Element Four of the Unpreventable Employee Misconduct Defense: Enforcement of Work Rules Through Disciplinary Action When Violations are Discovered

In the final part of this four-part series, we examine the fourth element an employer must establish to successfully raise the “unpreventable employee misconduct” affirmative defense in response to an OSHA citation: that the employer effectively enforces its safety rules upon discovering any violations. Simply stated, this last element requires that an employer discipline its employees for violating any company safety rules. As with the other elements of this affirmative defense, documentation is critical. The fourth element of this defense goes to the very core…
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Element Three of the Unpreventable Employee Misconduct Defense: Insistence on Compliance and Established Methods of Discovering Violations, Despite Not Knowing About the Subject Violation

In part three of this four-part series addressing the “Unpreventable Employee Misconduct” defense, we will examine the third element an employer must prove to successfully defend against an OSHA citation: that the employer insisted on compliance and had methods of discovering violations of its rules, even though it did not know about the specific violation. Similar to all other elements of this defense, the concept is relatively simple: the employer must insist on safety compliance and have established methods for discovering violations of OSHA violations,…
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Before OSHA Arrives: Developing a Culture of Worksite Safety

In daily business practice, one of the most difficult decisions any company leader can make is to change company culture. Despite many company leaders providing a well-thought out strategic plan, the entire collective of company employees ultimately controls company culture. Therefore, to develop a culture of worksite safety, the key is to follow this basic approach: establish effective worksite safety practices, reflect on trending developments to improve worksite safety practices, and develop an annual strategy to revisit worksite safety practices. But, above all of this,…
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How to get Management to “Buy In” for Safety

To get the attention of CEO’s and upper level management, one must focus the conversation on the company’s bottom line. Often times, discussions of workplace safety involve conversations about increased expenses and red tape. However, the struggle to promote the need for additional workplace safety can be made easier if the conversation is focused on terms that CEO’s and management understand and are excited to implement. CEO’s and upper level management “relate to dollars and cents. They don’t relate to incident rates,” says Terry Hart,…
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OSHA’s Recommended Practices For Safety And Health Programs In Construction: A Step-By-Step Approach To Implementing A Safety And Health Program

OSHA publishes a set of recommended practices for safety and health programs to help employers establish a methodical approach to improving safety and health in their workplaces. OSHA’s Recommended Practices for Safety and Health Programs in Construction (Construction Practices) has been updated to account for changes since the document was first published – over 30 years ago – taking into consideration, greater technology and more diversity among workers. The focus of the Construction Practices is on finding and fixing hazards before they can cause injury…
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Post Incident Drug Testing

On May 12, 2016, OSHA caused confusion and concern amongst employers in the preamble to 29 C.F.R. § 1904.35(b)(1)(iv) reporting requirements. The preamble appeared a prohibition, at the very least discouragement, of post-incident drug testing or policies. On October 11, 2018, OSHA provided a memorandum to clarify the Department’s position on post-incident drug testing. In particular, OSHA advises that [t]he Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition,…
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It’s a Wonderful Time of Year! Let’s Keep it That Way!

Holiday plates overflow, we are more stressed, tired, rushed, and a little inclined to cut corners and bend a few rules.  Although there tend to be fewer work accidents this time of year, it is no time to ignore those basic practices we rely on all year round to ensure those around us make it home safely to enjoy the holiday. Ladders Hang the stockings with care. Don’t climb on chairs or other furniture to display your holiday decorations. Make sure step stools and ladders…
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OSHA Restores the Site Specific Targeting Program Based on E-Filing

OSHA reinstated the Site Specific Targeting Program (SST) effective October 16, 2018. The SST, OSHA’s main site-specific targeting inspection plan for non-construction workplaces that have 20 or more employees, will be based on the 300A data associated with a 2017 rule published by the US Department of Labor, requiring certain employers to publicly E-File injury and illness data, beginning in calendar year 2016. Prior to 2014, OSHA’s SST program was based on information collected in connection with the OSHA Data Initiative (ODI). The OSHA Data…
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Element Two of the Unpreventable Employee Misconduct Defense: Effective Communication

In part two of this four-part series addressing the “unpreventable employee misconduct” defense, we will examine the second element an employer must prove to successfully defend against an OSHA citation: that the employer effectively communicated a rule, which, if followed, would have prevented the violation. The idea behind this element is simple: the employer must be able to show that the employee whose conduct was in violation of the rule had previously been told about the rule. However, proving that the communication (1) occurred and…
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Unpreventable Employee Misconduct: Defending Your Company when there is No Defense to the Conduct

What if one or your workers – who should and does know better – violates an OSHA standard?  Shouldn’t an employer be able to defend itself from the violation even when there is no dispute that the underlying conduct occurred? The answer is yes, provided the four elements of the “unpreventable employee misconduct” defense are met. Unpreventable employee misconduct, an affirmative defense, is often raised by employers in OSHA enforcement actions. Thus, while OSHA bears the burden of proving a violation, the employer bears the…
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