Tuesday, August 11, 2009

Lawyers - Redux

Part of a comment from the last post:
"Most of the attorneys I have worked with have been really great. Some cases, CSHOs are permitted to contact SOL in advance for advice - you need this or that, shore this up, etc. It's been a great relationship. Of course, there's a few that you grimace when you hear who drew your case."
It was kind of buried in the last post, but I did say "It's also important to understand that not all attorneys are the same, I once had an attorney who was ready to go to trial over 3 OTS..." I probably owe the good attorneys an apology, because the commenter is right, we have some very good lawyers out there.

The advantage of time is that it gives you a little perspective. Over the years I have seen good attorneys come and go, and I've seen not so good attorneys come and stay. Over that same time I've had conversations with CSHOs from other regions (usually over a beer at the end of the day while attending an OTI course) and it's always interesting to see how their RSOL changes over the years (as does ours). We've all heard stories about how the attorneys in Region Z never take cases under $xxx to trial. Or how the attorneys in Region Y only take Wage and Hour cases. But wait for a few years and that seems to change.

Part of the problem is, as I mentioned in the original post, inconsistency. I recognize, and I hope everyone else does as well, that there is no such thing a perfect synchronization when it comes to S&H. But I do hope is that the new Assistant Secretary and the new Solicitor of Labor can get together and come up with something (an MOU, a joint statement, a directive, a memo, something) that better defines when RSOL will take a case to court and when they won't. If that means that CSHOs get more training from the lawyers on what constitutes a solid case, fine. If that means that the attorneys come out on a few inspections to see what we see, fine. Even if we all just sit down, have a beer together and discuss it, fine. Let's just do something.

Here's a second comment/question I want to answer:
I see your point, but as a non-OSHA insider, I question, 1) did the employer instruct the employee to keep the guard on and he chose to remove it anyway, same for the fall hazard.

I don't disagree that ultimately, the employer must enforce proper safety practices, but is it possible that the employee may have some fault? I know it was only an anecdotal case, but I keep seeing situations where the employer is always at fault, and the employee is never considered at fault. How do you resolve the second part of the General duty clause, 5(b)?
To start, let's review Section 5(b):
(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.
It seems pretty straightforward, if you're an employee (like I am) you have to follow the rules too, just like the employer. But here's the rub, Section 9(a) of the OSH Act says OSHA shall issue citations to employers for violations, but it says nothing about issuing citations to employees. In other words, we can't cite employees for violations. That is why you see citations to employers for missing guards but not employees. Do we find situations where employees have removed guards despite the employers rule prohibiting it? Yes, not often, but it happens.

Employee misconduct is what's known as an affirmative defense. There are two catches to the affirmative defense, first the employer must prove the employee misconduct in court, second as part of the investigation we are going to defend against the defense. If you want some additional reading, Chapter 5, Section VI of the FOM discusses affirmative defenses (warning: that link is to a very large .pdf file that may take some time to download).

And finally, The Pump Handle has a post on potential OSHA legislation in the Senate, which is worth reading. Unfortunately, one of the things I think is most important, changing the laws that were written to specifically interfere with our standard making, wasn't addressed. I guess there's always next year.


  1. As the poster of the second comment, thank you for the clarification.

  2. I read chapter 5 section VI of the FOM. I understand OSHA's position, but I think that it creates a problem in and of itself. The employer is obligated to protect an employee from himself. An employer can train, can reinforce, can inspect, and enforce, but if the employee takes a risk, the employer is still at fault.

    On the other hand, the employee sees no personal consequence (other than injury) for taking the risk, and OSHA will ultimately help defend him against his employer.

    The million dollar question is how to make sure that:

    1. The employer establishes a safe work environment and addresses hazards.
    2. The employee does his job safely and doesn't take any risks.

    My feeling is that right now, OSHA does not address item 2 adequately and simply falls back on the employer should have prevented the situation.

