Howard Mavity probably has tried more worker death cases than any other U.S. attorney. “I’ve tried 460-something death cases,” he notes, “and it makes you think about how they could be prevented.”
According to Mavity, as many as 70 percent of the death cases he’s represented involved “skilled, experienced employees making errors. Anecdotally, these were ‘good people,’ with families, who were considered reliable and trusted by their coworkers. But they got nonchalant – casual –about safety.”
Mavity, a partner in the Atlanta law office of Fisher & Phillips LLC, suggests that one of the biggest mistakes his clients can make is to allow repetition – a same thing/different day attitude – to permeate their safety culture and workplace. “They continually should be introducing new methods to remind employees about safety,” he suggests.
Leading vs. Lagging Indicators
Companies that rely on canned, off-the-shelf “tool box talks” risk making their pre-shift meetings irrelevant or boring for workers, he notes. Such talks need to be job- and site-specific, Mavity suggests, especially for employers like construction contractors, where weather conditions, a continuously evolving workspace and a fluctuating number of workers and trades on the site greatly can impact safety day-to-day. Mavity considers job- and site-specific training programs and pre-shift meetings a leading indicator of companies that are world-class.
However, he says, his clients, who are some of the largest manufacturing and construction companies in the country, remain focused on injury and illness rates. While most of them agree that lagging indictors, such as injury and illness rates, are not the best measure of safety culture, no one can seem to find a consistent and adequate replacement to measure safety performance.
“People are addicted to these numbers,” says Mavity. “I’m an economics major and I know that if you torture a number enough and it can say anything.”
He suggests employers examine true employee involvement in safety as a leading indictor. We’re not talking about participating on a safety committee, says Mavity, “because everyone has a safety committee – but employees who actually lead toolbox talks and make suggestions to improve safety in the workplace. Formally evaluating management on safety performance – and tying it to compensation – also is a leading indicator, says Mavity.
Another leading indicator is good housekeeping. Mavity says that in a high percentage of the death cases he’s taken to trial, and for companies that have received willful OSHA violations or have been placed in the Severe Violator Program, housekeeping – or a lack of it – is an obvious issue. “If it’s a manufacturing facility, you walk in there and it’s just messy,” says Mavity. “Broken tools, broken windows, dust buildup on machinery and windowsills. If it’s a construction site, you see materials piled up, cords snaking around, trip and fall hazards everywhere. Good housekeeping is one of the best predictors of safety, and is a leading indictor.”
While everyone agrees that tracking near misses is a leading indicator of world-class safety, “There is a lack of consistent definition for how to define a near miss,” says Mavity, adding that the person who can create a universally accepted definition of a near miss “would be doing everyone a great service.”
Mavity believes that discipline for safety violations is another leading indicator, one that is ignored by many employers. “Most employers don’t discipline employees for safety violations,” he says. “If they do, it’s because of an injury. It’s not punishment – although OSHA doesn’t see it that way – but because something happened that revealed violations of safety policies.”
OSHA and Whistleblower Protections
As the co-chair of Fisher & Phillips’ Workplace Safety and Catastrophe Management Practice Group, Mavity often works with companies facing citations from OSHA or the Department of Labor’s Wage and Hour Division. He’s represented companies that are being dinged by OSHA for firing employees who have been injured on the job, when in the employees actually were fired for committing unsafe acts. From OSHA’s perspective, the employee got hurt and was fired for reporting the injury; a big no-no. Mavity says that in reality, the employee reported an injury, the employer investigated and conducted a root cause analysis of the incident, and determined that the employee violated corporate safety policies.
According to Mavity, OSHA will seek to determine if it appears that injured employees are disciplined more frequently or severely than uninjured employees who also acted in an unsafe manner. OSHA will consider whether an employer actively monitors the workplace for compliance with the work rules “in the absence of an injury.” The agency also will take a hard line when it comes to “vague rules, such as a requirement that employees maintain situational awareness or work carefully.”
This increased scrutiny by OSHA makes it even more important for companies to focus on leading indicators and adopt a safety strategy that utilizes them.
Such a focus still might be a long way off. Mavity recently attended a meeting where nationally recognized executives, academics, association representatives and insurance professionals gathered to informally discuss overhauling workplace safety incentive programs, since OSHA has indicated such programs have the potential to discourage worker injury reporting, a activity that the agency considers “protected” under whistleblower laws. Many of those attending the meeting acknowledges they rely on lagging indicators, even though they know that leading indicators are a better barometer of safety culture.
Mavity conducted a survey of larger construction contractors that shows 60 percent of them still rely on injury and illness data. “They all believe in theory of using leading indicators, but we still rely on lagging indicators,” admits Mavity. “That has to change.”