Page 38 - MetalForming November 2010

Doug Ehlke, a national board- certified civil trial lawyer, has for more than 30 years represented metalforming companies in OSHA litigation and in labor- union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and environ- mental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South Federal Way, WA 98003-3705 Phone: 253/839-5555
Fax: 253/874-5475 dehlke@ehlkelawoffices.com
OSHA, along with its state counter- parts, conduct random inspections of worksites and facilities to find your employees in violation of safety standards. They also typically investigate when a serious workplace injury or death occurs, or when an employee or former employee informs them of unsafe working conditions. During these inspections, the Compliance and Safety Health officers perform walka- rounds to find violations of federal OSHA workplace safety or health rules. These violations almost always result in proposed penalties.
While we encourage you to work with safety experts to develop a proper safety program that meets all of the requirements, it is not always 100 per- cent possible to predict when an employee might violate the rules. How- ever, with some prudent forethought and planning an isolated incident of employee misconduct may be defended.
Whenever a citation is issued, the employer may raise an affirmative defense of unpreventable employee mis- conduct. This affirmative defense basi- cally admits that the violation happened but contends the employer is innocent and without foreseeable knowledge or ability to prevent the employee from committing the short duration viola- tion. This defense, once proven of the related citation(s), triggers dismissal.
This defense is not available every time a company is cited or an employee makes a mistake. In many instances, the company has failed in at least one way to meet the prerequisites to claim employee misconduct. However, when a company has a good safety plan and a positive track record of enforcing its own policies, this defense can elimi-
nate the fines. In terms of percentages, most employers raising this defense lose their case because of safety program or employee discipline deficiencies.
There are four technical require- ments to using this defense:
1) The company must have a written safety program that conforms to the rules and industry standards—includ- ing the issuance of safety equipment.
2) The company must have effec- tive training/communication of the safety rules to all employees.
3) The company must prove that it takes steps to discover and correct vio- lation of its safety rules.
4) The safety program must be effec- tive, not only as it is written, but in practice (usually by showing evidence of past written discipline and a decent track record in regards to past violations).
Note that the first word of the defense is “unpreventable.” If the viola- tion was preventable, the defense is not available. When a supervisor or man- ager is aware that an employee is vio- lating a safety rule (without taking immediate action to correct the viola- tion), the company is deemed to have been able to prevent the misconduct.
Nationally, a recent OSHA case was successfully defended by showing that the employee committed unpreventable employee misconduct. In Secretary of Labor v. Paramount Advanced Wireless LLC, three employees and a foreman were working on a telephone pole. The company had a “100 percent tie-off rule” in compliance with OSHA stan- dards. Unfortunately, an employee fell from the tower to his death. The inves- tigation revealed the obvious fact that the employee was not tied off when he fell. The foreman had witnessed the
36 METALFORMING / NOVEMBER 2010
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YOU & THE LAW DOUGLAS B.M. EHLKE
When Your Employee Makes a Safety Rule Mistake