Employee Misconduct

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

In the final part of this fourpart series on the “unpreventable employee misconduct” defense to an OSHA citation, we will address the fourth and final element of the defense: that the employer effectively enforces rules when violations of corporate policy or OSHA regulations have been discovered. In short, this element requires an employer to discipline its employees for violating company rules and maintain a record of all disciplinary action.


To satisfy this element, employers must have a written disciplinary program in place and ensure the program is distributed to all employees. While the program may include oral or written reprimands and/or suspensions, it is critical that any oral reprimands are also documented. The program should contain different levels of disciplinary actions based on the severity of the violation and whether it is a repeat violation. The existence of multiple repeat violations may indicate to OSHA that the employer is not effectively enforcing its safety rules, and could prevent the employer from being able to assert this defense.


Like the second element, which addresses effective communication of safety rules, the disciplinary program must be clearly and effectively communicated to all employees. Further, just having the disciplinary program in place and effectively communicating it to employees is not enough—the employer must actually discipline employees for rule violations and document the type of disciplinary action to demonstrate effective enforcement. 

It is also important to enforce your disciplinary policy promptly and consistently among all employees after discovering a violation. If disciplinary action is delayed or inconsistent, this may indicate to OSHA that your enforcement policy is ineffective. There should be no room for confusion in employees’ expectations and understanding of the type of disciplinary action they face if a safety rule is violated. 


The takeaway for establishing each of these elements is the same: documentation is key! Remember, in OSHA’s mind, if it’s not documented, it didn’t happen. While taking these proactive steps may seem cumbersome, they outweigh the costs associated with an OSHA citation while simultaneously providing a safer workplace for your employees.

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 at Goldberg Segalla 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, May 2019
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