By: Thomas H. Welby Published: April 2011

Unpreventiable Employee Misconduct

In the Construction industry today, every responsible contractor is concerned with job site safety. Safety policy might be motivated by contractual requirements, legal requirements to comply with the Occupational Safety & Health Act (OSHA), a genuine concern for the health and well being of employees, or most probably, a combination of these factors. Despite every reasonable effort by contractors to run safe operations, accidents still happen and despite detailed safety training programs, individual employees sometimes violate safety work rules, exposing the employer/contractor to citations for violation of OSHA. When this occurs, does the contractor have any defense? The answer, as always, is "it depends". The Occupational Safety Health Review Commission (OSHRC), the administrative judicial tribunal that hears disputes between OSHA and employers, has recognized unpreventable employee misconduct as a defense to OSHA citations under certain circumstances.

It is the aim of this article to acquaint contractors with the basics of the unpreventable employee misconduct defense so that you may chose to enhance your safety plans and training programs, and job site procedures, to protect your business from the significant adverse results of Serious OSHA Violations. Furthermore, I believe that safety programs that comply with the requirements for this defense would have the added benefit of improving overall company safety. At our CIC & BCA Winter Meeting in Palm Beach this past February, I had the pleasure of leading a roundtable discussion entitled "Understanding OSHA; Compliance, Inspections, Citations and Resolution." The liveliness of that discussion underscored the importance of a sound safety policy. It was noted that not only have public owners determined bidders to be non-responsible based on Serious or Willful OSHA Violations, but increasingly, major corporate owners in the private sector are disqualifying bidders from their select lists based upon OSHA violations.

Complying with OSHA standards and contractually imposed safety plans is only a bare minimum. I urge each of you to be proactive in managing safety risks in your work places and establishing systems, including paperwork, not only to avoid violations and citations, but to effectively deal with citations when they are issued to you, despite your best efforts.

The OSHRC has taken the position that once the Secretary of Labor establishes a prima facie case for a particular violation, an employer may nevertheless defeat the alleged violation by a showing of unpreventable or unforeseeable employee misconduct. In order to succeed, the employer must demonstrate all of the following elements: 1) that it established a work rule to prevent the violative behavior, 2) adequately communicated the rule to its employees, 3) took steps to discover noncompliance and 4) effectively enforced safety rules when violations were discovered. (See New York Electric State & Gas v. Secretary of Labor and OSHRC, 88 F.3d 98, U.S. Court of Appeals, 2d Cir., 1996) A review of the reported cases before both the Commission and the various U.S. Circuit Courts of Appeals indicates that it is a high threshold for the contractor to prove all of the required elements of the defense. More frequently than not, the assertion of the unpreventable employee misconduct defense has failed. I believe those failures resulted in major part, from a lack of understanding of the systems and procedures necessary to establish this defense.

However, in the case of the Secretary of Labor v. Raytheon Constructors, Inc., the OSHRC upheld the contractor's unpreventable employee misconduct defense, and vacated a Serious citation issued by OSHA. This case may serve as a guide for contractors who want to enhance their safety policy and procedures.

Raytheon was engage in the construction of an incinerator for disposal of chemical weapons at a U.S. Army facility in Oregon. Following an inspection of Raytheon's work site, OSHA issued citations, including fifteen separate items. Half of these were classified as Serious and the rest as Other Than Serious. Raytheon filed a Notice of Contest within the required period and the matter proceeded to a hearing before the OSHRC.

Of the four required elements articulated by the Second Circuit, in the New York State Electric & Gas case, the first two elements are the easiest to establish. These are, 1) establishing a work rule to prevent violation of the OSHA standard, and 2) adequately communicating the rule to employees. Having a professionally prepared, updated company wide safety plan is basic to any corporate safety policy. Likewise are site-specific plans, tailored to the work site where the employer is working. Overly broad, boiler-plate safety plans are not adequate. Make certain that your safety plans cover all of the possible standards that may apply to your operations. All work rules must be in writing. It is not sufficient to merely communicate the work rules and safety plan to your employees. You must have a written record of that communication (If it ain't in writing, it didn't happen.) When the work rules and safety plan are communicated to employees either during orientation or at tool box safety meetings, obtain a signed receipt from each employee. This will help establish at the hearing that you adequately communicated the rule to employees.

Raytheon demonstrated its efforts to discover and correct violations of its safety rules by having its safety manager conduct safety compliance inspections several times each day. It is not enough to say that these inspections were made on a regular basis. In order to persuade the Judge, the contractor should have contemporaneous written business records such as a separate portion of the daily report, indicating that the daily safety inspections were made. Testimony unsupported by written records tends not to be persuasive at the hearings.

Lastly, the employer must prove that it effectively enforced the safety rules when violations were discovered. Raytheon met that burden by showing that it had in place a progressive disciplinary plan with increasingly harsh measures taken for infractions of the work rule. It was able to produce at the hearing, copies of three letters written at various times to employees concerning their violation of the work rule in question, which was a requirement that welder's helpers wear eye protection. Additionally, Raytheon's safety director showed that he had terminated an employee in the past for a safety rule violation Without enforcement, the unpreventable employee misconduct defense will fail.

In conclusion, when the facts establish that an OSHA standard was violated, an employer may still have a valid and effective defense against the citation when that violation was the result of an employee's misconduct.

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