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Can You Claim Employee Misconduct? Take the Legal Test

Can You Claim Employee Misconduct? Take the Legal Test

We've seen the employee misconduct defense legitimately used to get businesses out of hot water – and we've seen it backfire.

It's a Tuesday morning, and you're heading into work. A blue moon accents the twilight of the early-morning sky. The day's to-do list greets you on your computer screen. Office phone messages checked. To-do list modified. Calendar verified. Email next. Making progress now.

At mid-morning, your cell phone rings. You know the number; it's one of the supervisors. You pick up the phone and hear: "I don't know how to tell you this, boss, but there's been an accident. On the third shift, Joe fell off the Building 10 roof about 15 feet to the lower level. It looks like he has multiple fractures and he's really hurt. It doesn't look good."

The supervisor informs you that he has told that employee to stay at least six feet back from the roof edge on at least one other occasion and apparently this time it caught up with him. He currently is under medical care at the hospital. Another employee went with him to the hospital, and the supervisor notified his wife and family. The facility's emergency response team did a great job and arrived on scene and stabilized Joe within two minutes after he fell.

Emergency response. Check. Medical response. Check. Family notified. Check. The team is doing its job. 

Your questions shift as your thinking shifts. You're thinking about OSHA. You're thinking about lawyers.

The supervisor tells you: "Yes, sir, he went through all the training. No, I didn't put anything in writing the first time I warned him. No, he's never had any disciplinary action. Yes, we have a few witnesses. One of them told me that she knew something would happen to Joe; it was just a matter of time. I'm not sure exactly what she meant. We are doing a thorough investigation now and will keep you updated. Yes, the safety department is included. Nobody's called legal yet, but that's my next call, and then HR. We're pulling together a conference call ASAP."

Joe clearly violated the company's fall prevention policy after he had been trained on it and had been warned on another occasion. How will OSHA cite the facility? You're going to find out, because an employee already filed a complaint and OSHA is on the way to do an on-site investigation. 

By early afternoon, the OSHA inspection is underway while you're coordinating your response to employees, staying in touch with the family and talking the situation through. It's looking like the fall happened because Joe made the decision to disobey his supervisor and violate company policy. You and your company did everything you could.

Or did you?

The Employee Misconduct Defense

When OSHA cites for a workplace injury, employers often claim employee misconduct. This seems to be the comfort zone companies rely on as a matter of course. Unlike the many grounds for citation, employee misconduct largely is a legal issue. It isn't necessarily a denial; it's an affirmative defense. You are, in essence, pointing the finger at the employee as the sole responsible party for the mishap and any of the resulting consequences. 

In our experience, we have seen the employee misconduct defense legitimately used to get businesses out of hot water, and we have seen it backfire. How is your knowledge of the law, and can you help your organization not only reduce the likelihood of injurious events, but also position itself to assert employee misconduct in the event someone strays from the rules?

If the worst happened – and in high-hazard industries it often does – how strong would your employee misconduct claim be? Would it survive the legal test? 

To get an idea of where you might land, try this quiz:

1. Our internal, safety-related policies (e.g., employee manuals, safety plans, medical intervention plans) are:

☐ Consistent throughout the company.
☐ Standard for my industry.
☐ Tailored to each work site.
☐ All of the above.

2. To establish this defense, the best way to conduct safety training is to:

☐ Have regular meetings with sign-in sheets.
☐ Have many impromptu safety inspections on an informal basis.
☐ Have peers check each other's practices.
☐ Assign the responsibility to a safety consultant or other third party.

3. The best way to develop a culture of corporate safety is through:

☐ A "zero-tolerance" policy for accidents and illnesses.
☐ Frequent, documented and inclusive communication with employees.
☐ Incentives to reduce illnesses and injuries.
☐ All of the above.

4. To assert this defense, I need to prove that my business has:

☐ Comprehensive safety plans and procedures.
☐ A competent safety professional.
☐ Taken measures to discover hazards and discipline violators.
☐ Few or no violations in recent prior history.

5. The employee misconduct defense applies primarily to:

☐ Non-supervisory employees.
☐ Supervisors and officers.
☐ Independent contractors.
☐ All of the above.

The questions above are not all-encompassing, but they can offer a glimpse into the strength of your potential employee misconduct claim. The answers may not be obvious, depending on your perspective. Best practices as a business owner or a manager don't necessarily train you to think like a lawyer, a regulator or a safety professional. 

Think Like An Attorney, OSHA Investigator, Safety Professional

We all perceive issues from where we stand. Your ability to understand how your company could be perceived by OSHA or in a court of law could be critical one day.

