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One of the many services Western Tree Nut Association (WTNA) provides is filing appeals on Cal/OSHA violations and penalties. Following complaints or accidents, our members will often ask us to appeal significant and expensive violations. In many cases, the employers claim it was solely the employee’s fault. A phrase I hear often is “you can’t guard against stupidity.” Right, wrong or indifferent, this situation occurs quite frequently. The employer claims to have a written policy on this, and the employee has been trained repeatedly on this issue. Then an accident happens and the employee gets injured. The comment is made that the employee simply chose to ignore the warnings. Well, that is where the disciplinary program comes into play … if you have one.
The Cal/OSHA appeals process provides an affirmative defense in situations where it was truly the employee’s own fault. However, it is not an easy thing to prove and is very specific and difficult to meet. I would venture to say that most employers are unable to use the defense, and in most cases, it is because they don’t have an active disciplinary program. The defense is known as the “independent employee action” defense.
Independent Employee Action Defense
The independent employee action defense applies when an employee acts against the best safety efforts of the employer in causing a violation. The employer must prove each of the following elements by a preponderance of the evidence:
• The employee was experienced in the job being performed.
• The employer has a well-devised safety program which includes training employees in matters of safety respective to their job assignments.
• The employer effectively enforces the safety program.
• The employer has a policy of sanctions against employees who violate the safety program.
• The employee caused a safety infraction which he or she knew was contrary to the employer’s safety requirements. (Mercury Service, Inc., 77-1133, Dec. After Recon. at p. 3 (10/16/80).)
‘When it comes to disciplinary programs, there are no gray areas, because when it comes
to accidents, there are
no gray areas.’
Most employers can meet the first two requirements, but their defense falls apart at the third requirement. In many cases, employers might have a written disciplinary program, but it is seldom, if ever, enforced. Or in some cases, it is not used consistently. At a facility recently, a forklift driver was seen operating a forklift without a seat belt. When it was mentioned to management, the comment was made, “He knows nothing will happen to him, so he ignores it.” Therein lies the problem.
To have an effective safety program, the employees must know the safety requirements, programs and plans are there for a reason. They must know there are consequences for failure to follow the rules. This is not necessarily meant to be punitive; rather, it is to protect them. I am reminded of an incident in the cotton industry several years ago where an employee reached into an operating lint cleaner to remove a tuft of cotton, which he was trained not to do. When he did so, he cut the tops of three of his fingers. He was not written up or disciplined. Two weeks later, the same employee did the exact same thing, only this time it took the pads off four of his fingers. Again, he was not written up or disciplined, with the employer thinking the injury should have done the job. Unbelievably, two weeks later the same employee did the exact same thing, again! This time it pulled his entire arm in, ripping the muscle from his forearm. He never worked again, and the employer was severely penalized by Cal/OSHA and paid untold thousands in claims.
Many good employees have been injured simply by not following the proper safety rules. We want our employees to return home the exact same way they came to work: uninjured and safe. Sometimes, we must make hard choices and enforce the rules put in place to protect them. When it comes to disciplinary programs, there are no gray areas, because when it comes to accidents, there are no gray areas.
Roger A. Isom | President/CEO, Western Agricultural Processors Association
Roger is President/CEO of the California Cotton Ginners and Growers Association and Western Tree Nut Association. He brings over 30 years of regulatory and legislative advocacy experience, specializing in environmental and safety matters. Roger’s responsibilities include the management of both Associations’ staff and day-to-day operations. Roger is also the President of the Ag Energy Consumers Association (AECA), board member and Past President of the Ag One Foundation at California State University Fresno, and manages the Navel Orangeworm Action Committee (NOWAC).
