By: Thomas H. Welby Geoffrey S. Pope Published: February 2019

"Unpreventable Employee Misconduct" Defense Rejected Due to Lack of Clarity and Sufficient Communication of Work Rule

An OSHA construction standard, 29 C.F.R. § 1926.451(c)(2)(v), forbids using a forklift to support a scaffold platform, unless the entire platform is attached to the fork, and the  fork-lift is not moved horizontally while the platform is occupied.

In Secretary v. Magnum Contracting Inc., while working to erect the steel frame of an office building in North  Dakota, two supervisory employees of the erection company decided to use a JLG telehandler and a Haugen work platform to lift one of them to the height of the second floor, about twelve feet, to perform some last-minute welding at the end of their shift.  The Haugen platform was described as a “screened floor with removable sides,” and an elevated work surface that could be moved around the job site.  Magnum used this equipment only about twice a year; the two men elected to use it because both of the personnel lifts were in use, and work was about to cease for the day.

The telehandler, a rough terrain forklift, had a boom with forks attached, and large knobby tires for use on uneven ground.  The platform originally came with pins designed to secure the platform to the forks, but those had been eliminated, to allow the platform to accept a variety of fork lengths.  The platform also had a chain for use in chaining the platform to the forklift’s mast.  The two men (Brown and a second man, whose name was “Redacted” from the published decision) inserted the forks into iron channels under the platform designed for that purpose.  The men forgot to use the chain, however, or to otherwise affix the platform to the forklift.

The operations and safety manual for the telehandler, as well as a sticker inside the cab, cautioned against driving the forklift while personnel were on a work platform.

 “Redacted,” the second employee, took his welding equipment, and climbed onto the platform.  Brown, operating the forklift,  lifted the platform vertically to a height of about twelve feet, and drove the forklift toward the building, with “Redacted” inside the platform.  As the lift was traveling toward the building, with “Redacted” aboard, the horizontal movement of the forklift caused the platform to slide loose of the forks, and crash to the ground below.  “Redacted” fell from the platform to the ground, suffering three broken ribs and a partially collapsed lung.  The severity of these injuries effectively established the infraction as a “Serious” one, as the definition of “Serious,” for classification purposes under the OSH Act is “a substantial probability that death or serious physical harm could have resulted from the violative condition.”

OSHA cited Magnum Contracting for a single, “Serious” violation, and recommended a penalty of $9,053.00.

Magnum contested the citation.  The parties agreed in writing to most of the material and relevant facts, and submitted their factual stipulations, together with legal memoranda, to the Administrative Law Judge for decision without a trial, each side arguing that they were entitled to judgment as a matter of law.

Magnum, perhaps unwisely, placed its primary reliance on the affirmative defense (i.e., a defense on which the employer had the burden of proof) of “unpreventable employee misconduct.”  While cited employers like to think that the existence of  a company safety program makes most OSHA violations the fault of their employees, actually the requirements to sustain this defense are stringent.  It is frequently asserted, but seldom succeeds.

The ALJ had no difficulty, based on the stipulated facts, in finding that all the elements of an OSHA violation had been established.  OSHA jurisdiction, and Magnum’s status as an “employer,” were conceded.  The telehandler’s status as a forklift was stipulated to by the parties, and the platform was easily found to meet the plain language and case law definitions of a “scaffold platform.”  The applicability of the cited standard did not appear to be a close question.

Similarly, it was short work for the ALJ to determine that the terms of the standard had been violated, as a forklift may only be used to support a scaffold platform if it is secured, and not moved horizontally, which undisputedly is the opposite of what had happened in the case before the judge.

Employee exposure to the hazard, a further element of every OSHA violation, can be established by showing that, during the course of their assigned working duties, their personal comfort activities on the job, or their normal ingress and egress to and from their assigned workplaces, employees were in a zone of danger, or it was reasonably predictable that they would be in a zone of danger.  Where an employee falls and is injured, actual exposure to a fall hazard is indubitable, so this element was established, too.

Brown’s and “Redacted’s” status as supervisory employees ruled out any question but that their employer had had knowledge of the violation.  A supervisor’s actual or constructive knowledge of an OSHA violation is generally imputed to the employer, and actual knowledge on the part of the employer is established, when a supervisor directly sees an employee’s misconduct, or takes part in it himself (which was the case here).

All elements of the violation having been easily established, the employer’s proverbial eggs in Magnum Contracting were all in the basket of the tough, “unpreventable employee misconduct” defense.

Because supervisors have a duty to protect the safety of employees under their supervision, this defense is more difficult to establish when the alleged misconduct is that of a supervisor.

The defense requires an established work rule proscribing the violation cited, adequate communication of the rule to employees, proof of steps taken to discover violations, and effective enforcement of violations discovered.

 Work rules need not be written, but they must require compliance, or forbid noncompliance.  They must be clear enough to eliminate employee exposure to the hazard covered by the standard, and communicated in such a way that their mandatory nature is made explicit, and their scope clearly understood.  “Clear communication” requires adequate training, and instructions designed to prevent the violation.

Magnum, remarkably, stipulated that it did not have a work rule that required securing a platform on a forklift, or forbade moving a forklift horizontally while supporting a platform with an employee on it.

Having stipulated to the lack of the critical work rule just mentioned, Magnum nevertheless sought to rely on a late-discovered safety manual, available to employees, that communicated the substance of the rule, but turned up only 8 months after the accident.  The circumstances, the ALJ found, gave the impression that the written rule was “a recently remembered written formality rather than a clearly communicated and practiced work rule.”  The employer’s seeming unfamiliarity with its own alleged work rule created a reasonable inference, the ALJ found, that the work rule was not clearly communicated or effective.

The only other evidence of communication proffered by Magnum was that “Redacted,” one of the two violators, had signed into a toolbox talk on the subject (and that Brown, also, may have been exposed to relevant safety topics).  However, what one or both men had been taught was not that horizontal transit of a forklift with anyone on the platform was forbidden, but that it was not permitted if the platform was elevated to a height greater than four feet.  The ALJ found that Magnum had not proved the existence and conscientious communication of a work rule that would prevent the violation cited, and the citation and the penalty were confirmed.

One obvious take-away here, is that you must not permit employees on platforms supported by forklifts, that are in motion horizontally.

In addition, know that the mere existence of safety rules, absent clear and conscientious communication and enforcement, is useless, both to prevent injuries, and to establish the “unpreventable employee misconduct” defense.

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