Defending OSHA Citations – the Unpreventable Employee Misconduct Defense

In Construction in the Courts, Documentation, Insurance, Legally Speaking, Outlook & Trends, Risk Management
July 27, 2021
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By Ben Lowenthal, Hendrick Phillips Salzman & Siegel, P.C

With the anticipated enhanced enforcement efforts by the Occupational Safety and Health Administration (“OSHA”) under the Biden Administration, subcontractors can expect a greater number of worksite inspections and, inevitably, OSHA citations. Subcontractors should always work to identify and eliminate safety hazards on jobsites. However, there are other proactive steps subcontractors can take to be in the best position to successfully defend against an OSHA citation. These steps include establishing, implementing, and enforcing a worksite safety program. As long as a subcontractor takes these steps, one valuable defense available is the unpreventable employee misconduct defense.

One big issue that employers, especially subcontractors, express about the Occupational Safety and Health Act (“OSH Act”) is that it can make them responsible for the stupid and dangerous acts of their employees. Fortunately, OSHA, the Occupational Safety and Health Review Commission, and courts have recognized that employers should not be responsible for all forms of employee misconduct. This is where the unpreventable employee misconduct defense comes in. Employers are responsible for the safety and health conditions of which they have knowledge. This includes a duty to anticipate hazards with reasonable diligence. However, “[a]n isolated brief violation of [an OSHA standard] by an employee which is unknown to the employer and is contrary to both the employer’s instructions and a company work rule which the employer has uniformly enforced does not necessarily constitute a violation of [the OSH Act] by the employer.” Standard Glass Co., Inc., 1 OSAHRC 594 (O.S.H.R.C. 1972). The key question for the unpreventable employee misconduct defense is whether the employer knew of the violating hazard and could have taken steps to prevent the violating hazard.

The unpreventable employee misconduct defense is an affirmative defense that a subcontractor must raise in the notice of contest or answer following a citation and notice of penalty. To establish the unpreventable employee misconduct defense, an employer must have implemented an effective safety program designed to ensure that its employees, including supervisors, have been thoroughly trained. To successfully raise the defense, an employer must demonstrate that it has:

established work rules designed to prevent the violation;
adequately communicated these rules to its employees;
taken steps to discover violations; and
effectively enforced work rules when violations have been discovered. See Jensen Constr. Co., 7 O.S.H. Cas. (BNA) ¶ 1477 (O.S.H.R.C. June 29, 1979).

The first element of the defense is that the employer must have established a “work rule” to prevent the unsafe condition from occurring. The defense does not require that the work rule be in writing, but is almost impossible to prevail without a written safety rule in place. The second element of the defense is that the work rule must have been effectively communicated to the employees in general and to the offending employee in particular. Offending employees often conveniently forget that the employer ever communicated with them about a safety rule. To avoid this risk, an employee should carefully document all safety training sessions, identifying the topics covered and listing the names of the employees who attended. The third element of the defense is that the employer must prove that it took steps to discover incidents of noncompliance. If an employer has a safety rule that is violated on a regular basis, the employer will not be able to establish the defense. The final element of the defense is that the employer must adequately enforce the safety rules. The employer must prove that it has a disciplinary system in place and has actually administered the discipline outlined in its safety program. Repeated violations of safety rules will establish ineffective enforcement and the employer will lose out on the defense. This is why it is so important that subcontractors take the proactive steps of establishing, implementing, and enforcing a worksite safety program.

At the end of the day, subcontractors cannot prevent all worksite safety issues, especially when employees independently take stupid and dangerous actions. However, there are things that subcontractors can do to be in the best place to successfully defend against an OSHA citation with the unpreventable employee misconduct defense. Subcontractors should have written safety rules, train employees with short toolbox meetings with an attendance sheet, use a progressive discipline system for safety violation and keep written records of all violations, and require supervisors to perform routine safety checks with a simple written form to record the routine safety checks. The more written documentation, the better.

In light of the anticipated increase in OSHA inspections and citations, subcontractors should be prudent to take the steps listed above. In doing so, subcontractors will potentially have a valuable defense available in the event of an OSHA citation.

About the Author

Benjamin S. Lowenthal is an associate with Atlanta-based construction law firm Hendrick, Phillips, Salzman & Siegel and is a licensed lawyer in the states of Georgia and New York. Ben’s practice includes labor & employment matters within the construction industry. Ben received his undergraduate B.S. from the University of Georgia and his J.D. and LL.M. in Environmental Law from the Elisabeth Haub School of Law at Pace University. For more information, contact the author at (404) 522-1410, bsl@hpsslaw.com or visit www.hpsslaw.com.