Unpreventable employee misconduct

Part 1 of 4: Contractor Work Rules

By Anthony M. Kroese, Esq. and Samantha V. Catone, Esq.

What is a contractor to do when, despite its best efforts and compliance with OSHA standards, an employee engages in conduct that ultimately results in an OSHA violation? This four-part series will provide contractors and entities subject to OSHA requirements with the tools to successfully defend an OSHA violation when the violation was a result of an employee’s unpreventable misconduct.

The unpreventable employee misconduct defense provides contractors an opportunity to prove that the violation occurred as the result of the workers’ unauthorized actions. While OSHA bears the burden of proof with respect to proving the violation occurred, the burden of proof shifts to the contractor to establish the affirmative defense of unforeseeable employee misconduct. As such, when asserting this affirmative defense, contractors must acknowledge that the violation occurred as determined by OSHA despite the presence of worksite policies to prevent the violation.

This is the first installment in a four-part series that will examine each of the four elements of the unpreventable employee misconduct defense that must be proven to vacate an OSHA citation. To succeed on the defense, the contractor must prove that it: (1) established a work rule adequate to prevent the violation; (2) effectively communicated the rule to its employees; (3) insisted on compliance and had methods of discovering violations of its rules, even though it did not know about the specific violation; and (4) had effective enforcement of the rule when violations were discovered.


To effectively assert the unpreventable employee misconduct defense, a contractor must prove that worksite rules complied with OSHA requirements intended to prevent the cited violation, as well as that those worksite rules were in place at the time of the citation. According to OSHA, a work rule is defined as “an employer directive that requires or proscribes certain conduct and that is communicated to employees in such a manger that its mandatory nature is made explicit and its scope clearly understood.” Danis Shook Joint Venture XXV, 19 BNA OSHC 1497 (OSHRC Rev. Comm. 2001) aff’d 319 F.3d 805 (6th Cir. 2003). To meet OSHA’s standards, the rule should be specific and not open to interpretation.

In practice, contractors need to be proactive to develop worksite rules and spend time documenting safety and disciplinary policies. All rules should be written to clearly and explicitly indicate that they are mandatory and leave no room for confusion. Rules will fail to meet OSHA standards if it is determined that employees believed there were exceptions to certain rules or there is a record of a rule being violated multiple times. 


To effectively establish the first element of this defense, contractors should develop an employee safety manual that addresses hazards employees are expected to face within the industry. Once in place, the contractor should distribute the employee safety manual during an employee training or orientation, as well as reinforce the distribution of information throughout the year by holding worksite meetings or safety-specific meetings. Additionally, contractors should conduct an annual review of safety materials and rules to ensure they continue to meet OSHA requirements. Where a contractor makes a revision to safety materials or rules, contractors should record when and what revisions were made to all documents. By documenting all worksite safety rules and maintaining appropriate safety materials, contractors will have the evidence necessary to prove that worksite rules were in place at the time of the OSHA citation. n

The next installment will discuss the second element of the unpreventable employee misconduct defense—once a contractor has appropriate worksite rules in place, it is imperative those rules are communicated to employees through adequate channels. 

About the authors:

Samantha Catone is an associate in Goldberg Segalla’s General Liability and Construction practice groups, and focuses her practice on defending large businesses, landowners, and contractors in premises liability and construction site personal injury litigation, including matters involving New York State Labor Law. 

Anthony Kroese focuses his practice on commercial litigation, business services, sports and entertainment, and construction law matters. Anthony serves a wide variety of clients in commercial transactions, personal and commercial real estate, and the creative and cost-effective resolution of development and construction contract disputes. Anthony also focuses his practice on worksite safety and proactive strategies employers in all industries should take to mitigate risk.

Modern Contractor Solutions, February 2019
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