I just attended an Associated Builders and Contractors meeting during which Lueder Craig Martin, Construction Attorney, Lamson Dugan & MurrayConstruction discussed a fatality on one of its worksite.  OSHA fully investigated the incident and did not issue a single citation.  This is a testament to the safety plan and training Lueder had in place well before this incident.  One defense to an OSHA citation is unpreventable employee misconduct.  However, proving this defense requires substantial planning, well before an incident or investigation.

Unpreventable Employee Misconduct Defense

OSHA requires that an employer do everything reasonably within its power to ensure that its personnel do not violate safety standards. But if an employer lives up to that billing and an employee nonetheless fails to use proper equipment or otherwise ignores firmly established safety measures, it seems unfair to hold the employer liable. To address this dilemma, both the Occupational Safety & Health Review Commission and courts have recognized the availability of the unforeseeable employee misconduct defense.

The OSHA Field Operations Manual provides that to establish this defense in most jurisdictions, contractors must show all the following elements:

  • A work rule adequate to prevent the violation;
  • Effective communication of the rule to employees;
  • Methods for discovering violations of work rules; and
  • Effective enforcement of rules when violations are discovered.

Work Rule

At a minimum, a contractor will need a companywide safety plan.  If there is certain conduct that requires heightened safety, specific safety rules should also be implemented.


Contractors must also train its employees on its safety plan.  It is equally important to document that training, such as through a sign-in sheet for all attendees.  And, keep a copy of the presentation handouts.

Safety Compliance Inspections

Contractors must also make efforts to discovery safety violations.  This may be through a safety manager conducting safety compliance inspections. Again, these inspections must be documented, such as on a daily report.


Contractors must be able to prove that they enforced the safety rules, such as through a progressive discipline policy.  And, like a broken record, contractors must have documentation showing that they disciplined employees or subcontractors for violating safety rules.

Take Away: The unpreventable employee misconduct defense is an effective tool to defend against OSHA citations, but contractors must lay the groundwork well ahead of time to show that they have a safety plan, that they provide training on that plan, monitored safety practices on the job site and disciplined those that failed to abide by it.