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Employee Misconduct Defense

An employer may not be held responsible for a dangerous workplace where rules have been implemented and enforced that are reasonably constructed to ensure safety. Employers raise employee misconduct as often as any defense to OSHA citations. If proven to exist by the employer, this defense eliminates the citation and penalty related to employee misconduct. That is, the employer must present convincing facts showing that the employer has:

  1. Work rules designed to prevent the violation,
  2. Adequately communicated these work rules to its employees,
  3. Taken steps to discover violations, and
  4. Has effectively enforced the rules when violations have been discovered.

The theory behind the defense is sound: Employers are not insurers of employees' actions; thus, the law sets the OSHA responsibility limits at a reasonable diligence level. One-on-one continuous management supervision is not mandated under OSHA standards; indeed, such continuous oversight would be practically impossible, and an affront to skilled workers and crafts.

Although sound in theory and purpose, this employer defense too often faces open hostility from federal and state OSHA agencies, prosecutors and tribunals. This often is revealed by the high-intensity microscope used to evaluate each and every one of the four factual-proof elements, especially numbers three and four.

Most companies raising this defense to OSHA citations can muster sufficient facts to mount the first two rungs of this defense ladder: work-safety rules (related to the specific cited activity) and communication (training, preferably documented) of those work rules.

The best-prepared and successful employers with good, implemented safety programs focus on elements three and four, providing evidence of how the employer discovers violations and their track record enforcing the rules when they are violated.

Discovering Violations

How do they do this? They regularly document supervisor and safety-committee safety checks or audits. A completed checklist is excellent proof, but so is a supervisor's time-dated notebook with in-compliance, counseling, warnings and similar notations of what activities were safety checked. Documenting worker compliance days or times along with all guards and PPE being worn properly is as important as documenting—and disciplining—the noncompliance checks.

Enforcement History

For the fourth element, a discipline log document is crucial. The log would summarize the employee names, offenses or safety rules violated, dates, discipline given and other comments if appropriate. Without a summary or log, it is difficult to satisfy the fourth prong when violations are discovered.

The touchstone of an effective program, which is an overall assessment OSHA judges and enforcement area directors will use, is how well the program is working. For example, do employees understand it and acknowledge that they could be disciplined for taking the misconduct step; are there reasonably diligent safety-rule audits or checks; and is there prompt, appropriate discipline?

Although not technically a proper factor, OSHA inspectors and supervisors judge many safety programs' effectiveness by the number or type of historical OSHA (final) citations that the employer may have received. That is another reason why employers should make careful decisions in evaluating their options in resolving each OSHA citation item.

*article courtesy of Ehlke Law Offices.

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