Every Effort Counts in an Employee Misconduct Defense
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It happens. The Occupational Safety and Health Administration (OSHA) conducts an inspection of your company’s workplace and discovers that an employee is not wearing their personal protective equipment (PPE) needed for the job task the worker is performing. The Certified Safety and Health Official discussed the potential hazards that were observed at the closing conference and has made a recommendation as to what citation or citations will be issued.
Three months later, the company receives a violation in the mail from OSHA along with a cover letter noting that a citation is enclosed; a reference to OSHA’s publication Employer Rights and Responsibilities Following an OSHA Inspection; the Citation and Notification of Penalty; the phone number of the area office to request an informal conference; information on how to pay OSHA penalties; a notice to employees of an informal conference that must be posted if an informal conference is requested; and the Certification of Corrective Action Worksheet that employer uses to show abatement of the alleged hazards. It is quite overwhelming for most employers, especially if one has never dealt with an administration like OSHA.
It can also be discouraging as a business owner when this occurs. After all, you have formal training for workers on wearing the company-issued PPE that includes a written plan, PPE exposure analysis, and a required signature of the safety manual by each worker. You provided the worker a nice pair of ANSI Z.87-rated safety glasses suitable for the exposure. You even have a supervisor who regularly enforces this common workplace rule and disciplines workers who do not wear the required gear. Unfortunately, that supervisor was in a different location that moment and did not observe the worker without the necessary PPE. The employee was simply caught at the wrong place and time without the necessary (and required) safety gear.
The “unpreventable employee misconduct” defense is a legal argument that employers can use to defend themselves against OSHA citations. If an employer successfully proves an affirmative defense, they can be relieved of some or all responsibility for the alleged violation.
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December 2024
The company is now facing a significant penalty. OSHA recently raised the penalties for serious and other-than-serious violations in 2024 to $16,000 per violation. In addition, the clock has just started ticking, as a company has five days to formally contest the violation—or it stands.
Affirmative Defense
Is there a potential remedy for employers in this situation? The following affirmative defense allowed under administrative law can potentially counter the violation.The “unpreventable employee misconduct” defense is a legal argument that employers can use to defend themselves against OSHA citations. If an employer successfully proves an affirmative defense, they can be relieved of some or all responsibility for the alleged violation. There are four key points to establish the unpreventable employee misconduct defense in most jurisdictions, and employers must show all the following elements:
- A work rule adequate to prevent the violation
- Effective communication of the rule to employees
- Methods for discovering violations of work rules
- Effective enforcement of rules when violations are discovered
OSHA has strict definitions for this part of the OSHA Act. According to OSHA, a work rule is 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. This means that an employee should be trained on the work rule before the start of the job task. Verification that the employee understands each work rule is key in this process.
These rules should be part of a formal written safety plan that is part of the onboarding of the worker and should be an appropriate control for the hazard. The worker should sign safety manuals, acknowledging that they have read and understand the plans contained therein.
To pass the “methods for discovering violations of work rules” section, an employer will have to demonstrate that work rules are not just in place but that inspections and routine supervision of safe work practices exist. This is where many companies fail the four-part test.
Prudent inspections and workplace observations should not just be conducted but should be recorded. Each job site should have mandatory pre-work tailgate or safety meetings that are documented. These should include the hazards presented at that worksite for each job task, controls for the hazards that are present, and employee input regarding the workplace. The company should also have a stop-work authority policy to allow for uncontrolled hazards to be mitigated when observed. All workers should be able to recognize and report hazards that are then mitigated and recorded to document the actions taken to reduce the potential risk. These actions could ultimately help prove that the company does seek out isolated misconduct and can help control systemic safety failures in the workplace.
Adequate oversight of work rules has traditionally been a very effective means of reducing worker injury rates because it is active involvement on the jobsite and can prevent occurrences before they happen. Using a formalized near-miss reporting and investigation plan is another means of proactive risk management. By studying the causation of the incident and correcting the hazard, accidents that cause injury can often be mitigated. Be sure to document this process, as that will aid in the argument that this violation was unavoidable.
Diligence and Discipline
Bear in mind OSHA will assess whether a supervisor or company official overlooked a work rule or safety process. According to OSHA’s Field Operations Manual, “the knowledge requirement can be established if there is evidence that the employer could have known of it through the exercise of reasonable diligence.” Certified Safety and Health Officials also attempt to determine the extent to which the supervisor was trained in the rule and supervised regarding compliance to prevent such conduct. The investigator will also attempt to determine whether the employer knew, or with the exercise of reasonable diligence could have known, of the presence of the hazardous condition. Haphazard exposure assessments can poke holes in the company’s attempt at using the affirmative defense.
Implementation of discipline is the final element for those who do not follow the work rules. When workers do not follow established work rules, using a progressive discipline approach for “just cause” is likely the best approach.
Progressive discipline is a process that employers use to improve employee performance and conduct by increasing the severity of consequences for repeated offenses. Regardless of the discipline policy, it should be a formalized and written policy. It should also be consistent and documented every time. This includes any verbal warnings. By using this prudent approach, the company can justify actions in the all-important fourth step of the “unpreventable employee misconduct” defense. It will also help solidify the company’s culture of safety and allow for the solid coaching of workers for improvement on the job.
This affirmative defense is not a silver bullet. It should also be used very sparingly, as it is doubtful this argument could be made over and over. The best methods for avoiding an OSHA violation have always been to have a safe work environment that has good controls for the exposures that are present. Protecting the worker as a primary goal and ensuring that the employees can protect themselves and one another. Everyone wants to go home safely. That should be the outcome.
But things happen. It is good to know how to protect the company when good efforts are made but employees do not do the right thing. OSHA can see that effort was made.
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