Challenging OSHA Citations with the Unpreventable Employee Misconduct Defense

By Jonathan Landesman, Michael Metz-Topodas, and Christopher W. Sexton 

Despite the construction industry’s few areas of certainty, contractors can invariably count on facing an OSHA compliance inspection at some point. These visits are meant to ensure everyone on-site is complying with OSHA’s many and detailed construction-related standards and regulations. When these inspections reveal noncompliance, contractors often end up receiving citations for violations, sometimes with costly fines.  

Construction companies fend off the risk of citations and fines by having robust safety programs covering all areas of job performance. But what happens when, despite an employer taking all reasonable measures to run a safe job site, OSHA still finds violations and issues citations? What happens when a careless or reckless employee ignores company safety policies and training? Should the employer be liable? Would an OSHA citation be warranted? Courts interpreting OSHA regulations say: “Not always.” The Unpreventable Employee Misconduct Defense (UEM Defense) is an effective tool for safety-conscious contractors whose employees’ errant conduct results in citations and fines.  

The OSHA Citation Process 

The OSHA citation process begins with an OSHA compliance officer arriving on-site to perform an inspection, usually triggered by a complaint or an incident involving an injury or fatality. The officer is required to limit the job site review to locations relevant to the inspection’s purpose. For example, an inspection responding to a complaint of inadequate fall protection could look at elevated areas, but not, say, silica levels at demolition locations. Contractors may, and often do, have their counsel present during such inspections, or at least consult their attorney as soon as they learn of the inspection. 

When a compliance officer finds violations and issues citations with fines, the cited contractor can seek to negotiate a resolution with OSHA, but has only fifteen days to do so. Failing a satisfactory settlement, a contractor may submit a notice of contest to the citation, which moves the process into a formal proceeding, much like a litigation. During this process, a contractor can formally raise the UEM Defense. Contractors usually negotiate settlements, contest citations, and raise the UEM Defense through their counsel. 

The UEM Defense 

When raising the UEM Defense, a contractor argues that it took all reasonably possible measures to prevent the conduct cited and does not deserve the citation and fine. This defense arises out of the legal premise that a contractor should not have strict liability for OSHA Act violations. 

Like many other legal principles, the UEM Defense has several elements which the cited contractor bears the burden of proving. Specifically, a contractor must show it: 

1. Established a work rule to prevent the cited violation and/or unsafe behavior or conditions from occurring (policy) 
2. Adequately communicated the rule to employees (communication) 
3. Took steps to discover noncompliance (monitoring) 
4. Effectively enforced the rule whenever employees transgressed it (enforcement) 

Evidence Required and Advance Measures 

To satisfy these elements, contractors need the right kind of evidence, which requires taking appropriate action well before receiving an OSHA citation—after is too late. Remember the old saying: “By failing to prepare, you are preparing to fail.”¹ The following specific types of evidence support each element. 

1. Policy – A contractor meets this element by showing written safety policies and practices—both company-wide and job-specific—that match or exceed what the OSHA standard referenced in the citation requires. For example, for a roofer to meet this element, it should: 

• Have a written safety manual and safety policies that align with or even mimic OSHA’s fall protection standards 
• Have a written safety plan for each job, including a fall protection plan if necessary 
• Hire someone with fall protection expertise to serve as a safety manager or as the designated person responsible for company-wide safety 
• Supply and provide all necessary safety equipment, such as harnesses and lifelines 

2. Communication – Written policies, however, provide no defense unless the company communicates them to its workers by explaining not only rules and policies, but also how they apply to common job-site situations. So, for example, a roofing subcontractor should: 

• Make safety certification an employment requirement, including OSHA-10 for laborers and OSHA-30 for foreman and supervisors 
• Require comprehensive training in company safety policies, including fall protection training that meets OSHA standards, for on-boarding new hires 
• Conduct job-specific safety training for each project with attention to the site’s unique fall hazards 
• Have morning toolbox talks on relevant safety topics, including demonstrations of relevant job site fall protection equipment 
• Hold safety discussions at daily job meetings that identify particular fall hazards for the day’s work 
• Make sure safety training includes assessment, that is a way to measure participants’ understanding, such as by requiring trainees to demonstrate using fall protection equipment properly 

2. Monitoring – A company must also perform daily or near-daily job site supervision and inspection to identify safety hazards and ensure workers comply with company safety policies. For the roofing subcontractor, advance measures include  

• Direct supervisors and foremen to observe project activity regularly with attention to safety compliance, including following fall protection standards 
• Send a safety or project manager to the job site to conduct unannounced safety inspections 
• Hire a third-party safety consultant specializing in fall protection compliance to perform a safety audit or mock OSHA inspection 

4. Enforcement – Meeting the final element means having an actual, progressive, and consistent enforcement program for safety policies. In an “actual” program, the employer enforces safety rules and disciplines violators, unlike policies that exist only on paper or have no teeth. A safety policy should also include progressive disciplinary measures with harsher consequences for repeated offenses or more serious violations. Finally, a program must have consistent enforcement. The same consequences must apply for similar violations for any employee disciplined—whether a newly hired laborer or the company’s top project manager. Here are ways to execute these guidelines: 

• Record all safety policy infractions and the consequences to the employee 
• Position the project so that it can succeed even if the company has to subject its best worker on the job to discipline 

In carrying out these measures, contractors should also keep in mind one essential guideline—document everything! As the popular adage goes, “In OSHA’s mind, if it’s not documented, it didn’t happen!” To help preserve the record for a successful UEM Defense, contractors should create and update consistently throughout every project the following documents: job safety plan, sign-in sheets for safety trainings and job site safety meetings, daily logs with notations regarding safety issues (including any informal safety-related communications), and correspondence regarding any disciplinary action for safety rules violations. As much as possible, such documentation should cover all of the above types of evidence.  

Drawing on the above examples, a contractor can present sufficient evidence to support all four elements. Once it does, OSHA bears the burden to refute that evidence. If OSHA cannot successfully do so, the contractor should prevail. 

Conclusion 

Contractors should implement the above policies, programs, and practices to ensure they can deploy the UEM Defense when confronting an OSHA citation and fine resulting from an employee’s rogue conduct. These measures also promote overall job site safety for all workers. 

Even with these measures, the UEM Defense’s protection is not guaranteed. No two OSHA citation cases involve identical circumstances, and asserting the defense requires knowing both the underlying facts and how they fit with the defense’s legal requirements. Contractors facing actual OSHA citations and fines should consult with legal counsel well-versed in the UEM Defense and OSHA citation cases. 

Jonathan Landesman is Co-Chair of Cohen Seglias’s Labor & Employment Group, and he has represented employers in OSHA matters for 20 years. He can be reached at jlandesman@cohenseglias.com or 267.238.4726. 

Michael Metz-Topodas is an associate at Cohen Seglias, where he focuses his practice on construction law and construction litigation, including counseling clients on OSHA compliance and workplace safety. He can be reached at mmt@cohenseglias.com or 267.238.4755. 

Christopher W. Sexton is an associate in the Construction Group of Cohen Seglias. He can be reached at csexton@cohenseglias.com or 267.238.4710