Employee misconduct or employer negligence?
November 23, 2009 by Fred HosierPosted in: Falls, Fatality, new court decision, Special Report, Who Got Fined and Why?
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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, fall protection, PPE
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November 24th, 2009 at 9:20 am
All such deaths as this that I have investigated were employee misconduct and my clients prevailed. The difference? 100% tie-off over six feet is required or work within a guardrail system and it is enforced. We recommend that each employee and each employee of every sub be orientated to the site rules and sign an orientation package stating that he has been made aware of the rules and any consequences including removal from the site. We also recommend that any employee or subcontractor be “written up” as soon as possible at the beginning of the job for any infraction of the rules so as to set the stage for enforcement and to create that paper trail of enforcement.
November 24th, 2009 at 9:41 am
The company was at fault. Rules do no good if they will not be enforced and supervisors do not perform any type of discipline.
November 24th, 2009 at 9:49 am
On a busy work site employees will push the limits including death, but it would help if OSHA could fine employees. Employers are at the mercy so to speak of their employees.
November 24th, 2009 at 9:56 am
The days of a supervisor merely yelling at employees rather than reporting the incident for discipline are far gone! This is a perfect case were documentation would have gone a long way as long as it was backed up by suspension and dismissal. If it save’s 1 life, the supervisor/safety officer did his/her job.
November 24th, 2009 at 9:59 am
The ruling was correct for this case. A company should not hire and train a person only to risk its investment in that person by letting him disregard safety rules. Managers who require regular maintenance of their machinery and tools, should also see to it that their employees are not damaged in the workplace. The problem is that too many managers are only good with paperwork and budgeting, but do not know how to manage people.
November 24th, 2009 at 10:19 am
Rules are in place for the safety of the employee as well as the company. If there is an employee that does not abide by the safety guidelines that are put into place by the company they whould be written up for their lack of safe practices. In this case I believe since there were no employees listed as being written up for safety violations when they are spotted, then the company is at fault and should be held accountable for this safety violation.
November 24th, 2009 at 10:49 am
Your article said the fine was only $3,500.00. Isn’t there a decimal point or 2 missing?!
November 24th, 2009 at 10:57 am
Editor’s reply: Mark, I think you’re saying that the fine was too low in this case because there was a fatality. There seems to be a wide range of fines when an incident involves a fatality. Just yesterday, OSHA issued a $1.6 million fine to a company in the death of an employee in a grain elevator. In the eyes of OSHA, it depends on the circumstances. Also, OSHA has limits on the fines it can issue.
November 24th, 2009 at 11:35 am
Another fine example of management needing to do the thinking for the employees. It is sad but true. Without any discipline, the company will always be at fault. Forget the monetary damages, the company lost an employee and no doubtedly many hours of lost production from the remaining employees. These accidents will always take a psychological toll on everyone within the organization.
November 24th, 2009 at 11:51 am
Anyone else wondering why was there a manhole on a bridge that led only to the ground below? ADA route for jumpers or was a catwalk missing? … Odd.
November 24th, 2009 at 12:11 pm
I’m curious what the deceased employee would say? Today there is always more that the employer could/should do. You can’t just have a disciplinary system for enforcing rules, it has to be in writing. You can’t just yell at the employee, you have to write them up and counsel them. If you’ve never written anybody up, then it’s not “effective”. A judge decides that it’s not “reasonable” to look up 37 feet to see if ee’s are tied off. 37 feet is just over half the distance from a pitcher’s mound to home plate. Who can’t see that far? That is a distance where anybody can “reasonably” view what’s going on. Is it “reasonable” for supervisors to climb up and spend each day looking over the ee’s shoulder? These cases continuously imply that employees are completely ignorant or incapable of recognizing when they should take extra safety precautions, as if they were 3 year olds.
If there has not been training, are no formal programs, etc., then of course the employer has fault. I’m sure the Employer has much of it in this case and based on other cases today, the outcome is justified.
But if the deceased knew 5 seconds prior that he was about to die, would he blame the employer for not being tied off? Might he think twice about the short cut he was taking? I’m guessing yes. So while yes, of course the Emplyer has responsibilities to ensure employee safety, far too often these cases end up this way. Because nobody wants to blame a dead guy.
