Construction Companies Have an Up-Hill Battle Proving Misconduct Defense with OSHA Violations
By COSTAS CYPRUS, ESQ.
OSHA violations are issued from the observation of unsafe practices at jobsites regardless of whether an accident has occurred. Typically, these violations arise from employee(s) not following a company’s own safety rules. However, the burden to prove the employee misconduct so as to dismiss an OSHA violation is generally high and the recent decision in Secretary of Labor v. Elmer W. Davis, Inc. is informative as to the extensive policies and procedures a construction company has to have in place to successfully argue it.
Elmer W. Davis, Inc. (EWD) is a commercial roofing contractor based in Rochester, NY, employing 150 to 300 people depending on seasonal needs. On April 30, 2021, EWD assigned two employees, Ory Leach and Cody Pritt, to repair seams on a low-slope roof of a one-story commercial building in Rochester. The roof to be repaired was rectangular and not more than 50 feet wide, and its slope was
less than 4 in 12 (vertical to horizontal); the roof’s edge was unprotected and three of its four sides were about 15 feet above ground level. Upon arrival the employees decided that the roof’s configuration permitted them to solely use a safety monitoring system and did not require implementation of further fall protection based on EWD’s work rules.
Mr. Leach was the designated foreman of the two-person crew based on seniority, and as crew foreman Mr. Leach decided he would act as the safety monitor for Mr. Pritt while he performed the repair. EWD’s work rules for safety monitoring prohibited Mr. Leach from engaging in any roofing work while he was acting as safety monitor for Mr. Pritt, and Mr. Leach was aware of this rule. While Mr. Pritt did the roofing work, Mr. Leach held a hand trowel Mr. Pritt had been using and he began to do some roofing work himself thus performing work while simultaneously acting as safety monitor for Mr. Pritt. Mr. Leach’s action of simply holding the trowel violated EWD’s own work rule that safety monitors engage in no activity other than monitoring.
As Mr. Leach and Mr. Pritt were on the roof, an OSHA Compliance Officer (CO) that was driving by noticed them working near the roof’s unprotected edge without using any fall protection. He took multiple photographs showing Mr. Leach standing near the unprotected edge with his back to the edge facing away from Mr. Pritt, and the hood of Mr. Leach’s sweatshirt pulled fully over his head, limiting his peripheral vision. After observing and photographing the employees for approximately 10 minutes, the CO identified himself to them and asked them to come down from the roof. CO briefly interviewed the employees. EWD’s Safety Director Tim Crumb, had also been called by Mr. Leach and arrived at the site. After discussion with the CO, Mr. Crumb summoned the employees over in which it was established that the employees partook in safety training on fall protection that Tuesday, and EWD established that employees must always have a monitor. The next day, on May 1, 2021, Mr. Crumb sent the CO an email stating that “no doubt that a violation occurred” that “this is a case of misconduct.”
On May 3, 2021, EWD formally disciplined both Mr. Leach and Mr. Pritt for their conduct on the roof, the disciplinary notices of each employee imposed a one-week suspension in accordance with EWD’s progressive discipline policy. Subsequently, OSHA issued a Citation that alleged one serious violation asserting a violation of the standard which prescribes permissible fall protection systems and practices for “roofing work on low-slope roofs” with the alleged violation description providing that “On or about 4/30/2021,… the employer did not enforce the use of fall protection for employees engaged in roof work …Employees were exposed to falling 15 feet to lower levels while working near the roof edge with no fall protection.”
Following the hearings, the Administrative Law Judge (ALJ) found that the Secretary (of Labor) had proven by a preponderance of the evidence (i.e., that it was more likely than not) the employee’s conduct was in violation of the applicable standards, which provides that employees working on low-slope roofs with unprotected sides and edges six feet or more above the lower level shall be protected by implementing a guardrail system, safety net system, personal fall arrest system, warning line system and safety monitoring system. As set forth in the standard, a compliant safety-monitoring system shall conform to criteria that a safety monitor shall be on same walking/working surface and within visual sighting distance of employee being monitored, be able to communicate orally with the employee and that the safety monitor shall not have other responsibilities which would take the monitor’s attention from the monitoring function. The acting foreman violated these rules when he began to do some roofing work, which would have reasonably taken his attention away from his monitoring function.
However, EWD was successfully able to prove the affirmative defense of unforeseeable employee misconduct and overcome the “substantial evidentiary hurdle.” To establish this affirmative defense an employer must prove the following evidence by a preponderance of the evidence: 1) it established work rules to prevent the violation; 2) these rules were adequately communicated to the employees; 3) it took steps to discover the violation; 4) and it effectively enforced the rules when infractions were discovered. Under the first element it was found that EWD’s work rule prohibited safety monitors from engaging in any activity other than monitoring employees and if Mr. Leach had complied with this company’s rule his conduct would have conformed to the mandate that a safety monitor have no “other responsibilities which would take the monitor’s attention from the monitoring function.”
EWD’s work rule was adequate because it both “effectively implemented the requirements of the standard” and was “designed to prevent the cited violation.” Under the second element, adequate communication of a work rule may be accomplished through training and here EWD adequately communicated its work rule. EWD’s written “Corporate Safety Program” addresses the role of a safety monitor in fall protection and is covered during orientation of new employees, in addition to annual training on fall protection training for its employees, and alongside regular participation by its field employees in toolbox talks and on-the-job training.
Additionally, Mr. Leach and Mr. Pritt attended refresher training on the use of a safety monitoring system three days before the violation occurred. Under the third element of effective implementation, a safety program requires diligent effort to discover and discourage violation of safety rules by employees, and one of the factors used to determine whether employer effectively enforced its safety rules are the efforts it takes to monitor adherence to those safety rules. EWD established this element by showing it had a designated foreman who is responsible for worksite safety; a separate safety director who devotes much time visiting jobsites monitoring compliance with work rules, alongside another member of EWD’s safety department who also conducts worksite inspections. Furthermore, EWD also hires outside safety consultants to conduct unannounced inspections and requests that its insurance carriers conduct their own unannounced inspections.
As to the last element, it must be shown that an employer effectively disciplines employee misconduct. Pre-inspection and post-inspection disciplinary measures may be considered in determining whether an employee has effectively enforced its work rules. EWD’s progressive discipline policy prescribes an oral warning, as the sanction for first-time rule violations, but an employee’s first-time failure to use required fall protection is an exception, warranting the more severe sanction of a one-week suspension, or at the option of the sanctioned employee, in lieu of suspension, completing an OSHA-authorized training course on their own time.
Since 2013, EWD had formally disciplined employees on 83 occasions, including for violations of fall protection violations. The two employees here were similarly disciplined with one-week suspensions. Therefore, this affirmative defense was established, and the citation was vacated.
About the author: Costas Cyprus is an associate attorney practicing construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 and at [email protected]. The articles in this series do not constitute legal advice and are intended for general guidance only.