Unpreventable Employee Misconduct: Defending your company against employee safety misconduct


How To Effectively Use the Unpreventable Employee Misconduct Defense in OSHA Proceedings


One of the most damaging occurrences that can happen to a business is the burden of worker and workplace safety violations by the Occupational Safety and Health Administration or OSHA. The reality is that for both construction and general industry segments hundreds of companies are cited daily for OSHA safety standards. Should


Request "Employee Safety Misconduct" Protection


Whether your business is construction or general industry, unpreventable employee misconduct can be used as a defense in OSHA proceedings if safety training is implemented properly.
Is your business responsible when an employee ignores safety training?

OSHA appear unannounced a business needs to be prepared, which is a key tactic to avoiding costly citations.


Frequently cited OSHA safety standards for both construction and general industry include these top 10 violations:


  1. Fall Protection

  2. Hazard Communication Standard

  3. Respiratory Protection

  4. General Scaffolding

  5. Ladders

  6. Lockout/Tagout - also referenced as Control of Hazardous Energy

  7. Powered Industrial Trucks

  8. Fall Protection Training

  9. Protection of Eyes and Face

  10. Machinery and Machine Guarding


Time and again, companies are cited by OSHA for safety and workplace violations that arise out of what can be classified as unpreventable employee misconduct. When a safety standard is enforced by OSHA, unpreventable employee misconduct is often raised by employers as an excuse. A company cannot defend against safety allegations related to worker misconduct unless they have developed an effective means of protection.



Unpreventable Employee Misconduct Defined


From a legal standpoint, unpreventable worker misconduct is what is known as an affirmative defense in the event a construction company or some other type of business entity is facing the prospect of an OSHA violation. Legally speaking, an affirmative defense means that a business in the midst of an OSHA investigation has the legal burden of demonstrating that the agency should forgo penalizing the enterprise.

To successfully use this defense, the company needs to demonstrate that the business could not have reasonably prevented a worker from engaging in misconduct. Four specific elements of unpreventable worker misconduct must be demonstrated in order to prevail over OSHA in finding against the company.



Four Elements of OSHA Safety Violation Defense


Guarding against the imposition of an OSHA safety violation for unpreventable worker misconduct requires a company to prove four essential elements in its defense:


  • Establishment of an adequate rule or set of rules designed to prevent the complained of worker or workplace safety violation,

  • Effective communication of the existence of the rule or set of rules to workers,

  • Established method or system in place to discover rule violations in a reasonably timely manner, and

  • Effective rule enforcement by company

The first element of an effective defense against OSHA sanctions arising out of alleged unpreventable worker misconduct is crafting and implementing an appropriate rule or set of rules addressing proscribed conduct, actions to maintain a safe work environment, and conduct to be avoided.


The second element necessitates the effective communication of the existence of such a rule or rules to employees. Communication must not only be clear and complete but undertaken in a manner that is readily verifiable should the matter of an OSHA investigation arise.


When you hire D & D Safety Consulting, you are assured protecting your employees' safety and safeguarding your company from OSHA safety violation & fines.

The third component necessitates a methodology or system in place that permits a company the ability to identify rule violations in a reasonably timely manner. Applicable law and OSHA regulations typically mandate reasonable efforts on the part of an employer and not perfection. A discovery of a violation is deemed to occur in a reasonable period of time based on what would happen or has happened in the case of a similarly situated employer.


Finally, a company must be able to demonstrate effective rule enforcement. While completely eliminating unpreventable worker misconduct is not likely, reducing the incidence of this type of safety behavior is an achievable objective.



A La Carte is Insufficient to Protect a Company and Its Workplace


Time and again, construction companies and other businesses take what fairly can be called a piecemeal or a la carte approach to safety training. In the overall scheme of things, this approach to safety instruction leave employees inadequately trained. Moreover, spotty safety training of this nature is apt to defeat a company’s attempt to mount an unpreventable worker conduct defense should that business face an OSHA investigation.


On a related note, in-house safety instruction very well may fall short of being an adequate and effective means of enhancing workplace safety. Businesses of all types, including construction companies, clearly benefit from taking advantage of professional safety instruction. Frankly, a contractor without a specific background in plumbing would not undertake an essential plumbing job at a construction site in-house.





A reliable, reputable contractor would appropriately engage the services of a subcontractor experienced in that particular field. This truly is analogous to what a company needs to do when it comes to workplace safety hazards training for both direct employees as well as other workers who may be contracted during the course of a project.



Effectively Protect Your Company Against Unpreventable Employee Misconduct


The best way to protect your company against unpreventable or unavoidable employee misconduct is to take a proactive stance. Your company is in the best position to defend itself against worker misconduct that threatens OSHA violations by implementing a comprehensive safety program.


D & D Safety is a Safety Consulting Company that offers affordable, comprehensive safety training programs. These include unpreventable worker misconduct safety packages that start at $1,900.



Contact D & D Safety Consulting today at (216) 352-1900 to arrange a no-cost and no-obligation safety audit for your company.