By: Thomas H. Welby Geoffrey S. Pope Published: January 2018

Perils of the "Unpreventable Employee Misconduct" Defense

It’s best to resist the urge to take an OSHA citation personally.  Face it:  construction, especially medium- and large-scale commercial projects, is a complicated, and inherently-dangerous, affair.  It’s one of the most hazardous industries in America, and thus one rightly targeted by OSHA for energetic enforcement.  Most sites have six, or ten, or more trades working at any given time, and the cast of characters is usually fluid as the project moves along.  Some subcontractors, particularly smaller ones, and non-union outfits, may not have dedicated safety staff.  If you’re the general contractor, you’re responsible for the OSHA sins of all.  And, while many OSHA construction standards are fairly obvious matters of common sense, others are somewhat technical, and can be difficult to teach to employees.

In short, if construction is your business, unless you’re one of those fly-by-night outfits that works in the dead of night to avoid OSHA inspectors (and the immigration authorities) you’re likely to get inspected once in a while.  And, even if, overall, you strive to work by OSHA’s rules, a sharp-eyed Compliance Officer can usually find something to cite you for.

We have encountered some construction business owners, however, who see a citation alleging one or more OSHA violations as a stain on their personal integrity.  Their first impulse is to file a Notice of Contest, and fight every citation item to the very death.  Which, more often than not, is a mistake (we have addressed matters to consider in deciding whether to contest an OSHA in a prior article).

Another knee-jerk reaction we have encountered is that the business owner who sees himself as safety-conscious, and whose company has even a lukewarm safety program, assumes that the fault must lie with one or more errant employees, rather than with ownership.  Such an owner, if he has heard the term, “unpreventable employee misconduct defense,” may seize upon this, as a promising means to contest the citation.

Given the cost of preparing and trying the trial of a contest proceeding, we counsel caution before going down this path.

To be sure, OSHA does recognize a defense based on unpreventable employee misconduct.  If you have a pending citation, and after reading this article you think you may have a basis to assert this defense, by all means discuss it with your attorney.

Be aware, however, that since unpreventable employee misconduct is an “affirmative defense,” you will have the burden to plead and prove every one of its four elements, by a preponderance of the evidence.

Also, contrary to a misconception held by many, you will not sustain “unpreventable employee misconduct” just by showing that you have a safety program, provided training, and one or more employees broke company rules, resulting in the OSHA violation.

Alas, the requirements to establish “unpreventable employee misconduct” are stringent, and if this is “all you’ve got” by way of grounds to have your citation vacated, you are likely to be better off trying to negotiate on the monetary penalties (and, perhaps, the severity level of the citation item[s]), showing contrition for the violation, providing some extra training on the issues relevant to the citation, and moving on.

The exigencies of the defense are illustrated by Secretary v. Empire Roofing Company of Georgia, Inc.  In that case, the employer was charged with violations related to the fall-protection standards, detected when OSHA Compliance Officers, driving past a jobsite in Georgia, espied two foremen and two laborers working about 40 feet above grade on the roof of a hotel under construction. without any visible means of fall protection.

To make a bad situation worse, the workers, when ordered by the OSHA inspectors to come down off the roof, chose not to tie off while descending from the roof in an aerial lift, resulting in an additional citation item.

To digress, we can’t tell you how many OSHA cases we have seen in which employers were cited for fall-protection violations seen by OSHA inspectors from the street.  Not only are falls the #1 cause of construction fatalities (and OSHA citations) but they are singularly-obvious violations as well.  While of course there do exist some complex construction standards, nearly anyone can foresee the probable result of falling from a 40’ rooftop.  The fall-protection standard is one you should never tolerate being violated on your jobsites.

In Empire Roofing’s contest of the citation, the ALJ, based on OSH Review Commission precedent, rejected the employer’s argument that traveling in the lift, to and from the work location, did not constitute “working from an aerial lift” within the meaning of the regulation.  The ALJ rejected, also, the employer’s contention that the laborers (who testified that they had removed their harnesses on the roof only as their shift was about to end, about 15 minutes before the OSHA inspectors’ arrival) had been induced by the inspectors to descend, without tarrying to put their harnesses back on, and tie off to the lift.

The employer in Empire Roofing asserted, but failed to sustain, the “unpreventable employee misconduct” defense, which is recognized when “the actions of the employee were a departure from a uniformly and effectively communicated and enforced work rule.”

In order to successfully establish this defense, the respondent employer must show that it has (1) established work rules designed to prevent the violation; (2) adequately communicated those rules to its employees; (3) taken steps to discover violations; and (4) effectively enforced the rules, when violations have been discovered.  More rigorous proof is needed where, as in Empire Roofing, one or more supervisors were involved in the conduct constituting the violation(s).

The ALJ in Empire Roofing found that the employer had succeeded in showing three of the four elements of the defense.  First, it showed that it had rules addressing the need for fall protection while working at elevations above 6 feet, or in an aerial lift.  It established, too, that by various means (new hire training, a full-time safety manager, training in Spanish as well as English, toolbox talks, etc.) it strove to ensure that safety rules were communicated to its employees.

The third element — steps to detect violations of the employer’s safety rules — was also found to have been established.  The employer’s service manager visited the worksite at least three times a week, and an outside consultant made 10 random, unannounced inspections per month.

Despite all of the foregoing, the “unpreventable employee misconduct” defense failed, and the citations were upheld. The ALJ found that the defense was effectively negated by the participation in the misconduct of two foremen. In so doing, the ALJ cited Commission precedent for the proposition that “a supervisor’s breach of a company safety policy is strong evidence that implementation of the policy is lax.”

Although the employer’s “broad description of [its] enforcement efforts suggest[ed] a robust program,” the ALJ found, the heightened scrutiny required, due to the supervisors’ participation in the misconduct, uncovered failures and inconsistencies that the ALJ found negated the defense.  For example, the “job inspection check list” for the day of the inspection found that the foreman had checked “yes” for the use of a safety monitor, although the testimony was consistent that a personal fall arrest system was the form of fall protection used.

Another example was that one of the laborers was found to have signed a document indicating that he understood the hazards of chemicals being used on the Project.  This document, however, was in English, and the laborer who signed it did not know how to read English.  On the whole, the ALJ found the employer’s evidence of effective enforcement “unconvincing.”

Thus, if “unpreventable employee misconduct” is the linchpin of your defense to an OSHA citation, you and your attorney should scrutinize it closely, before going forward with a contest proceeding, because the ALJ certainly will, and good intentions and desultory efforts will not sustain it.

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