The unpreventable employee misconduct defense works. I've used it twice in the past 10 years to get OSHA citations dismissed. Last week, I described the first case. Now I'll describe the second.

The Second Incident

The second case took place back in the late1990's. An OSHA inspector spotted one of our employees using an electrical tool on temporary wiring without a ground fault circuit interrupter. He issued two citations, one for failure to train our employees to recognize electrical hazards, and one for not using ground fault circuit interrupters, our chosen method of assured grounding.

We requested an informal conference and contested the citations. A hearing was scheduled. In preparation, we organized a presentation with documentation to prove that:

1. We have a safety program covering the areas in question;
2. We communicated that program to our employees via:
   1. Weekly training programs (we even had signed rosters to prove attendance);
   2. Safety memos;
   3. Paycheck stuffers.
3. We took reasonable steps to discover violations of our program; and
4. We consistently took disciplinary action against employees discovered to be in violation.

The hearing officer was persuaded that we did indeed have a safety program and actively enforced it. The violations we were cited for had occurred in an area that the supervisor couldn't immediately view. So the hearing examiner determined that OSHA hadn't given us enough of an opportunity to enforce our program in the case. So both citations were dismissed with no penalty.

Drawing Some Lessons from the Experience

OSHA officials are intelligent people. They realize that problems can develop with even the best safety programs; they also recognize that mistakes by both employees and supervisors can't be totally prevented. That's why the unpreventable employee misconduct defense was created to begin with.

I can tell you from experience that the defense actually works. But don't even think about using it unless you have a comprehensive safety program that you communicate to employees and consistently enforce. Just as importantly, make sure you have the documentation to prove these things. Organize the documents to demonstrate that you meet each part of the defense.

The importance of good documentation cannot be overstated.

Conclusion

If you follow this advice, you should be successful in defending yourself against OSHA citations caused by misconduct on the part of supervisors and employees. And you may also begin to realize something important: OSHA can be your partner in safety rather than your adversary.

THE CANADIAN PERSPECTIVE

By Glenn Demby

I explained how the unpreventable employee misconduct defence would apply in Canada in my original story. See, http://www.safetyxchange.org/article.php?id=498&cha_id=1. But in case you missed it, or simply forgot it and don't want to have to look it up, here it is again.

Strictly speaking, there is no "unpreventable employee misconduct" defence in Canada. However, the same principles have a direct bearing on whether an employer exercised due diligence to prevent a violation.

Let me explain. If what happened at Gary's company had taken place in Canada, the employer could avoid liability by proving that it showed due diligence, i.e., took all reasonable steps to comply with the law. To the extent that the violation was the product of employee or supervisor misconduct, the employer could establish due diligence essentially by proving the same four elements of the misconduct defence that Gary describes, towit:

• The company had a safety program;
• It effectively communicated the program to workers;
• It monitored for violations; and
• It actively enforced the program and imposed discipline on those who committed infractions.

There have, in fact, been several cases in Canada involving the application of these principles in the context of an employer's due diligence defence. See, for example, R. v. Moran Mining & Tunnelling, [2004] O.J. No. 5592 (Fall is caused by worker's deliberate decision not to tie off to save time but employer is still liable because it knew that workers were violating the company policy but failed to discipline them.)

In addition, in Canada, workers and supervisors 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.In the U.S., such safety infractions must be attributed to the company.

SAFETY FACT OF THE DAY

Lame tune from the 1980s dominates the Google "safety" airwaves

By Barbara Manning Grimm

The most common Google search that includes the word "safety" is "the Safety Dance," the 1983 pop song by the one hit wonder group, Men Without Hats. What does it all mean? I haven’t the foggiest idea. But I kinda’ like the song.

Here are the lyrics:

S-s-s-s A-a-a-a F-f-f-f E-e-e-e T-t-t-t Y-y-y-y
Safe, dance!

[Spoken]
We can dance if we want to
We can leave your friends behind
'Cause your friends don't dance and if they don't dance
Well they're no friends of mine
I say, we can go where we want to
A place where they will never find
And we can act like we come from out of this world
Leave the real one far behind
And we can dance

[Sung]
We can dance if we want to
We can leave your friends behind
'Cause your friends don't dance and if they don't dance
Well they're no friends of mine
I say, we can go where we want to
A place where they will never find
And we can act like we come from out of this world
Leave the real one far behind
And we can dance
Dance!

We can go when we want to
The night is young and so am I
And we can dress real neat from our hats to our feet
And surprise 'em with the victory cry
Say, we can act if we want to
If we don't nobody will
And you can act real rude and totally removed
And I can act like an imbecile

[Refrain]
I say, we can dance, we can dance
Everything out of control
We can dance, we can dance
We're doing it from wall to wall
We can dance, we can dance
Everybody look at your hands
We can dance, we can dance
Everybody takin' the cha-a-a-ance

Safety dance
Is it safe to dance
Is it safe to dance

S-s-s-s A-a-a-a F-f-f-f E-e-e-e T-t-t-t Y-y-y-y
Safe, dance!

We can dance if we want to
We've got all your life and mine
As long as we abuse it, never gonna lose it
Everything'll work out right
I say, we can dance if we want to
We can leave your friends behind
'Cause your friends don't dance and if they don't dance
Well they're no friends of mine

[Refrain]

Is it safe to dance, oh is it safe to dance [6x]
Is it safe to dance

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