Employers long have appreciated that it is not enough to train their workers in safety rules. The rules must be enforced and, as infractions recur, enforced more severely. Because the employer bears the burden of proving the defense of unpreventable employee misconduct, the company must usually have some way of documenting its safety enforcement.

As I noted in my January 2006 article in EHS Today, "The Oft-Missed Step: Documentation of Safety Discipline," employers also must be able to retrieve that documentation. The article recommended that employers avoid scattering their disciplinary records among personnel files and instead or, in addition, maintain "a central file of employee violations and discipline, starting from oral warnings." As the article states, "Such a central file – especially if it is computerized – would eliminate the burden of going through every employee's personnel record or other scattered records to prove that enforcement occurred."

Recent decisions show what can happen when the above principles are followed and what can happen when they are not.

In Stark Excavating, Inc. v. Perez, 811 F.3d 922 (7th Cir. 2016), the U.S. Court of Appeals for the Seventh Circuit rejected the company's unpreventable employee misconduct defense. The company had safety rules, had communicated them to its employees and had monitored the worksite for compliance. It even had prescribed a progressive "compliance mechanism" if violations were found; it would issue "tickets" to employees who broke safety rules. This technique, the court noted with evident favor, "would facilitate effective enforcement of the safety rules by allowing the tracking of violations by particular employees especially when working for different foremen."

The problem was that the policy of issuing such tickets "was routinely disregarded." Although the company had issued some tickets to employees, two supervisors testified that "they never issued any safety tickets and preferred to verbally correct employees." The court did not explain why this was insufficient but, as my 2006 article observed, "verbal corrections" often do not amount to an oral admonition, the first step in a progressive disciplinary program. Moreover, even if they do, the lack of documentation of strictly "verbal" corrections would make it very difficult to ensure that future discipline would progress. Moreover, the court noted, company supervisors had undermined safety enforcement from the start by providing each other advance warning by radio when the corporate safety director was in the area conducting safety audits.

By contrast, the Occupational Safety and Health Review Commission a few days later vacated a citation where the employer not only did things right but could prove that it had done things right. The employer even had the central log of disciplinary actions advocated by my 2006 article.

In S.J. Louis Constr. of Texas, 25 BNA OSHC 1892, 2016 CCH OSHD ¶ 33,503 (OSHRC 2016), the employer had a "disciplinary log" showing that over the two-year period predating the OSHA inspection, it had "warned and suspended employees on dozens of occasions for safety violations…" The commission noted that the employer's log "tracks who was disciplined, the type of discipline, and whether it was a first, second, or third infraction," and that "none of the employees had more than two safety-related infractions." Most importantly, the log also showed that discipline did, in fact, progress when an employee committed a second infraction.

The commission therefore vacated the citation.