Employee misconduct or employer negligence?

November 23, 2009 by Fred Hosier

Posted in: Falls, Fatality, In this week's e-newsletter, new court decision

When a worker doesn’t use PPE and dies on the job as a result, is the employer responsible or is it a case of employee misconduct?

Here’s a recent example and how the case was decided.

Skanska Koch was hired to renovate the Triborough Bridge in New York City. On May 6, 2008, an employee fell through an uncovered hole about 37 feet to the ground and died from his injuries.

The employee wasn’t tied off. OSHA issued a serious violation fine of $3,500 for a failure to provide appropriate fall protection.

Skanska Koch appealed the fine to the Occupational Safety and Health Review Commission, arguing this was a case of unpreventable employee misconduct.

An OSHRC administrative law judge rejected the company’s argument and upheld the fine.

The company said it had a policy that required all employees to be tied off at all times.

However, this is a written summary of rules that employees received: “All employees are required to wear a safety harness/lanyard at all times while on this jobsite. Although some work tasks may not require you to wear a harness/lanyard, you must have it with you at all times so you are always prepared to tie off when the need arises.”

The judge said that suggests there are times when employees are not required to tie off.

But that’s not the only problem the judge found with the company’s safety practices. Supervisors and safety managers testified that they conducted inspections to see if workers were using fall protection by looking up at the employees 37 feet above to see if they were tied off. The judge said that is not a reasonable method of discovering violations.

Evidence also showed that when a violation was found, supervisors didn’t effectively enforce the rule. Even though the company had a progressive enforcement plan, when a supervisor would find an employee working without being tied off, he would merely yell at them rather than report the incident for discipline. The judge said merely using verbal warnings isn’t a sufficient method of enforcing safety rules.

What do you think about this decision? Let us know in the Comments Box below.

Also vote on our poll this week on workers and safety regulations on our home page.

Cite: Secretary of Labor v. Skanska Koch, Inc., OSHRC, No. 08-1623, 10/1/09. PDF of the decision available here.

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Tags: employee misconduct, PPE, worker dies

John Grosshans

Ask the question to workers “Who is responsible for your safety?” The correct answer is, ” I am.”

When will we ever take safety to the next level and accept responsibility?
Cool Daddy

Disagree. as the article states,

“Even though the company had a progressive enforcement plan, when a supervisor would find an employee working without being tied off, he would merely yell at them rather than report the incident for discipline.”

It is not effective to have rules written on paper, that are not effectively reinforced in the field…

At some point there has to be a consequence with some teeth to them - this is a fundemental management principle that consequences (+/-) drives behavior. If I am told to connect my lifeline, and I know that if I don’t I will lose my job, or be suspended, I will most likely connect my lifeline. If I know that my Supervisor will only raise his voice at me…I most likely will become conditioned to not tying my lifeline….The employee was accountable (he was yelled at) - The Supervisor wasn’t.
Sean

Sorry but at some point we need to hold employee’s accountable for their own actions. The employee was informed that saftey harness was required, he chose to ignore the rule and I don’t see why the employer should be at fault, unless we now should treat the adults as we do small children.
spinner

several points:
1) it is not necessary to be within a few feet to see if someone is using fall protection correctly. At 50 , 80 or even 100 feet harnesses and lanyards are still plainly visible to someone with 20/20 (or adjusted to 20/20) vision.
2) the employee was provided a workable harness but chose not to use it in clear violation of the companies safety program. this is the employees failure.
3) the company required harness but did not enforce it requirements. this is the compnies failure. company safety rules must have force behind them if employees are going to follow them. no exceptions. no excueses.
4) the companies requirements for when to use harnesses was not clearly stated and it left too much up to the decision of the employee.
5) many places do not rquire harness use. permanent stairs and walkways that follow OSHA guidelines do not rquire harnesses to use them. this is a reflection of #4 lack of clear undersanding of when and where harnesses use is required.
6) the actual cause of the incident was not harness use.
“an employee fell through an uncovered hole about 37 feet to the ground and died from his injuries”
this is the cause of the incident. the uncovered hole is a severe violation of OSHA rules and probably company safety policy.
Cool Daddy

Classic case of a company using paper to cover active safety monitoring. The ruling is correct.
Michael

This is absolutely a company responsibility. I’ve worked as a safety engineer in plants where “safety is the job of the safety engineer/group” and ones where safety is a management responsibility. The comparison is striking. I currently work at a plant where the process engineers, supervisors, and managers all look at safety as part of their job. They are the enforcers, not me. And their performance appraisal has a significant safety component - safety audits completed, training done on time, safety work orders closed out promptly, BBS observations done by all employees, number of potential hazards entered. All proactive measures. Not surprisingly, our incident rate, recordable rate, lost time rate, and workers comp is dramatically lower than was the case in the other plant.
I encourage everyone interested in this approach to read and study Dan Brown’s classic “Safety by Objectives: What Gets Measured and Rewarded Gets Done.”