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.
As president of Hirschler and head of the firm's litigation section, Courtney knows how to lead people and projects to a successful outcome.
Leveraging deep experience in the construction industry, Courtney advises public and ...
Kelly’s practice focuses on construction law, commercial and product liability law, with an emphasis on dispute resolution—including mediation, arbitration, jury and bench trials in state and federal court. She routinely ...
Nate fully engages in each case and shoulders his clients’ needs. Communication, efficiency and careful judgment define his practice. In every case, he investigates competing claims to thoroughly understand their strengths ...
A professional engineer (P.E.) and an experienced lawyer, Webb began practicing at Hirschler Fleischer following four years of work as a consulting engineer. His multidisciplinary practice focuses on general business and ...
SubscribeSubscribe to Hirschler by Email
- New Defense to Joint Liability Available to Contractors
- What Employers Need to Know About Virginia’s New Overtime Wage Act
- OSHA Increases Amounts of Civil Penalties for 2021
- Have Force Majeure Defenses Based on COVID-19 Been Successful This Year?
- Kelly Bundy and Liz Burneson Publish Article on Joint Employer Status in Construction Executive
- Kelly Bundy Authors Article for ABA Construction Law Forum’s “Under Construction” Series
- Miller Act Notice More Than 90 Days Before A Subcontractor’s Final Day of Work Held Untimely
- Virginia Supreme Court Allows Sub-Sub Material Supplier To Recover Directly From General Contractor For Unpaid Material
- New Virginia Law Can Make General Contractors Liable for Subcontractors' Employee Wages
- OSHA Changes Course on COVID-19 Record-Keeping Requirements
- Fair Labor Standards Act
- Lien Waivers
- Occupational Safety and Health Act (OSHA)
- COVID-19, Coronavirus Outbreak
- Department of Labor (DOL)
- Little Miller Act
- Dispute Resolution
- Miller Act
- Government Contracts
- Workforce Development
- Mechanic's Liens
- Department of Professional and Occupational Regulation (DPOR)
- Force Majeure
- Joint Checks
- Unjust Enrichment
- Virginia Employment Commission (VEC)
- Virginia Workers' Compensation Commission
- Uniform Statewide Building Code
- Change Orders
- April 2021
- January 2021
- October 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- November 2019
- August 2019
- June 2019
- April 2019
- February 2019
- January 2019
- December 2018
- October 2018
- September 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- November 2017
- October 2017
- September 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016