employee misconduct

Part 2 of 4: Effective Communication Methods

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

In part one of the four-part series addressing the “unpreventable employee misconduct defense,” the importance of developing an effective safety manual and distributing the information to worksite employees was discussed. In part two, the second element of the defense is examined: that the employer effectively communicated a rule, which, if followed, would have prevented the violation. 

While the idea behind this element is simple, proving that the communication (1) occurred, and (2) was adequate, may not be so simple in practice. This article will provide you with the appropriate tools to ensure you have two legs to stand on in proving the communication element of the unpreventable employee misconduct defense.

Practical TAKEAWAYs

Merely referring employees to OSHA standards and/or workplace rules is never going to be sufficient. Nor is it sufficient to have employees sign forms acknowledging their responsibility to read various rules and/or safety manuals. 

In short, having an explicit work rule is not enough—the employer must also be prepared to show that the rule was “communicated in such a manner that its mandatory nature is made explicit and its scope clearly understood.” So, conveying a general work rule in a confusing or inconsistent manner will destroy the defense. It is critical for employers to take the extra step to ensure employees (1) understand the rule, and (2) are equipped with the knowledge and tools to follow it. Employers should make it a point to emphasize that safety should never be compromised to increase productivity. A pattern or practice of noncompliance by employees may, in itself, demonstrate that the employer’s communication method was ineffective. 

The following are examples of effective communication means and plain old good practices for contractors and employers. 

  • In a perfect world, each of these means of communication would be utilized in some manner:
  • Distribute a written copy of the workplace rules to every employee with an acknowledgment form for employees to sign
  • Regular safety training programs that are tailored to specific tasks and distribution of written training materials
  • Regular tool box talks and safety meetings with documentation to indicate the date, what safety topic was discussed, and who was present
  • Safety videos
  • Communication at these training/safety meetings to emphasize the importance of rule compliance 
  • Attendance sheets with dates and names for any and all safety discussions, video viewing, and trainings 
  • Maintenance of personnel files with records showing the safety training provided to each employee
  • Warning signs in hazardous work areas

*Employers must also be mindful of any non-English speaking workers and provide the appropriate translations.

In most cases, employers are able to produce a procedure and some written records, but find it difficult to produce written evidence that shows they effectively communicated a violated rule to a particular employee. The above-mentioned communication methods will provide employers with the evidence they need in the event they have satisfied their legal obligations and an employee does something beyond their control. 


In OSHA’s mind, if it isn’t documented, it didn’t happen.

Stay tuned for our discussion of the third element of the unpreventable employee misconduct defense: that the employer insisted on compliance and had methods of discovering violations, even though it did not know about the specific violation at issue.

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, March 2019
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