An employee is seriously injured and OSHA is investigating. The employer is not worried, however, because the employee broke a clear, written safety rule that faithfully reflected an OSHA standard and in which the employee was trained. The safety director even has a training session sign-in sheet with the employee's signature and an attached outline of the curriculum.
If this is all the evidence the employer has, can the employer still receive a citation? The answer is "yes." If the employer has no evidence that the safety rule or its safety rules in general have been enforced, then a citation may well be issued by OSHA and upheld by the independent three-member Occupational Safety and Health Review Commission.
The Commission Demands Enforcement
Since at least 1976, the Commission has held that an employer must make "a diligent effort to discourage, by discipline if necessary, violations of safety rules by employees." It agreed with OSHA that there must be a "threat of discipline ... up to and including discharge." Thus today, the defense of unpreventable employee misconduct is often said to have four elements of proof: that the employer (1) has established work rules designed to prevent the violations; (2) has adequately communicated the rules to its employee; (3) has taken steps to discover violations; and (4) has effectively enforced the rules when violations are discovered.
The defense has generally proven difficult to establish, although the Commission has been more accepting of the defense lately. In one 1996 case, a dissenting Commissioner wrote that the near-universal inability of employers to prove the defense to the Commission's satisfaction reminded her "of the treatment that Peanuts character Charlie Brown receives from his sometime-friend Lucy when he attempts to place-kick a football." In that case, the Commission appeared to raise the bar on the defense again. It suggested without expressly stating that, except in the "rare case" in which oral warnings alone have proven effective, it will expect that discipline will progress with each infraction.
The Commission's administrative law judges have picked up on this suggestion. One judge wrote that an employer "should have provided for progressive discipline with increasingly harsh punishment." Another judge recently noted, "Evidence of a variety of disciplinary measures, which progress to higher levels of punishment ... tends to demonstrate that an effective disciplinary system is in place. On the other hand, evidence showing a failure to progress to higher levels of discipline may indicate ineffective enforcement."
The Troublesome Fourth Element
This article focuses on the defense's fourth element: the enforcement of safety rules through discipline. There are three common reasons why employers frequently fail to establish it.
The first reason is that employers misunderstand the term "enforcement." Many claim, for example, that whenever they see an employee without a tied-off safety harness, they immediately remind the employee to tie off. But OSHA does not view this as discipline at all; it views this as mere reiteration of the rule. To be enforcement, the reiteration must be accompanied by something forceful for example, at least an oral warning that the employee has broken a safety rule. It would also be wise to accompany the warning with a threat of more serious consequences if the violation should recur.
The second reason why employers are often unable to prove the defense's enforcement element is that discipline does not progress if a violation recurs. For example, suppose that within a week's time, the above employee again fails to tie-off his safety harness. Given the frequency of violations and the ineffectiveness of the first warning, a second oral warning may well be seen as insufficient. As noted above, the Commission will likely expect the employer to ratchet up the discipline to a higher level to at least a written warning.
But here is the rub: Often, the employer has no way of knowing of the previous infraction and thus does not know that the discipline must be ratcheted up. In my experience, many employers do not systematically track previous infractions. Many rely on only a supervisor's memory of a previous infraction. But memory is fallible, and unrecorded incidents can be forgotten. Even if the supervisor does keep track of disciplinary incidents in day-timers, it takes effort and commitment to flip back through the many casual, handwritten entries there to see whether an employee previously broke a rule.
In sum, employers need a systematic way of recording previous infractions so that discipline progresses when a later infraction occurs. This means somewhat ironically that even "oral" warnings should be documented. It also suggests that employers should consider doing away with oral warnings altogether, and issue an employee two written warnings (instead of an oral warning and then a written one) within a set time period before imposing harsher discipline.
If You Can't Retrieve, It Won't Relieve
The third reason why employers are often unable to prove that work rules are enforced by progressive discipline is inability to retrieve disciplinary records. Such records can be crucial. In Rawson Contractors Inc., 20 BNA OSHC 1078 (OSHRC 2003), the company's president testified that employees had been disciplined and even "written up," but his inability to provide corroboration was called a "void in the evidence" and the citation was affirmed.
By contrast, in Stahl Roofing Inc., 19 BNA OSHC 2179 (OSHRC 2003), the employer prevailed because it had the documentation at hand. It was able to show that two employees who violated a safety rule were warned in writing and were docked pay, that one of them was fired when a second infraction occurred and that another was given a written reprimand and fined more than the others because he had a previous warning.
In this attorney's experience, even employers who do record discipline often fail to place the records where they can feasibly be retrieved when they or their lawyers need them to defend against OSHA citations. If disciplinary records are kept only in an employee's personnel file, then the employer or his attorney must dig through hundreds or perhaps thousands of individual files to defend against an OSHA charge.
A better way to avoid the problem may be maintaining a central file of employee violations and discipline, starting from oral warnings. Such a central file especially if it is computerized would eliminate the burden of going through every employee's personnel record or other scattered records to prove that enforcement occurred. During an OSHA investigation of a fatality in which I was involved, I showed the compliance officer a project-specific disciplinary log that my client, a large construction company, had been maintaining at my suggestion. The log made it easy for managers and me to flip back through previous incidents and determine if the same employee had previously been warned or otherwise disciplined. The OSHA inspector was visibly impressed by the log and by the back-up documentation of each disciplinary incident. They helped greatly to avoid what could have been a troublesome and expensive citation.
Arthur G. Sapper is a partner in the OSHA Practice Group of McDermott Will & Emery LLP, a former adjunct professor of OSHA law and the former deputy general counsel of the Occupational Safety and Health Review Commission. He is a contributing editor to Occupational Hazards. For more information about the OSHA Group at McDermott Will & Emery LLP, visit their Web site.