Legal and Regulatory

The Defense of Unpreventable Employee Misconduct

Employers faced with OSHA violations may rely on the defense of “unpreventable employee misconduct” but they are not relieved of responsibility simply because an employee did not follow the rules.
By Courtney Moates Paulk
March 19, 2019
Legal and Regulatory

Employers faced with possible Occupational Safety and Health Administration violations often try to shift blame to an unruly employee and rely on the defense of “unpreventable employee misconduct.” Many employers mistakenly assume that because an employee “broke a rule,” an inspector should let the employer off the hook for violations.

An employer is not relieved of responsibility simply because an employee did not follow the rules. To assert and prevail on the defense of unpreventable employee misconduct, an employer must prove that it did the following:

  • established a work rule adequate to prevent the violation;
  • effectively communicated the rule to employees;
  • established methods for discovering violations of work rules and did not know about this particular, isolated violation of that rule; and
  • effectively enforced its rule.

Here are six helpful tips for establishing the unpreventable employee misconduct defense.

1. Create an effective, written safety policy

An employer should create an effective, written safety policy. Too often employers rely upon verbal communication of safety rules or policies. Most OSHA inspectors require and request written documentation of such policies.

Maintaining a written policy serves as the safest, best practice to communicate rules effectively, and it provides the best defense in the event of a citation.

Safety policies and work rules should contain clear and specific requirements and prohibitions designed to prevent unsafe conditions and violations of applicable OSHA standards. The language used should clearly convey that compliance is mandatory. In order to ensure that safety policies and rules are current, employers should have a qualified safety director or other professional review safety policies on an annual basis or whenever there are important safety-related developments in the industry. If employees believe there are exceptions to certain rules, or if multiple employees or a supervising employee violate a particular rule, this may indicate insufficient or unclear work rules.

2.Communicate work rules effectively

Employers must effectively communicate safety policies and work rules to employees. Simply referring employees to OSHA standards—or having them sign forms acknowledging a responsibility to read safety manuals—does not constitute adequate communication. Similarly, communicating rules in English to non-English speaking employees does not suffice. To establish adequate communication, make safety manuals required reading, conduct regular training for employees and periodically review work rules—documenting all of these actions to establish a formal record. Repeated noncompliance by employees or noncompliance by several employees or a supervising employee may demonstrate ineffective communication.

3.Create an effective, progressive disciplinary policy

Employers must develop and maintain a disciplinary policy with progressive levels of disciplinary action—for example, written reprimand, suspension or termination—designed to deter future violations. These levels can be established based on the severity of the violation and/or the employee’s disciplinary record. While many employers can sufficiently establish the existence and communication of work rules, many employers fail to have an adequately documented disciplinary policy. From the OSHA inspector’s perspective, work rules are only as good as their enforcement. If an employer lacks a disciplinary policy, OSHA may view the lack of enforcement as evidence of an inadequate, lax or non-existent safety program.

4. Sufficiently monitor employees to identify and prevent safety violations

Employers must take reasonable steps to monitor the workplace. An employer should ensure there are supervisors on site to monitor the work and that other employees monitor supervisors. Employers do not have an obligation to monitor and supervise the workplace 100 percent of the time, but an employer must take reasonable steps to detect, prevent and deter hazards.

5. Enforce the disciplinary policy consistently

Upon discovering a violation, an employer must enforce disciplinary policies and discipline violating employees consistently and promptly. Postponing disciplinary action may indicate ineffective enforcement. Employers often fail to discipline employees following the employer’s receipt of an OSHA citation for fear it will be accused of retaliating, but consistency matters. Consistent enforcement and clear documentation of disciplinary actions taken against employees are key to proving unpreventable employee misconduct.

6.Document, document, document

Having documented disciplinary policies, training records and disciplinary records may help an employer establish effective communication of its rules, active monitoring and supervision of its employees, and adequate enforcement when violations are discovered. Documentation is key in a successful citation contest. OSHA inspectors will almost always request documentation to reduce or vacate a citation.

Consider the employee who fails to wear required fall protection in violation of a personal protective equipment policy. The employer might argue that the employee’s failure to wear PPE constitutes rule breaking and no citation should issue against the employer. If a supervisor saw the employee and did nothing, that is not a case of unpreventable employee misconduct. If a supervising employee was on the jobsite, had reviewed safety rules and necessary PPE with employees before work started and the employee removed his fall protection out of the supervising employee’s sight, this is a clearer case of unpreventable employee misconduct. An employer could prevail in the latter scenario, particularly if it established that it:

  • maintained a written safety policy clearly conveying work rules concerning fall protection;
  • conducted regular training on safety hazards and compliance with safety rules, including discussion of fall protection;
  • maintained a written, progressive disciplinary policy;
  • maintained records of disciplinary action;
  • issued a written reprimand to the employee; and
  • ensured that supervising employees were on site to monitor employees and ensure compliance with safety rules.
by Courtney Moates Paulk
Courtney Moates Paulk, as head of the litigation setion, leads the firm and advises public and private owners, developers, contractors and subcontractors on a broad range of business matters and disputes. 

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