November 24th, 2009 at 12:30 pm
The company that I work for has written procedures and periodic training for our employees on all types of equipment that we use within our industry. If someone is being unsafe once we will talk to them and explain what was done wrong and explain how to correct this issue, if they are caught a second time for the same violation of safety then they are given a written warning. We have also implimented a safety incentive program which also gets the employees to think and work smarter.
Safety incentives do work and help reduce the safety laziness on the job as well as promoting the aspect of smarter work ethics and being safety concious while on the job, driving, at home or even on vacation.
November 24th, 2009 at 12:32 pm
I have employees that think it’s fun to see what they can get away with; other co-workers don’t want to report the violations because they don’t want to get their “union brothers” in trouble. What a crock of crap that is. Of course they are the loudest about the company not properly enforcing the policy when something actually happens. I have decided when you have a petty union mentality that protects the idiots that want to continue to violate the company policy, there is not much you can do. They are protected by OSHA which sometimes can’t find their butt with both hands; in that they come down with all these rules and regulations for the company, but there is nothing they do if it is gross employee negligence and disregard for the rules of the company. How about some consequences for the employee….. No wonder companies are shipping their business overseas.
November 24th, 2009 at 12:37 pm
What in the world happened to personal responsibility? When are people going to be held liable for their own actions or in-actions? The employee had knowledge of the rules for the job. Are we a nation with a workforce of children of whom we have to have our government hold our hand.
November 24th, 2009 at 12:44 pm
I believe there is plenty of blame to go around.
The company obviously failed to protect themselves (and the employees) by not aggressively enforcing the safety rules, and even worse by leaving huge holes in their documentation. The presumption of innocent until proven guilty does not apply to companies, we have to prove we have done our very best to protect our employees.
The employee obviously failed to protect himself because he was not tied off when it mattered. Do we expect the fed to fine a dead man? Not in this life time, I hope.
The take-away from this type of accident is that a company cannot afford to let it’s guard down. We must always be looking for what can go wrong, and we can never let up on enforcement and documentation. It’s not our responsibility to make up for a negligent employee, it is our responsibility to be able to prove we did everything possible to correct and protect that employee.
Anything else opens us up for fines and lawsuits.
November 24th, 2009 at 1:14 pm
I believe it is past time to hold employees responsible for the dangerous decisions they make. You can train, train, train them and still they turn around and make stupid decisions. Yes, a supervisor is accountable for his workers but even your “good” worker makes mistakes, I see it all the time. Maybe he has something else going on is his mind at the moment and forgets to “safety-up”, is that injury the responsibilty of the super or the company? NO, no one is to blame but the employee.
It is the company’s responsibilty to keep their employees protected at all times by proper operating equipment, proper PPE, etc., so when the employee didn’t tie-off, he made a conscience decision not to protect himself. Yes the hole should have been covered but it wasn’t, the company is liable but not for the death of the employee. Had his harness/lanyard been defective, then the company is at fault but again, properly trained employees should inspect the equipment before using it. A life was lost, which is something that should never happen but it all comes back to employee responsibility.
November 24th, 2009 at 1:15 pm
Here’s a related question. I never see the phone guy or city electric guy in fall protection when operating in a aerial lift with a bucket. Is a bucket exempt from fall portection? If so what CFR reference applies?
Best regards,
Rick Vanater
Safety Manager
Mertz Mfg., LLC
November 24th, 2009 at 1:50 pm
I agreed to most of you. When it comes to employee safety issue, DOCUMENT DOCUMENT and DOCUMENT, you will never fail with that. Always prepare yourself for the worst because the Judge’s rule was correct. Management/Supervisor failed to counsel and follow up with safety misconducts is responsible to the injuries of the workers. Clearly that the company has “safety policy and procedures” for the employee but FORGOT about a policy for supervisor and management. Due dilligence from hiring supervisor who does not have the norm sense in safety should be a huge thing to look into when it comes to heavy construction site. When it comes to unsafe working habit, learn the old say “NIP IT IN THE BUD”, hire the management team that has the attitude.
November 24th, 2009 at 2:20 pm
If you read the decision itself, you find that the work involved removing rivets right next to the edge of 2 uncovered openings. There opening he fell through was 2 feet wide and 4 feet long. This fall hazard could easily have been eliminated by covering the hole (partly or completely) or installing standard railings around the opening, or placing a safety net below. Engineering controls should always be primary, PPE should always be last resort.