    I am not advocating citations against employees, but with all the expertise at OSHA, MSHA, NIOSH, etc. I would think that some techniques could be developed to help educate employees or prevent them from taking the risks. The simplistic analogy is the carrot/stick. Right now, there is no carrot to the employee for doing a good job, and the employer gets hit with the stick.

  3. What you seem to be talking about is behavioral based safety (BBS). If you Google it you'll find all sorts of descriptions and ways to use BBS, as well as several criticisms.

    When I do an inspection, part of what I look into is exactly what you mentioned:

    1. does the employer train employees and do the employees understand the training,

    2. does the company have a policy/procedure/practice of self inspection,

    3. does the company have a disciplinary program, and if so, do they enforce it.

    What I find most frequently is that either the company doesn't do the inspections (or doesn't do them properly), or they don't apply their disciplinary program (ie the employee gets away with it time after time).

    When I'm walking around a shop and see a missing guard, before I even go over to the machine, I'm going to ask the management rep I'm with how often they, or other managers, are out on the floor. Once I have that answer, I’m going to talk to the employee and those around him to find out how long the guard has been off the machine. More often than not the guard has been off the machine long enough for the manager to have walked by multiple times and not address the problem. In the case file I’ll note the hazard was “in plain sight,” the frequency of management rounds, and the length of time the guard has been missing.

    If an employer does the training, inspects the work place, has (and enforces) a disciplinary program, then I'm going to discuss it with the employee. Most of the time I can get the employee to admit to removing the guard, even though they know they shouldn’t. No citation.

    Affirmative defenses rarely work because we have been trained to recognize those situations which can lead to an affirmative defense, and we know how to look deep enough into that situation to make sure it’s not employee misconduct, or infeasible, or a greater hazard. The irony is that we have no statistics on when we don’t issue citations precisely because there are no citations.

    There are a lot of theories and ideas for running a safety and health program, most of which use the carrot/stick concepts, many of which are freely available. The thing is, OSHA isn’t in a position to offer a carrot to employees, that has to be the employer’s responsibility.

  4. I understand your comment, and I understand the policy you have to work with. However, there seems to be no self responsibility in the system. The employee gets hurt, the employer gets the citation, a lawyer gets involved and blames a manufacuturer. Reality for a manuafacturer is that the guard was there, instructions say use the guard, employee takes it off (I understand that some guards create interference) Manufacturer has to defend against deliberate act of employee, employer is protected by workers comp. Everyone loses.

    BBS works when employee recognizes benefit to safety and consequence of not being safe. But too often, the risk is considered acceptable by either the employee, employer or both. ("We have gotten away with it before.")

    The model of OSHA doesn't encourage proactive safety. It doesn't reward doing things right by either the employee or the employer. The employee doesn't see any concequence for his actions.

    Sorry I will get off my soap box. I just wish we could find a solution that works, for everyone's sake. Think outside the box, ... Elaine Cullen from Niosh is was a great example. Anyone who can reach underground miners with training programs and get results like she has should be given a medal.

  5. Please, do not get off your soap box, I'm all about soap boxes.

    And please don't think I meant my comments as criticism of your thoughts, all I was trying to do was explain how we do things and how we're boxed in as CSHOs.

    How about this, let's collaborate on a post. We'll work together to define your frustrations so that everyone can see them as you do, then we'll explore OSHA and the S&H profession's limitations/weaknesses in addressing the problem, then we'll open it up to see if anyone reading this has any ideas on how to fix it. I may not be able to follow through on any ideas, but maybe some one who reads them can, or maybe someone knows a guy, who knows a guy. Maybe it will turn out to be something that OSHA can't do, but responsible companies can. Who knows?

    If you're interested, we can do it here under the comments for this post, although I prefer to do it by e-mail (it's easier to make edits to text). If you want to remain anonymous, you can create a temporary e-mail at gmail.com, or you can trust that I won't tell anyone you current e-mail. If you're interested.

    As for Elaine Cullen, I can't imagine you would find many people who would disagree with you.