule, and the adequacy of supervision at the workplace.
Additionally, evidence of prior violations can be used to indicate that an employer should have been aware of or taken increase steps to discover subsequent violation.
Tip 4: Effectively Enforce Violations
The final element of this defense focuses on an employer’s reaction to an employee who has been discovered to be violating a workplace rule. This element relates to the “unpreventable” aspect of the overall defense in that by enforcing a rule violation through employee discipline, the violation is less likely to occur again in the future. Likewise, the failure to enforce a discovered rule violation does nothing to prevent it from occurring again at the workplace.
In order to be effective, the procedures for enforcing rule violations must be communicated as clearly and effectively as the rules themselves. Therefore, it is best that discipline rules be put in writing and be included in the instructions distributed to employees. The employee rule acknowledgment form should also include a section indicating that the employee understands that they can and will be disciplined for rule violations.
It is critical that employee rule violations are documented and tracked. This allows for a progressive program where repeated violations are met with increased discipline. When properly documented, prior violations can used as justification for more severe penalties on subsequent violations. For example, if it ultimately becomes necessary to suspend an employee for the repeated failure to wear a hard hat in a designated hard hat zone, the employee can be shown documentation about the previous instances when he or she was first given a verbal warning about hard hats, and then a written warning on the subsequent violation.
The most important aspect of an employee discipline program is that it must have “teeth” -- and this is what the Commission will look for when considering the unpreventable employee misconduct defense. This means that upon discovery, a rule violation must be actually enforced in a clear and consistent manner.
No discipline program will ever prompt a change in behavior unless employees know that it will be enforced.
No employer wants to face an OSHA citation. While it may be comforting to know that there are defenses that may save the day, remember that the best defense is often a good offense. Don’t wait until a citation is issued. Establish safety practices and procedures that comply with the elements of the unpreventable employee misconduct defense, and remember that documenting everything is invaluable.
All this not only minimizes the risk of citations in the first place, but also allows for the successful use of this powerful defense in the rare instance a citation is given.
Stefan A. Borovina is an attorney in the OSHA and Worksite Safety Practice Group at the law firm Goldberg Segalla. He defends clients in a wide variety of liability claims and counsels on minimizing OSHA liability and responding to citations. His credentials include the Department of Labor OSHA-10 Construction Training, and he is a frequent contributor to Goldberg Segalla’s OSHA: Legal Developments and Defense Strategies blog. He may be reached at [email protected].