November 24th, 2009 at 2:25 pm
Interestingly, at the top of the page there is a poll asking if OSHA should fine employees who don’t follow safety regulations. My answer is Yes. Unfortunatly, people are not always motivated by their own safety but are indeed motivated by their money. Our policy, 1st violation, a verbal/written warning. 2nd violation, 3 days off unpaid. Motivation by fear? They don’t fear for their own safety,
but the company does. So they are motivated by what is important to them. It works.
November 24th, 2009 at 2:51 pm
Sheral, there is consequences for employee. It’s call “be written up.” When supervisors are slack in writing up employee’s for work place infractions, because they don’t want to face the repercussion from the emp’s filing grievences with their unions, the emp’s will always push the limites and end up dead. If they know that they will be disciplined everytime they commit an infraction, they may become few and far between, and remain alive.
November 24th, 2009 at 3:08 pm
One thing I’ve learned by working for a foreign company on US soil is that a safety culture has to be taught. In this particular foreign nation, a rule is all that is required. Go into the facility and no one is wearing PPE. Ask the manager, and they say “Oh, but we have rule”. Enforcement isn’t required.
To them, it is the employees responsibility to look out for themselves. That is the culture in that country. Plus, labor is expendable. Someone gets hurt, they are fired and replaced.
When you have employers like that opening business in America, then safety has to be retaught and enforced. They have to learn that the company is ultimately responsible, especially when we live in a society where no one takes responsibility for their own actions and you can get sued at the drop of a hat.
I’m not sure what nationality Skanska Koch is, but this is an important thing to be aware of either way.
November 24th, 2009 at 4:08 pm
Mark,
Because there was a death, the supervisor responsible for that employee will very likely have to do some jail time and the same risk applies to the General Manager.
Due diligence had not been applied to safety with this company.
OSHA will fine the discrepency that the safety harness was not being worn.
The Courts will deal with the death.
They are two distinct divisions of responsibility.
November 24th, 2009 at 4:14 pm
Linda,
Yes employees should be subjected to the fines if the company has been diligent in promoting safety and keeping good records and can show that disciplinary action has been consistently observed.
If the company’s attitude towards safety is lacks then the company should be held accountable.
Quality Management States that three things can be wrong with a company:
1. The system is faulty - Management
2. The process is faulty - Standard Operating Procedures
3. The employee needs more training - But the employee is never wrong
November 24th, 2009 at 4:40 pm
I’m torn on this one. I believe that employers have the responsibility to ensure that all employees follow operational and safety procedures at all times. Employees have the responsibility to follow the company procedures at all times. Had the entire crew been part of identifying all the hazards present at the work site as well as the mitigating requirements for those hazards this incident would have been avoided and a life would not have been lost. Sadly, a few minutes at the beginning of the shift/day could have prevented the heartache a family experienced.
November 24th, 2009 at 5:22 pm
The wording in the policy was an out for employees not wanting to wear PFAS. The company needs to set a standard and stick with it. If you don’t set rules that are easy to understand it makes it very difficult to enforce them. I am not generally of the same opinion that OSHA is but in this case, OSHA was right. I do think the fine should have been alot higher. I hope the company reviews their policies
November 24th, 2009 at 5:39 pm
Tainialynn, no need to be torn, I feel. Notice the amount of the fine (very small), and Iknow you’re going to ask, what is a life worth… Read Fred Hosier’s comment regarding an icident at a Grain elevator. The courts did not say that the company was negligent in not having a Safety policy, but for failure to dicipline and document and dixciplinary actions. We know there was a Safety concern, for the supervisor could be heard (from 37ft below) yelling at workers to put on their safety gear (probable the guy who was killed was the one being yelled at). But according to the courts that was not good enough. Let’s face it, workers everywhere really need to take responsibility for their actiong…I am also NOT in favor of OSHA having the ability to fine employee. That is the employer’s job, it is also OSHA’s job to fine the employer. Everybody should do their job (including the employee) and there will be no need for fines, or sinceless deaths….
November 24th, 2009 at 6:18 pm
OSHA is not the only agency that has jurisdiction over this situation. There was a death. An investigation is taking place and someone will be held accountable with jail time for negligence.
The company will also face a lawsuit and lose. So there will be more punitive damages awarded then what OSHA has imposed.
