Laying the Groundwork for an Employee Misconduct Defense

Too often, employers receive OSHA citations based on the actions of wayward employees, or what OSHA refers to as “employee misconduct.” With rising OSHA fines and the increased use of safety records in determining contractor responsibility, employers will need to place greater emphasis on preventing and defending against these violations. The best way to do this is by preparing ahead of time to assert an Employee-Misconduct defense. By being proactive, employers will not only ensure they are able to establish a record to assert this defense, but will also prevent violations before they occur.

According to OSHA’s Field Operation’s Manual, in order to successfully assert the employee misconduct defense, an employer must prove the following elements:

• A work rule adequate to prevent the violation;
• Effective communication of the rule to employees;
• Methods for discovering violations of work rules; and
• Effective enforcement of rules when violations are discovered.

The good news is that each of these elements is within the complete control of employers. The bad news is that there are several hurdles to proving this defense that many employers fail to clear simply because they do not keep sufficient records of inspections and discipline. Below are five practical suggestions to consider implementing:

(1) Ensure all safety programs are in writing and current. Often employers will prepare thorough safety plans and policies and then neglect to update them as their business changes. Keep these programs up-to-date so that they can be enforced as written and provided to OSHA upon request.

(2) Create a sign-in sheet for all safety orientation and training programs. Be sure to include on the sign-in sheet a short description of the subject matter of the training. This is a foolproof way to ensure there is no dispute over whether rules and training were communicated to particular employees.

(3) Include the duty to perform routine safety inspections in the job descriptions of supervisors. This shows that work rules are communicated to the supervisors and that it is their responsibility to enforce these rules. It also ensures that supervisors understand that safety inspections are an important part of their job.

(4) Create checklists for supervisors to complete each time they conduct an inspection. These checklists can be simple and short. Make certain the checklists include the areas, items, and processes inspected and the date and time of each inspection. Keep these checklists readily accessible either in hard copy or electronically.

(5) Document all disciplinary actions, including “verbal” warnings. Often, verbal warnings are the first line of discipline in a safety program. Where it is an employee’s first violation, they receive only a verbal warning. Unfortunately, other than a supervisor’s memory, there is usually no way to track these “verbal” warnings. This issue arises often in violations related to the use of personal protective equipment (PPE).

Consider a situation where an employer issues five verbal warnings, each to a different employee, for their first violation of work rule “A.” Those employees have no further violations of work rule “A.” OSHA conducts an inspection and issues a violation related to work rule “A.” The employer in this scenario has no way to show enforcement and discipline other than telling OSHA that it issued verbal warnings for violations of the work rule. To complicate matters further, many times, the employees who received the verbal warnings are no longer with the company. By simply documenting these verbal warnings, employers can establish a history of enforcement and discipline.

Frequently, employers are caught off guard by OSHA citations because they did not document routine enforcement and discipline actions. By implementing practical documentation policies, such as the five listed above, you can ensure that you are prepared to assert an employee misconduct defense.