Safety rules help only if they're followed. No matter what you do, some workers are bound to ignore the rules and do what they want. Luckily, OSHA recognizes this and lets companies use the defense of unpreventable employee misconduct to avoid penalties for OSHA violations. The problem is that the defense is very hard to prove.

The 4 Elements of the Defense

To prove unpreventable employee misconduct, you must show that your company:

1. Has established work rules to prevent safety violations;
2. Adequately informed employees of the rules;
3. Diligently tried to discover violations; and
4. Effectively enforced the rules upon discovering a violation.

Here are two recent cases showing how courts apply this test.

EMPLOYER WINS

FACTS: A cable splicer apprentice at a Kansas energy company was electrocuted after getting too close to an electrical transformer. He wasn't wearing appropriate protective equipment (rubber gloves). The foreman witnessed the incident. OSHA inspected the accident and issued a serious citation for violation of OSHA standard 1910.269(l)(2), which bans workers from getting closer than a particular "minimum approach distance" (here, just over two feet) to exposed energized parts without proper protection. The energy company argued that the apprentice and foreman didn't comply with safety rules, which the company consistently and effectively communicated and enforced.

DECISION: The court said the employer wasn't responsible for the violation because it couldn't have prevented the apprentice and foreman from disobeying the rules. It cited four factors:

Work Rules Were in Place. The company maintained a written safety manual which it provided to each worker upon hiring and each time it was revised. The manual addressed minimum approach distances and appropriate PPE. OSHA admitted that the manual was effective and clear.

Work Rules Were Communicated. The company showed that it trained the apprentice and foreman on safety rules and protective procedures. It gave them each a copy of the safety manual, furnished apprenticeship training, conducted monthly meetings and had at least 22 other training and supervisory sessions, each of which was documented.

Compliance Was Monitored. The company's safety manual required periodic monitoring. Management visited the jobsite almost daily and performed weekly crew audits. Company managers also conducted monthly employee safety assessments.

Rules Were Enforced. The company had a progressive discipline program that included written warnings, suspensions of up to two weeks, demotion and termination. In fact, it had documented its discipline of more than 29 employees for safety infractions over the previous 12 years.

Sec'y of Labor v. Westar Energy, OSHRC Docket No. 03-0752

EMPLOYER LOSES

FACTS: An ironworker was hospitalized for several weeks for head, face and arm injuries from a 20-foot fall to a concrete floor. The ironworker was helping his foreman move a large steel tube on the roof of a new school building project in Ohio on a cold, rainy New Year's eve. Both were eager to clean up and go home. The ironworker wasn't wearing fall protection. OSHA issued a serious citation for violation of standard 1910.760(a)(1), which requires guard rails, safety nets, personal fall arrest systems, positioning device systems or fall restraint systems for steel erection activities more than 15 feet high. The employer argued that the ironworker and foreman didn't follow company safety rules.

DECISION: The court rejected the defense and found the employer responsible for the violation. It made the following points:

Rules Were Inadequate. The employer had a written site-specific fall protection plan at its construction trailer that all workers had to review. But it only required fall protection "where reasonable." The foreman said the ironworker didn't use fall protection "because we were cleaning up and moving that piece of steel." The employer tried to rely on its "unwritten rule" of 100% fall protection over six feet, but the court didn't buy it. The rule should have been written and the employer should have ensured all workers understood the obligation to wear fall protection at all times, even when just cleaning up.

Safety Program Was Inadequate. The company proved that it trained the ironworker and foreman on fall protection using videos, testing, demonstrations, safety manuals and equipment, OSHA classes and weekly safety meetings. But the employer's president admitted the safety program was "not up to snuff" and that supervisors and workers "weren't buying into it."

Safety Wasn't Monitored. The lack of fall protection was obvious and could have been observed by a diligent supervisor. The foreman, who should have known better, told the ironworker to move the steel tube even though he wasn't wearing fall protection. The foreman himself didn't use fall protection.

Rules Weren't Enforced. Although the disciplinary program included verbal and written warnings, days off and termination, it wasn't in writing and wasn't always enforced. Some workers didn't even know about it. The safety officer said he observed workers without fall protection but didn't discipline them. The company had no documentation of written reprimands and couldn't show that any worker had ever gotten suspended or fired for safety violations. If it had effectively enforced its work rules, the company might have avoided the violation.

Sec'y of Labor v. Structural Building Systems, Inc., OSHRC Docket No. 03-0757

THE CANADIAN PERSPECTIVE

Strictly speaking, there is no "unpreventable employee misconduct" defence in Canada. However, the principles underlying the defence are relevant to the determination of whether an employer exercised due diligence to prevent a violation.

To the extent that employers do a good job of establishing, communicating and enforcing safety policies, they're unlikely to be held liable for a deliberate infraction committed by a rogue employee. On the other hand, the mere existence of safety rules won't help an employer's due diligence defence if enforcement is lax.

In Canada, workers can also be held liable for OHS violations. Thus, unlike their U.S. counterparts, Canadian prosecutors have the option of laying charges against the worker and not the employer for violations brought about solely by a worker's misconduct.

THIS DATE IN HISTORY

Edward Douglass White: Supreme Court Justice who wrote the majority opinion upholding law establishing eight-hour workday for railroad workers

March 19, 1917

Few issues were more central to the organized labor movement in the late 19th and early 20th centuries than the eight-hour workday. In 1916, after decades of struggle and faced with the possibility of a nationwide railway strike, the U.S. Congress finally enacted a law called the Adamson Act establishing an eight-hour workday, with additional pay for overtime, for railroad workers.

The railroads defied the law and wasted no time initiating a lawsuit to test its constitutionality. In response, the unions once more made preparations to strike. President Woodrow Wilson exercised the federal government's emergency powers to take over operation of the railways.

On this date in 1917, against this backdrop of tension and with the country less than a month from entry into the First World War, the U.S. Supreme Court decided the issue once and for all.

In a 5 to 4 decision, the Court ruled that the Adamson Act was constitutional. Congress had the power to regulate hours of work and wages in private companies that conduct interstate commerce, Justice Edward White wrote for the majority. The implications of this decision would be enormous not just for railroads but for the future of all labor regulation in the U.S [Wilson v. New, 243 U.S. 332 (1917)].

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