November 24th, 2009 at 8:57 pm
This is a real no-brainer. A policy without enforcement is not a policy. Yes the employer should be held responsible. However, that does not prevent me from desiring penalties to employees also. Missouri’s new(er) work comp law allows reductions in comp when an employee violates safety rules and that violation results in injury. But the employer must enforce the rules for that provision to be valid. Several have pointed out that engineering controls would have been more effective. Anytime you can eliminate the human’s actions from the risk scenario, better results happen.
For Rick Vanater: Look up “articulating boom platforms” under OSHA regs for the issue of linemen, telephone guys, etc. not wearing fall protection.
November 25th, 2009 at 8:09 am
I wear a sticker on my hard hat stating, “Tie Off Or Die”
Safety is part of production, if employees chose not to follow the rules, bid them good-bye before the good-bye themselves
November 25th, 2009 at 10:04 am
This is gone to far.. This is a project where the men working are all big boys/girls making big salaries and taking all the required OSHA and NYC safety classes etc.. They know the rules and regulations..If an employee is on a suicide mission there’s nothing you can do to stop it.. I feel also OSHA and the NYC government is partly at fault for their adding and changing of rules that employees are not accostumed too.. Everytime there is an “ACCIDENT” and that in almost all cases that’s what the incident is an “accident” they jump to inforce more rules upon rules .. The Boss is not there to put employees at risk for their lives.. One, noones wants to see anyone injured and two, for basic business practices it drives up your insurance rates..
November 25th, 2009 at 12:16 pm
I agree with Robert’s comments. I don’t think that the company showed due diligence when they didn’t take the time to go up there and stop the behavior of the employee. The foreman is the company’s first line of defense to stop this type of behavior of an employee. If the foreman doesn’t enforce company policies, they should be the ones to suffer the consequences if management discovers the discrepancy. The article didn’t mention anything about training. I would look there first to see if the deceased person had ever been trained. The policy was vague when it contradicted its 100% tie off policy at all times. This company may not change because the fine wasn’t large enough to have them step back and re-evaluate their policies and training.
November 30th, 2009 at 10:45 am
Why should you hold a company responsible for a grown man’s decision to disobey their clearly stated rules? That is just ridiculous. They aren’t running a daycare. They simply gave a job to someone who later decided to go against company policy. People should really take responsibility for their own actions.
November 30th, 2009 at 11:06 am
Tamara - People should really take responsibility for their own actions.
He did, he stepped off a bridge and died. Ya can’t take any more responsibility than that. Also if the proper safety equipment was provided and the employee was properly trained in how to use it, then yes the blame should remain with the employee and not get passed around until it can hurt someone else.
November 30th, 2009 at 11:34 am
Tamara,
Employees come from all walks of life, especially in an industrial environment. You have people that did things differently at another place of employment to people that just aren’t that bright or having been distracted by someone or something or because they’ve become too comfortable with their surroundings.
It is up to the company to train them and the supervisors to keep them focused on what they are supposed to be doing.
In this situation the company wasn’t keeping good records. There is no proof that they were paying much attention to employee safety. If the company and supervisors aren’t paying any attention to safety then the rest of the employees aren’t going to either. It all has to do with the attitude and culture of the company as a whole.
They have no proof that they yell at the employees to follow proper safety procedures so they have nothing to back them up in placing the burden of fault on the shoulders of the employee.
Had they been keeping good records on discipline and training then they would have been covered and the employee would have taking the fault.
Someone is facing criminal charges for that employees death because of the company’s lackadaisical attitude towards safety.
November 30th, 2009 at 12:21 pm
Mixed Opinion,
What OSHA wants is “How can we prevent this type of accident from happening again?”
That means they have to come down on the company to ensure they take steps for it not to happen again.
November 30th, 2009 at 3:38 pm
…And now we’re back to my statement that a company who has employees is not a daycare! Seriously, are we really allowing this country to become even more lawsuit happy than it already is.
November 30th, 2009 at 4:49 pm
Tamara and Robert,
Both of you are right, but in this case, the employer is liable for the accident as it was “foreseeable” that it could end up with a deadly accident.
“Employee misconduct or employer negligence?” there is no definite answer. It is a case by case decision. OSHA just want to make sure it does everything to prevent this from happening again. And by doing that, someone will need to take responsibility for the death of this worker. And in this case, the employer because of reasons stated in the case decision.
