October 1, 2012

Michael Wood

Administrator's Message:


Taking jobsite safety and health seriously

I don't often focus this column explicitly on enforcement issues, but I'd like to touch on the issue of an employer's control over the worksite and the people working there.

Every so often, I get some version of the following question: "What do I need to do to make sure that my records and policies are good enough to keep OSHA from citing me?"

My answer is usually that if you ask the wrong question, you'll get the wrong answer. The best way to "OSHA proof" or "Oregon OSHA proof" your workplace really is to do your best to eliminate hazards and ensure that your workplace and the people in it comply with the applicable rules. When you ask what documentation is needed to avoid a citation if there is a problem in the workplace, you are – frankly – anticipating failure, not success.

The notion behind the "unpreventable employee misconduct" defense is that an employer cannot and should not be responsible for the actions of an individual employee whose conduct in violation of the employer's expectations could not be anticipated and addressed. It's the last part that is the difference between "unpreventable employee misconduct" and the garden-variety type of misconduct.

If you have a rule on the books that you know is routinely violated, you can anticipate that it will be much more difficult to beat a citation – especially if the only time you take corrective or disciplinary action is when Oregon OSHA finds a problem. We simply don't find "But I've disciplined my employees every time you've cited me" to be a very compelling argument (and you'd be surprised how often we hear it, in one form or another). Given how much more frequently you're on your jobsite than we are ever likely to be, it's just difficult for us to believe that the only time problems occur is when we happen to be watching.

It's this issue that causes the "unpreventable employee misconduct" defense to stumble. It's not so much that employers don't have the right work rules in place (although a rule that simply says "follow all the applicable safety and health rules" won't get you there); more often, it's that there is little to no effort by the employer and supervisors to determine whether the rules are being followed – and to address the problems that they do discover.

The reality we're looking for is often found in the unwritten rules. I've used this illustration before, but it still makes the point as clearly as any I've found. Over the years, I've had quite a few private and public consultants in two states tell me some version of the following: "I was walking around the jobsite with the owner, and we came around a corner and there was one of his employees, working without the proper PPE. When I pointed it out to him, he said, ‘I know. He's a problem. I tell him and tell him, but he just won't wear the safety gear. But what can I do? He's one of my best employees.'"

One key to making safety a reality on the worksite, of course, is to create an environment where employees who routinely ignore your instructions and engage in blatant insubordination understand that they are not your "best" employees. And creating that environment means the employer has to understand it first.

If you want to beat a citation using the employee misconduct defense, start by making sure that your employees know the rules. Make sure that they have everything they need (including time) to follow those rules. And then make sure that they understand that you'll be checking, and that you expect them to take those rules very seriously, and that there will be consequences if they don't. If you can manage that, you'll have the defense if you need it. But you probably won't because any violations will truly be isolated and unpredictable events.

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