Employers seeking to challenge federal workplace safety violations alleging misconduct must avoid common pitfalls, according to an attorney who specializes in workplace safety on behalf of employers.
Michael Rubin, New York-based chairman of the national task force on OSHA and workplace safety at defense firm Goldberg Segalla LLP, led a webinar Tuesday to address common defenses when companies face fines following an occupational safety and health investigation.
“That your employee should have known better, that’s a kind of defense. But OSHA will say, ‘Well, how could the employee have known better? What training did you provide the employee? Did they need any retraining? It̵
7;s just going to raise a lot of questions,” said Mr. Ruby.Employers who want to challenge citations using the defense of “unavoidable employee misconduct” must follow certain protocols based on case law, he said.
“With this defense, you can actually go deeper and effectively say, even though you did everything correctly as management, your employee did not follow the directives and therefore … you should prevail,” he said. “It’s basically a winning merit defense.”
One of the best ways an employer can prove it had an adequate safety program in place and enforced it is through consistent documentation of workplace training and disciplinary actions, he said. He noted that the following elements of jurisprudence must be met: The rule must be established by the employer; it must be communicated to employees; the employer must take steps to detect breaches of its own rules; and it must demonstrate that the rules have been effectively enforced.
“This is the backbone of a health and safety program,” he said. “You have to have a disciplinary program. You have to have a record that this is a real thing and you maintain it.”
Disciplinary “write-up forms,” for example, can be evidence in an OSHA defense that the employer has an effective program in place and that it notes when an employee is out of compliance, Mr. Ruby.
“Even if you think you’re doing all these things, think about how you can improve what you’re doing,” he said. “Are there any gaps? Time passes, your business may change or new people come in.”
Tuesday’s webinar came amid stepped-up federal workplace safety programs aimed at curbing fall protection and digging violations.
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