Employers long have appreciated that it is not enough to train their workers in safety rules. The rules must be enforced and, as infractions recur, enforced more severely. Because the employer bears the burden of proving the defense of unpreventable employee misconduct, the company must usually have some way of documenting its safety enforcement.
As I noted in my January 2006 article in EHS Today, "The Oft-Missed Step: Documentation of Safety Discipline," employers also must be able to retrieve that documentation. The article recommended that employers avoid scattering their disciplinary records among personnel files and instead or, in addition, maintain "a central file of employee violations and discipline, starting from oral warnings." As the article states, "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."
Recent decisions show what can happen when the above principles are followed and what can happen when they are not.
In Stark Excavating, Inc. v. Perez, 811 F.3d 922 (7th Cir. 2016), the U.S. Court of Appeals for the Seventh Circuit rejected the company's unpreventable employee misconduct defense. The company had safety rules, had communicated them to its employees and had monitored the worksite for compliance. It even had prescribed a progressive "compliance mechanism" if violations were found; it would issue "tickets" to employees who broke safety rules. This technique, the court noted with evident favor, "would facilitate effective enforcement of the safety rules by allowing the tracking of violations by particular employees especially when working for different foremen."
The problem was that the policy of issuing such tickets "was routinely disregarded." Although the company had issued some tickets to employees, two supervisors testified that "they never issued any safety tickets and preferred to verbally correct employees." The court did not explain why this was insufficient but, as my 2006 article observed, "verbal corrections" often do not amount to an oral admonition, the first step in a progressive disciplinary program. Moreover, even if they do, the lack of documentation of strictly "verbal" corrections would make it very difficult to ensure that future discipline would progress. Moreover, the court noted, company supervisors had undermined safety enforcement from the start by providing each other advance warning by radio when the corporate safety director was in the area conducting safety audits.
By contrast, the Occupational Safety and Health Review Commission a few days later vacated a citation where the employer not only did things right but could prove that it had done things right. The employer even had the central log of disciplinary actions advocated by my 2006 article.
In S.J. Louis Constr. of Texas, 25 BNA OSHC 1892, 2016 CCH OSHD ¶ 33,503 (OSHRC 2016), the employer had a "disciplinary log" showing that over the two-year period predating the OSHA inspection, it had "warned and suspended employees on dozens of occasions for safety violations…" The commission noted that the employer's log "tracks who was disciplined, the type of discipline, and whether it was a first, second, or third infraction," and that "none of the employees had more than two safety-related infractions." Most importantly, the log also showed that discipline did, in fact, progress when an employee committed a second infraction.
The commission therefore vacated the citation.
Avoiding OSHA Discrimination Charges
My May 2013 EHS Today article (with William Friedman), "Whistleblower Complaints: Avoiding Discrimination Charges through Documentation," urged that to avoid expensive OSHA charges that one discriminated against an employee for making safety complaints, employers should "consistently" follow their progressive disciplinary program. The article warned, "OSHA will exploit any inconsistency to impugn your motives."
That is just what happened in Perez v. Clearwater Paper Corp., 25 BNA OSHC 1990 (D. Idaho 2016), where OSHA accused the company of firing an employee for making a complaint to OSHA. A federal district judge awarded the employee almost $235,000 in back pay, emotional distress damages and punitive damages.
The company had a union contract with a progressive disciplinary policy. It stated that discipline would become more intense as misbehaviors occurred, progressing from oral warning to written warning to final warning and then termination. The policy had a narrow exception permitting immediate firing for "gross misconduct" such as "insubordination," "theft" and "sabotage."
The problem was that the policy was not followed. Because the fired employee had never been the subject of any discipline or even negative evaluations before he was fired, the court reasoned that his supposed misconduct could not have amounted to "gross misconduct" and thus could not have been the real reason for his being fired. Other conduct to which the company pointed was similarly rejected, for they "had never been used to discipline employees in the past" and thus were a "pretext."
For example, the company claimed that the employee had been insubordinate. The court pointed to the company's inconsistency in administering its progressive disciplinary policy: "If insubordination is such a critical flaw that it justifies being fired on the spot, it stands to reason that [the employee] would have at least been disciplined or written up for past incidents of insubordination or disrespect for management. But that never happened."
As to the employee's supposedly "confrontational attitude and annoying self-righteousness," the court observed that "these are just the sort of entangled characteristics that progressive discipline was designed to unravel and straighten out. That [the company] did not subject [the employee] to progressive discipline signals that [the employee] was fired for some [other] reason…"
Finally, the court brushed aside the employer's claim that, even if its motive had been tainted by the employee's complaint to OSHA, it would have fired him for other conduct anyway. The court found that the company would "[a]t most … have run [the employee] through the progressive discipline system, but would not have fired him."
The lessons for employers should again be clear; to avoid OSHA citations, it is not enough to show that you trained employees in safety rules and monitored their work. You must show that the rules are enforced by discipline that progresses as infractions recur.
To show this, you must have documentation that is retrievable and shows that your program is carried out in practice. And to insulate yourself against both OSHA citations and OSHA discrimination charges, you must actually follow your progressive disciplinary system with consistency.
Arthur G. Sapper is senior counsel in the Workplace Safety and Health Practice Group at Ogletree, Deakins, Nash, Smoak & Stewart, P.C.'s Washington, D.C., office. He is a former deputy general counsel of the Occupational Safety and Health Review Commission and a former professor of OSHA law. He has participated in numerous investigations and cases involving OSHA discrimination and safety complaints, and can be reached at 202-263-0270 or [email protected]edeakins.com.