Unpreventable Employee Misconduct (UEM) as a Defense

Unpreventable Employee Misconduct, or UEM, is a common defense tactic used by employers who are attempting to contest or defeat citations that have been issued by OSHA as a result of a workplace inspection. UEM is a credible defense, but only when the employer has a history of enforcing it's safety rules. Let's talk a bit about UEM.

Unpreventable Employee Misconduct is a relatively simple concept; An employer has a safety program, it's employees are trained to understand the hazards and requirements, and the employer enforces their safety policies strictly via a clearly outlined progressive discipline system, however, an employee chooses to violate the safety rules while no supervisors are present and that is the result of the injury / fatality / citation in question. It's basically the employer's only opportunity to say "hey, we had no idea this person was violating the rules because we do lots of auditing and we always hold people responsible".

This defense very rarely succeeds in courts or before the Occupational Safety and Health Review Committee because the employers in question are unable to prove that they regularly enforce their safety rules. Let's take a look at a case from Illinois, Secretary of Labor v. Stark Excavating, Inc. Stark is a large excavating and infrastructure contractor based out of Central Illinois. The case in question results from a series of worksite inspections that occurred during the summer of 2008. During the inspections in question, an OSHA Compliance Safety and Health Officer found workers at both sites working in trenches without adequate safety systems, sloping or benching in place.

While the case was before the OSHRC, Stark attempted to use the UEM defense, filing that their employees were trained properly, and they regularly disciplined employees who violated safety rules. When asked to provide records of warnings and discipline issued to employees in the previous 24 months, it was determined that only two supervisors issued written warnings (Stark calls them "Safety Tickets" in their written program) in the first month after the policy was instituted, then no other tickets were issued in the following 22 months on any of the approximately 250 job sites Stark had operated in that time period. When foreman and superintendents were interviewed, the almost unanimously agreed that they preferred to issue "verbal warnings" instead of Safety Tickets, even though the policy required a written warning to be issued.

The court determined that Stark failed to meet it's burned of proof for unpreventable employee misconduct because they were unable to demonstrate that they regularly held their employees accountable for violating their safety policies. When an employer attempts to use the UEM defense, they must be able to prove that they regularly hold employees accountable whenever they violate safety policies, including termination of employees who habitually violate safety rules.

If you are going to attempt to use the UEM defense in a case involving OSHA, you must have a documented, proven history of disciplining employees for failing to follow your organization's safety rules. If you don't have a written safety program that includes clearly outlined progressive discipline, we can help! Call us today for a free evaluation of your safety program.