“One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted; and a community is infinitely more brutalized by the habitual employment of punishment than it is by the occasional occurrence of crime.”
- Oscar Wilde[1]
10.1 Overview
With all the EHS regulations, requirements, policies and procedures, comes the question of what to do if someone does not comply. Many of us might not like disciplining or implementing corrective action with employees for EHS issues and this may even be considered a controversial issue in the EHS realm[2]. One controversary involves differentiating between blame versus discipline: Discipline implies correction and punishment implies malice[3]. Todd Conklin, the Senior Advisor for Organizational and Safety Culture at Los Alamos National Laboratory, has discussed the issues with the commonly used “blame, shame and retrain” discipline concept[4].
In addition to punishment and deterrents, there are other reasons to take corrective actions with employees: Taking corrective actions with employees can protect you and company leadership from criminal prosecution and it can provide a defense against Occupational Safety and Health Administration (OSHA) citations.
Occupational Safety and Health Administration (OSHA) can still cite companies for a safety violation if an employee chooses to ignore safety programs even if you have effectively conveyed and enforced safety and health requirements. The “Unavoidable Employee Misconduct” defense may be used in these situations[5]. In order to use this defense, your company has to show that they effectively enforced safety or health programs and work rules by taking corrective actions with employees (i.e., in addition to other requirements such as a safety and health program, work rules, effective training, etc.)[6]. This defense can also be used with supervisors, but this would require similar disciplinary action for supervisors[7]. You would need to be able to show documentation of verbal or written actions given to employees for past violations. This documentation may reside with human resources personnel, so you may need to touch base with them to see if or what documentation they maintain.
The Department of Justice (DOJ) has organizational sentencing guidelines that take into account EHS compliance programs[8]. Two elements of an EHS compliance program identified by the Department of Justice (DOJ) include:
- Due care in delegating substantial discretionary authority (i.e., you cannot put someone in charge who has a history of not complying with the policies and regulations)[9]
- Consistent enforcement of compliance standards including disciplinary mechanisms[10]
Without these EHS compliance programs, your company cannot only be found guilty of criminal offenses, but risk longer or more severe sentences and penalties. In regard to the delegation of substantial discretionary authority, you may not just need to discipline an employee, but also remove their authority or responsibility.
10.2 For Additional Information
- “The 5 Principles of Human Performance” by Todd Conklin, Pre-Accident Investigation Media, Santa Fe, New Mexico, 2019
- “Do Safety Differently” by Sidney Dekker and Todd Conlkin, Pre-Accident Investigation Media, Santa Fe, New Mexico, 2022
[1] Ranker website, quotes on punishment, accessed August 8, 2022 (https://www.ranker.com/list/notable-and-famous-punishment-quotes/reference)
[2] “Employee Safety Discipline Ain’t What It Used To Be: The Focus Is On “What Failed?” Not “Who Failed?” Industrial Safety and Hygiene News, November 1, 2018 (https://www.ishn.com/articles/109664-employee-safety-discipline-aint-what-it-used-to-be)
[3] “5 Principles of Human Performance” by Todd Conklin, PhD, Pre-Accident Media, Santa Fe, New Mexico, 2019, page 48.
[4] Ibid
[5] “Enforcement Policy Of Not Citing Employees For Violations For The Safety And Health Standards” Letter from Gerard F. Scannell Assistant Secretary Occupational Safety and Health Administration (OSHA) to Mr. Steven McWilliams, Executive Director National Association of Elevator Contractors dated October 5, 1990 (https://www.osha.gov/laws-regs/standardinterpretations/1990-10-05)
[6] “How To Create How To Create Unavoidable Employee Misconduct Defense To Osha Citations“ by Mark A. Lies II, Seyfarth Shaw LLP Attorneys Optimum Articles website (http://www.oshasafetymanagement.com/wp-content/uploads/2015/05/mark_a_lies_-_unavoidable_employee_misconduct_defense_to_osha_liability_-_ch1-11013557-v1.pdf#:~:text=unavoidable%20employee%20misconduct%20could%20not%20be%20utilized.%20Fortunately%2C,is%20the%20supervisor.%20The%20defense%20will%20be%20more) Accessed December 18, 2021
[7] “How To Create How To Create Unavoidable Employee Misconduct Defense To Osha Citations“ by Mark A. Lies II, Seyfarth Shaw LLP Attorneys Optimum Articles website (http://www.oshasafetymanagement.com/wp-content/uploads/2015/05/mark_a_lies_-_unavoidable_employee_misconduct_defense_to_osha_liability_-_ch1-11013557-v1.pdf#:~:text=unavoidable%20employee%20misconduct%20could%20not%20be%20utilized.%20Fortunately%2C,is%20the%20supervisor.%20The%20defense%20will%20be%20more) Accessed December 18, 2021
[8] “Evaluation of Corporate Compliance Programs” by U.S. Department of Justice Criminal Division, Introduction page 1, Updated June 2020 (https://www.justice.gov/criminal-fraud/page/file/937501/download),
[9] “An Overview of the Organizational Guidelines” by Paula Desio, Deputy General Counsel, United States Sentencing Commission, page 1 (https://www.ussc.gov/sites/default/files/pdf/training/organizational-guidelines/ORGOVERVIEW.pdf)
[10] “At Large: Is This the Most Important Change in The Department of Justice (DOJ)’s New Guidance?” FCPA Blog by Richard L. Cassin, June 4, 2020 (https://fcpablog.com/2020/06/04/at-large-is-this-the-most-important-change-in-the-dojs-new-guidance/#:~:text=Since%202004%2C%20the%20federal%20sentencing%20guidelines%20have%20said%3A,guidance%20cites%20the%20call%20for%20consistency%20in%20)
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