EMPLOYMENT LAW AND LABOR RELATIONS
WORKPLACE SAFETY DEFENSE THWARTED BY COMPANY’S OWN POLICY Amanda M. Jones _________________ ajones@cades.com
A Hawai‘i appellate court recently affirmed a decision upholding a citation for a “serious” violation issued by the Hawai‘i Occupational Safety and Health Division (HIOSH), rejecting a key defense because the employer didn’t follow its own unnecessarily strict safety policy. Citation issued for lack of personal fall arrest system In December 2012, HIOSH inspectors observed three employees installing a photovoltaic system on an 18-foot roof without being properly secured in a fall protection system. The company had a “foreman” or “leadman” at the site responsible for safety compliance, but he apparently failed to ensure the workers were properly secured. The company also had a fall protection policy that required employees to tie off to a full arrest system every time they were on a roof more than six feet above ground. Importantly, the policy reportedly imposed severe consequences, stating violations “will result in immediate suspension or termination of employment.”
To avoid liability under the employee misconduct defense, the employer must prove: (1) It has established work rules designed to prevent the violation; (2) It has adequately communicated the rules to its employees; (3) It has taken steps to detect and correct violations, especially if there were incidents of prior noncompliance; and (4) It has effectively enforced the rules when violations have been discovered.
‘Serious’ violation results in no suspensions or terminations HIOSH issued the company a citation for a “serious” violation as a result of findings during the inspection. At the hearing to contest the citation, the company argued it shouldn’t have received the citation because the violation was due to employee misconduct.
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