This pop quiz requires you to adopt three perspectives: that of a lawyer, regulator and safety professional. So it is important to understand who within your organization is offering the answers and then be able to reconcile the results. 

Be ready before your business gets put to the test. In a real test, there's no cramming.

A business attorney (Malveaux) is trained to prepare for the worst. He will anticipate the elements of the defense you may need to prove, and put those pieces in place before disaster hits. A labor commissioner (Malveaux in his previous role) will anticipate how regulators will react behind closed doors when debating strategy in citing an employer. A safety professional (Rodriguez) will bring an appreciation for the complex and difficult task of managing many moving parts, disciplines and programs, often over multiple domestic/global work sites and employers within a well-defined safety management system.

So now you know the perspectives. Are you ready to see how well you did on the quiz?

Question 1: Your internal safety-related policies (e.g., employee manuals, safety plans and medical intervention plans) do not necessarily have to fill thick binders. But you do need to tailor them specifically to each work site. Usually, each work site has its own unique layout and array of potential hazards. In our experience, using the same internal guiding documents across work sites and failing to update them when new hazards arise can invite trouble when OSHA comes calling. For employers with multiple work sites, site-specific plans are key. Correct answer: (c).

Question 2: Rodriguez: I have seen how unannounced OSHA inspections can cause disruption in an organization and how an OSHA citation only adds to the mayhem. But if you contest a citation and assert employee misconduct, you unequivocally will need to prove that you did your diligence. This means documentation. Stitching together a case with vague recollections of multiple impromptu inspections is a safety professional's and a lawyer's nightmare. 

So how would you make your case? You would use DOCUMENTED EVIDENCE that you consistently trained employees at orientation, in "toolbox" meetings and on other occasions. Pass around a sign-up sheet, attach a summary of the training provided, and keep it in a readily assessable, well-organized file. These documents will boost the credibility of your witnesses and ultimately of your program. Peer reviews and third-party safety experts can enhance a culture of workplace safety, but they won't eliminate your responsibility to ensure and document that you did your own diligence. Correct answer: (a).

Question 3:  We all want to get to zero accidents and illnesses, but ... Malveaux: I have seen how some regulators react to words like "zero." Some (though not all) see red, and charge like a bull toward a matador. Why? Because OSHA is breeding suspicion that "zero-tolerance" programs – even those of well-meaning employers – only incentivize employees to underreport recordable injuries. When your employees do closed-door interviews with OSHA inspectors, you want them to report that managers actively seek and reward their input. Get to "zero" by incentivizing employees to report events like "near misses" and suggest safer work practices. Correct answer: (b).

Question 4: It's easy to confuse the elements of a violation with those of an affirmative defense. Great safety management systems and professionals are effective at averting a citation in the first place. A past history of safety can help reduce penalties. But when businesses assert employee misconduct, they often fail to demonstrate steps they took to discover violations and discipline careless employees. Starting the discipline after the inspection won't impress enforcers much. Documented enforcement of your safety management system is critical to your defense. Malveaux: I have seen the eye rolls when employers "get religion" once OSHA shows up. The best laid plans mean little when your business can't prove it means business when it comes to safety. Correct answer: (c).

Question 5: The employee misconduct defense does not apply to managers, supervisors or officers. It applies only to employees without managerial authority. The "independent contractor" answer is a curve ball because independent contractors are not employees. But it is worth mentioning here that sometimes you can be cited for the acts or omissions of independent contractors, such as when you provide that independent contractor day-to-day supervision. Also, be careful not to misclassify employees as contractors. Correct answer: (a).

Get Ready Now

Be ready before your business gets put to the test. And in a real test, you can't cram. So do your diligence now. Conduct a thorough and critical review of your safety management system, including your internal policies and procedures, from a legal standpoint, an enforcement standpoint and a safety compliance standpoint. Protect your business by documenting your compliance (training, corrective measures, etc.).

And of course, preventing hazards is always the first and best way to go.

Courtney Malveaux is an OSHA and regulatory attorney with ThompsonMcMullan PC in Richmond, Va. In addition to his legal practice, Malveaux represents industrial employers on the Virginia Safety and Health Codes Board. Malveaux can be reached at (804) 698-6242 or at [email protected]

J.A. Rodriguez Jr. is CEO of Make My Day Strategies LLC and a Fortune 100 global senior manager. He is author of the book "Not Intuitively Obvious – Transition to the Professional Work Environment" and an expert analyst and media consultant on today's toughest business issues. He can be reached at [email protected]

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