Unpreventable employee misconduct

Part 3 of 4: Self-Inspection

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

In parts one and two of this four-part series addressing the “Unpreventable Employee Misconduct” defense, we outlined an employer’s obligation to develop written safety rules and what it means to “effectively” communicate those rules to employees. In part three, we examine the third element of the defense: that the employer conducted routine site inspections to discover violations of company safety rules.

In theory, compliance with this element is straightforward: employers must conduct self-inspections that are regular, random, and frequent. The key to proving this element is documentation. Without sufficient documentation, it may be difficult to prove that the inspections were adequate (or, perhaps, even occurred at all) and the employer may fail to establish this element of the defense. 

As a practical matter, it is important to ensure that the self-inspections are unannounced and unscheduled. In OSHA’s view, when employees have advanced notice of an inspection, they are more likely to follow the rules on inspection day, but then conveniently go back to their “old ways” after the inspection is over.  Case law on this subject suggests that employers should consider adopting surprise inspections as the primary way to carry out these inspections.    


The following is a list of effective measures that any employer can implement—all aimed at not only promoting safety and enhancing the existing level of safety performance, but also consistent with establishing the third element of the unpreventable employee misconduct defense.  And, remember, regardless of how effective your practices are, failing to document your worksite protocols and self-inspections could very well negate—at least in the legal context—all of your hard work and sincere efforts.

  • Conduct regular self-inspections of the worksite to ensure compliance with company safety rules.
  • Document any/all communications with employees on the subject of workplace safety and compliance.
  • Actively provide onsite supervision that encourages positive reinforcement and addresses violations as they occur.
  • Develop and maintain written employer policies, which are readily accessible and emphasize the importance of safety compliance.
  • Conduct frequent worksite training/re-training and, if necessary, administer tests and quizzes.
  • Schedule daily meetings with any non-compliant employees, to immediately address the relevant safety issues. 
  • Schedule regular meetings with worksite crews to reinforce the importance of safety—both in general terms and with respect to particular protective measures that must be implemented. 
  • Conduct unannounced, surprise worksite visits to verify compliance efforts; this may include hiring an outside firm to complete the inspection of the worksite.
  • Document reports of when and how the company encouraged and enforced compliance, including any/all inspections and related communications.

Providing proof of the existence of generic company safety policies and procedures is typically easy, but employers often struggle to provide documentary evidence of the supervision and worksite visits. Employers should maintain thorough records of safety notices, meetings, and inspections. Simply providing a reference to OSHA standards and/or making employer policies available is not sufficient. 


Effective employer safety programs must have a procedure to discover and discourage violations of safety rules that is well-documented.

The series on “Unpreventable Employee Misconduct” defense concludes with our next article on the fourth element: whether the employer effectively enforced (and enforces) its safety rules upon discovering violations. In short, the next article will largely address employee discipline.

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, April 2019
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