The "Unpreventable Employee Misconduct" Defense
Most good health and safety managers will tell you that “All
accidents are preventable.” As a lawyer who often defends employers in OSHA
proceedings, I completely agree. And yet, accidents still happen and employers
do get cited because some employee did something that he was not supposed to
The unpreventable employee misconduct
defense might seem to run counter to the principle that all accidents are
preventable. But just last week, I was reminded how effective that defense can
be in an OSHA proceeding when your client has taken active steps to prevent
accidents. So I thought that this might be a good time to remind everyone what
your lawyer would need to demonstrate in order to prove unpreventable employee
misconduct in front of an administrative law judge.
employers have met the first element of the defense by establishing work rules
adequate to prevent the violation. But can you demonstrate that you effectively
communicate your rules to your employees? Sure, you gave your employees a copy
of your safety rules during their initial orientation, but what have you done
to make sure that they read and understood those rules? How frequently did you
train your employees? Was the training interactive? Were employees quizzed?
Were employees shown how the training applied to their particular job? Having a
Lock out/Tag Policy in your safety manual is fine, but did someone actually
demonstrate how it is implemented in the field?
must also be able to show that it developed methods for discovering violations
of work rules. In my trial last week, for example, my client was able to show
that its safety manager regularly visited the worksites to ensure that rules
were being followed. In order to ensure that employees completed job safety
analyses before doing a job – which had not been done in this case – the employer
described how it had issued tablets to employees so that the employer could
monitor in real time when the documentation was being completed.
In order to
avail itself of the unpreventable employee misconduct defense, an employer must
be able to demonstrate that it has consistently enforced its safety policies by
disciplining employees when violations have been discovered. For example, if
the company has been cited because an employee was not wearing required PPE
(Personal Protective Equipment), the employer should be able to provide
testimony and documentary evidence that employees are regularly disciplined
when not wearing their PPE.
benefit of doing all of these things, however, is not that you will be able to
avoid liability for an OSHA violation, but that you will prevent an accident
from happening in the first place.
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