But We Did Everything Right! Challenging OSHA Citations with the Unpreventable Employee Misconduct Defense

Kristi Pronovost The Merit Shop Spokesman Blog

By: Michael Metz-Topodas, Jonathan Landesman, and Christopher W. Sexton, Cohen Seglias Pallas Greenhall & Furman PC

Despite the construction industry’s few areas of certainty, contractors can invariably count on facing an OSHA compliance inspection at some point. These visits are meant to ensure everyone on-site is following OSHA’s many and detailed construction-related standards and regulations. When these inspections reveal noncompliance, contractors often end up receiving citations for violations, sometimes with costly fines.

Construction companies fend off the risk of citations and fines by having robust safety programs covering all areas of job performance. But what happens when, despite an employer taking all reasonable measures to run a safe job site, OSHA still finds violations and issues citations? What happens when a careless or reckless employee ignores company safety policies and training? Should the employer be liable? Would an OSHA citation be warranted? Courts interpreting OSHA regulations say: “Not always.” The Unpreventable Employee Misconduct Defense (UEM Defense) is an effective tool for safety-conscious contractors whose employees’ errant conduct results in citations and fines.

The OSHA Citation Process

The OSHA citation process begins with an OSHA compliance officer arriving on-site to perform an inspection, usually triggered by a complaint or an incident involving an injury or fatality. The officer is required to limit the job site review to locations relevant to the inspection’s purpose. For example, an inspection responding to a complaint of inadequate fall protection could look at elevated areas, but not, say, silica levels at demolition locations. Contractors may, and often do, have their counsel present during such inspections, or at least consult their attorney as soon as they learn of the inspection.

When a compliance officer finds violations and issues citations with fines, the cited contractor has fifteen days to negotiate a resolution with OSHA or submit a notice of contest to the citation. This second option moves the process into a formal proceeding, much like a litigation, where, a contractor can formally raise the UEM Defense, usually through their counsel.

The UEM Defense

By raising the UEM Defense, a contractor is maintaining that it does not deserve the citation and fine because it took all reasonably possible measures to prevent the conduct cited. The UEM Defense has several elements which the cited contractor bears the burden of proving. Specifically, a contractor must show it:

  1. Established a work rule to prevent the cited violation and/or unsafe behavior or conditions from occurring (policy)
  2. Adequately communicated the rule to employees (communication)
  3. Took steps to discover noncompliance (monitoring)
  4. Effectively enforced the rule whenever employees transgressed it (enforcement)

Evidence Required and Advance Measures

To satisfy these elements, contractors need the right kind of evidence, which requires taking appropriate action well before receiving an OSHA citation—after is too late. Remember the old saying: “By failing to prepare, you are preparing to fail.” The following explains specific types of evidence supporting each element.

1. Policy – A contractor meets this element by showing written safety policies and practices—both company-wide and job-specific—that match or exceed what the OSHA standard referenced in the citation requires. Such policies and measures include: a written safety manual with policies that meet or surpass OSHA’s standards; a written safety plan for each job, a company safety manager or designated person responsible for company-wide safety; and a full supply of all necessary safety equipment at every work location.

2. Communication – Written policies, however, provide no defense unless the company communicates them to its workers by explaining not only rules and policies, but also how they apply to common job-site situations. Such communication occurs through: requiring safety certification for employment (OSHA-10 for laborers and OSHA-30 for foreman and supervisors); making comprehensive training in company safety policies part of on-boarding new hires; conducting job-specific safety training for each project; holding morning toolbox talks on relevant safety topics that include safety demonstrations; and having safety discussions at daily job meetings.

3. Monitoring – A company must also perform daily job site supervision and inspection to identify safety hazards and ensure workers comply with company safety policies. Monitoring comes from: foremen, superintendents, and other supervisors regularly observing project activity with attention to safety compliance; safety or project managers conducting unannounced job site safety inspections; and third-party safety consultants performing safety audits or mock OSHA inspections.

4. Enforcement – Meeting the final element means having an actual, progressive, and consistent enforcement program for safety policies. The policy should have harsher consequences for repeated offenses or more serious violations, and the company needs to enforce the policy at all times and across all employees, from a laborer to the owner or top executive.

In carrying out these measures, contractors should also keep in mind one essential guideline—document everything! As the popular adage goes, “In OSHA’s mind, if it’s not documented, it didn’t happen!” To help preserve the record for a successful UEM Defense, contractors should create and update consistently throughout every project the following documents: job safety plan, sign-in sheets for safety trainings and job site safety meetings, daily logs with notations regarding safety issues (including any informal safety-related communications), and correspondence regarding any disciplinary action for safety rules violations. As much as possible, such documentation should cover all of the above types of evidence.

Drawing on the above examples, a contractor can present sufficient evidence to support all four elements. Once it does, OSHA bears the burden to refute that evidence. If OSHA cannot successfully do so, the contractor should prevail.

Conclusion

Contractors should implement the above policies, programs, and practices to ensure they can deploy the UEM Defense when confronting an OSHA citation and fine resulting from an employee’s rogue conduct. These measures also promote overall job site safety for all workers.

Even with these measures, the UEM Defense’s protection is not completely guaranteed. No two OSHA citation cases involve identical circumstances, and asserting the defense requires knowing both the underlying facts and how they fit with the defense’s legal requirements. Contractors facing actual OSHA citations and fines should consult with legal counsel well-versed in the UEM Defense and OSHA citation cases.


Michael Metz-Topodas is an associate in the Harrisburg office of Cohen Seglias Pallas Greenhall & Furman PC, where he focuses his practice on construction law and construction litigation, including defending clients against OSHA citations and counseling clients on OSHA compliance and workplace safety. He can be reached at mmt@cohenseglias.com or 717.234.5530.

Jonathan Landesman is Co-Chair of the Labor & Employment Group at Cohen Seglias and can be reached at 267.238.4726 or jlandesman@cohenseglias.com.

Christopher W. Sexton is an associate in the Construction Group and can be reached at 267.238.4710 or csexton@cohenseglias.com.

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November 5, 2019