By: Thomas H. Welby Published: January 2011

Safety Policy: Written Records and the"Unavoidable Employee Misconduct" Defense

Since your company devotes considerable time and money to safety training and OSHA compliance, those efforts should include making and keeping records of training content, rule enforcement, and the like.

As you are probably aware, OSHA practice recognizes, in limited circumstances, the doctrine of “unavoidable employee misconduct” as a defense to a citation.  

Several of our clients have had the experience of being cited for OSHA violations, in circumstances in which they felt that the violation occurred wholly due to an experienced, knowledgeable employee forsaking ordinary common sense, and breaking a work rule of which he certainly ought to have been aware.

While it’s vexing to get cited for an obvious and common OSHA violation that has been discussed over and over in “toolbox talks” and safety meetings, unfortunately the defense of “unavoidable employee misconduct” is somewhat technical, and will save the employer an adverse finding and the associated penalty only where conditions, not easily met, are shown.

To illustrate the doctrine and its limitations, I’ll discuss Secretary v. P. Gioioso & Sons, Inc., which serves the further beneficial purpose of reminding readers of one of the deadliest, and most commonly-cited, construction-related hazards:  employees unprotected while working in trenches.

In Gioioso, an OSHA inspector passing a construction site in Boston observed employees working in a trench.  Since this compliance officer worked in a suburban OSHA office that did not have primary jurisdiction over the site, he did not immediately demand to inspect the trench, but returned later when no one from the primary office was available.

On returning to the site, Compliance Officer Henrikson saw an employee climbing out of a trench that appeared to be 6’ deep, and which had no shoring or other protection.  Seeing no other workers about, and it being around noon, CO Henrikson deduced that most of the workforce was at lunch, and so went to lunch himself.

Returning after lunch, Henrikson saw an employee exiting the east end of a second trench.  He left this trench briefly to look at two additional trenches which proved to have no one working in them.  Upon returning to the second trench, he saw one employee standing alongside it, and another in the east end of the trench digging with a shovel.  The trench was up to the top of the employee’s head.  The walls were vertical, and there was no protection in the trench.  The CO identified himself, and asked the employee to exit the trench, which he did by stepping onto an electrical duct bank near the east end.  This employee identified himself as José Ourique, and stated that he was the foreman at the site.

Gioioso’s superintendent, Joseph Zenga, arrived a few minutes later, and told the CO that he had not inspected or measured the trench before employees entered it.  Ourique told the CO that he was not the “competent person” at the site, and had not measured the trench.  He had been hand-digging in the trench, to locate the “corporation valve” to which the new water service pipe was to be connected.

CO Henrikson spoke with Gregory Perreira, an equipment operator, who had been standing alongside the trench when the CO first saw him.  Perreira said that superintendent Zenga came by the trench six to eight times a day.  Zenga, he reported, had been by the trench at lunchtime.  Ourique had been in the trench then, but Zenga had said nothing to him, or to anyone else, about trench protection.  Perreira said that Robert Bruni was the employee the CO had seen exiting the trench, and that he himself also had been in the trench, albeit at the shallow end.

The CO measured the trench as being 5’8” deep at the deep (east) end.  A trench box was onsite, but could not have been used due to the various utility lines in the trench.  The trench could have been shored, but the CO found no shoring materials onsite.  The CO determined the soil in the trench to be gravelly “Type C” soil (the most unstable kind) that had been sloughing from the trench walls, and was particularly susceptible to cave-ins due to vibrations caused by construction and vehicles being operated in the area.

Gioioso was cited for one “Repeat” violation, for having employees in an unshored trench more than 5 feet deep; and for two “Serious” violations, for not having the trench inspected by a “competent person,” and for failure to provide a ladder or other suitable means of egress.  Gioioso contested the citations.

As always, the Secretary had the burden to prove, as to each citation item, that (1) the cited standard applied; (2) there was a failure to comply with the standard; and (3) employees had access to the violative condition.  In Gioioso, in addition to arguing that the Secretary failed at the trial to meet her burden of proof, the employer raised as a defense that any violations of the cited standards were due to “unpreventable employee misconduct.”

Gioioso’s arguments that the Secretary had not proved the violations were unconvincing.  For example, it offered speculation that possibly the trench had been dug deeper in the ten minutes between the time that the CO saw Mr. Bruni emerge, and when he saw Mr. Ourique in the trench.

The “Unavoidable Employee Misconduct” defense requires proof that the employer (1) had an established work rule; (2) communicated it; (3) took steps to discover incidents of noncompliance; and (4) enforced it with disciplinary measures.

In the Gioioso case, the defense was rejected in part because Ourique ? one of two employees who had violated the rules ? was a foreman.  Also, although visits by supervisory personnel were claimed as demonstrating steps to discover transgressions, Zenga’s appearance on the day of the inspection, at which time he saw Ourique in the trench without protection but failed to say anything, pretty much let the air out of that argument.

The ALJ made special mention of a prior case involving Gioioso, in which an appellate court had stressed the absence of documentary evidence in rejecting the UEM defense.  Without corroborative paperwork to show, e.g., unscheduled safety audits, mandatory safety checklists, actual implementation of a disciplinary policy, the contents of safety talks and attendance records, an employer cannot persuasively argue that it met the criteria necessary to establish the defense.

While reducing risk should be your safety program’s primary goal and avoiding or defending OSHA citations a secondary goal, everything you do ought to be recorded, and the records preserved.  A potential defense should not be lost due to a lack of supporting documentation.

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