Why Safety Requires Consistent Discipline

Howard Mavity, Fisher and Phillips LLP

An effective safety process requires consistent discipline to support other company safety efforts, but it doesn’t always happen.

The Occupational Safety and Health Administration (OSHA) is aggressively suing employers for allegedly using safety rules to terminate employees for reporting workplace injuries. In fact, it often turns out that the only employees terminated for safety violations were those terminated for unsafe behavior after an injury. Why? The employer was sloppy about disciplining employees for unsafe behavior, and the only time the employers “caught” employees acting unsafely was when investigating the injury.

Employers seldom successfully assert the "unpreventable employee misconduct/isolated incident" affirmative defense to employee OSHA violations because they cannot prove they manage an effective safety program that includes documented safety rules or procedures, proof that the employee was trained, evidence of the employer’s efforts to monitor and enforce the safety program, or past discipline for unsafe behavior (more than a verbal warning).

Employers generally cannot show the element of regular safety-related discipline. Even the most safety-conscious employers admit that they don’t adequately use discipline. Fisher and Phillips' 2012-2013 survey of large general contractors with some of the nation’s best safety programs revealed that 56 percent were "not satisfied by how often supervisors discipline employees for unsafe behavior."

To give you an idea of just how well these respondents are doing in other more costly safety efforts, consider the following survey results:

  • 43 percent provide 30-hour OSHA training to more than 75 percent of supervisors.
  • 59 percent formally include safety in executive performance evaluations.
  • 61 percent use observation systems requiring supervisors to make regular observations of compliance and non-compliance.

So, over half of some of the most safety-oriented employers admit that safety-related discipline is not where it should be. Why is this? Various surveys list one of the following reasons why supervisors do not discipline employees:

  • Supervisors are afraid they will get their employers in trouble.
  • They haven’t been trained and don’t know how.
  • They came up through the ranks.
  • Discipline is only discussed when something bad happens, like a lawsuit.

Another question from Fisher and Phillips’ survey supplies a partial answer as to why most companies make almost no consistent effort to train supervisors on when and how to discipline employees. The question was "How often do you provide 'HR' training to frontline supervisors?" The results were:

  • Rarely — 37 percent
  • Occasionally — 25 percent
  • Annually — 22 percent
  • More than once a year — 7 percent 
  • We have a formal supervisory program or company "university" — 7 percent 

So only 7 percent maintain a formal supervisory training program, and another 7 percent provide HR-training more than once per year. I believe these results make it clear as to what action the majority of companies need to take in order to achieve a more effective safety program.  

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About the Author

Howard Mavity has practiced law for nearly 30 years and is the founder of the Fisher and Phillips Workplace Safety and Catastrophe Management Practice Group. He has exte...