December 2nd, 2009 at 9:20 am
After all the training and equipment provided to the employee to work safely and the employee disreguard to use the equipment. “When does the employee have to be held responable for his own safety”.
December 2nd, 2009 at 11:46 am
Harry,
Employees will be responsible after Supervisor/Manager takes steps to discipline them for working unsafely and they disregard and continue to work unsafely. This can cost them termination after documentations of counseling and they ignore it.
December 2nd, 2009 at 3:22 pm
I think OSHA, along with any reasonable working person, would say that the deceased was indeed liable for his own safety as long as the proper PPE was available to him, he was properly trained to use it, and had been observed using the knowledge and the equipment properly and regularly. That of course is where the questions arise. We all know that if all the things in question were as they should have been, the deceased would not be deceased. I am not one to sing the praises of OSHA myself, but if we have persons on our staff who disregard safety policy and procedure, we’d better get rid of them in haste! If we don’t, we are only setting ourselves up for a terrible fall. It doesn’t take long to find out which of these people have less than average common safety sense and which are determined to do things their own way…..the latter will not change with discipline…..there’s the answer.
December 5th, 2009 at 1:05 pm
The employee disregarded plain language policy and verbal warnings! It’s clearly his fault!!! This is just annother example government burocracy at work and codling the populace to the point that nothing is the individuals faut!!!! At what point do people start to take resposibility for their own actions and/or lack there of.
December 7th, 2009 at 11:19 am
Paul,
When people are up aloft like that they are required to have a safety observer.
Furthermore, this company uses the yelling at employee management style.
Therefore, they weren’t showing employees that they were very well respected in the first place and were treating them like kids.
Apparently the safety observer wasn’t paying attention when the guy stepped through through the hole and who knows what took place just prior to him stepping through the hole, he might have just been yelled at for something else.
The company wasn’t keeping good records on training and discipline. That is where the company went wrong. If they can’t prove they were properly training and enforcing policy then it wasn’t getting done.
Wake up. You can’t expect employees to be treated like crap then perform like perfect professionals. I expect there is a major attitude problem within that company. A lot of do as I say and not as I do. I expect that the employees were not of the best quality because most quality people would have moved on to better places of employment.
So I would say the company is at fault.
December 23rd, 2009 at 11:01 am
Each job brings its own set of risks. It is a manager’s responsibility to inform his employees of potential hazards, and PPE to avert these type of tradgedies. Was there an orientation done? Was there a safety huddle or safety council? Did manager’s do everything to provide awarness training and penalties for non complinace with safety procedures? If an organization runs and does not address this with employees, employees will tend to do things the best way they know how. OSHA just wants to know you’ve done some type of analysis after an injury to keep it from happening again. Having documented training sessions with signatures gives a manager more leverage but absence of documentation shows carelessness and wrecklessness on part of the employer. This isn’t about baby sitting. It is about operational risk management and safety awarness in general.
December 29th, 2009 at 11:22 am
Based on what I’ve read I think both parties are at fault. Obviously the employee paid the ultimate price for his lax attitude toward safety, especially his own. Alot of info isn’t provided such as the length of employment, was the employee a new hire and if so did he receive an initial safety orientation that was documented and regular refresher training that was documented? If he was a veteran employee did he have a “documented” history of safety violations and was proper disciplinary action taken and was it applied fairly and consistent across the board? There are so many variables that could be applied here, one way or the other. But one thing is for sure, by now we all should know that for the most part companies and their management teams will be considered “guilty” until proven innocent in cases such as this and the only way to prove their innocence is to have plenty of documentation to show “safety” is a top priority from the very top all the way down to the bottom. But even then human nature being what it is, so many people are more than willing to take the risks knowing they’re putting their life in jeopardy and most likely have the mentality of thinking “it won’t happen to me”. I think complacency is a problem on both sides of the fence…as is the case here.
December 29th, 2009 at 5:23 pm
Amen Dan! It is a tough thing to juggle the number one priority of making a profit along with the number one priority of safety and the number one priority of quality etc. etc. I think companies which have a large number of supervisors to dedicate to certain jobs are more likely to remain consistent with their safety practices and remedies, but it is indeed very easy to become complacent, especially with a crew of workers who do not have a history of dangerous practices and accidents. This is a bit of an eye opener for me.