Construction Law Blog

Employers faced with possible OSHA violations often want to shift blame to an unruly employee.  This is called the defense of “unpreventable employee misconduct.”  An employer is not relieved of responsibility simply because an employee did not follow the rules. In order to assert this defense effectively, an employer should take note of these four tips.

1.        Document, Document, Document.

Documenting safety and disciplinary policies and maintaining training and disciplinary records can prove invaluable.  

Create an effective, written disciplinary policy.  Safety policies and work rules should contain clear, specific requirements and prohibitions designed to prevent unsafe conditions and violations of applicable OSHA standards.  These policies and rules should be written in such a way that their mandatory nature is clear.  Have a qualified safety director or other professional review safety policies on an annual basis or whenever there are important safety-related developments in the industry.   If employees believe there are exceptions to certain rules, or if multiple employees violate a particular rule, this may indicate insufficient or unclear work rules.

Having documented disciplinary policies, training records, and disciplinary records may help an employer establish that it effectively communicates its rules to employees, that it monitors and supervises employees, and that it enforces its rules when violations are discovered.

2.        Communicate work rules to employees effectively.

Communicate safety policies and work rules to employees effectively.  Simply referring employees to OSHA standards is not sufficient.  Nor is simply having employees sign forms acknowledging a responsibility to read safety manuals.  If employees do not speak English as their first language, then simply communicating rules in English may not be sufficient.  Ensuring that employees read safety manuals, conducting periodic training for employees, and periodically reviewing work rules (and documenting all of these actions) can help establish adequate communication.  Again, repeated noncompliance by employees or noncompliance by several employees may demonstrate ineffective communication.

3.        Monitor employees to identify and prevent safety violations.

Take reasonable steps to monitor the workplace.  Ensure that there are supervisors on site to monitor the work, and ensure that other employees monitor supervisors.  Employers do not have an obligation to monitor and supervise the workplace 100% of the time, but it must take reasonable steps.

4.        Have a progressive disciplinary policy and enforce it consistently. 

Develop and maintain a progressive disciplinary program that has progressive levels of disciplinary action designed to deter future violations.  For example, written reprimand to suspension to termination—depending upon the severity of the violation and/or the employee’s disciplinary record.  Actually enforce disciplinary policies and discipline consistently and promptly among all employees after discovering violations.  Postponing disciplinary action may indicate ineffective enforcement.   Maintain records of all disciplinary policies and disciplinary actions taken against employees.