OSHA: Don’t Get Caught in the Trap of Rewarding Employees for Reducing Recordables!
Date: September 10, 2012
By Howard MavityFor several years, we have encouraged employers to move away from safety management programs that primarily track the program’s effectiveness based upon recordable injuries and utilize monetary incentive programs based in whole or in part on the number of recordable workplace injuries and illnesses experienced by an employee or group of employees.
However, employers have another reason to increasingly shift away from programs primarily driven by recordables. Even before the current administration’s leaders took office, they questioned the accuracy of employer recordkeeping and asserted that employees underreport workplace injuries in order to participate in safety incentive programs, or as a result of pressure imposed upon them by employers either on an intentional basis or as a result of their safety management processes.
Moreover, all branches of the U.S. Department of Labor steadily have escalated their emphasis on the prosecution of whistleblower claims. OSHA and other federal agencies actively have encouraged employees to be sensitive to possible retaliation and discrimination on the basis of protected behavior, including safety-related activities (especially the reporting of recordable injuries). Numerous decisions have come out in the last few years in which OSHA claimed that employers who discharged employees for safety violations associated with injuries were using “safety violations” as a pretext for retaliation.
We hardly need another reason to encourage clients to review and revamp incentive programs or be wary of increased risks associated with whistleblower claims, but these developments certainly increase the sense of urgency.
This article appeared in the September 10, 2012 issue of EHS Today.
I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues.
Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession.
I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors.
I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values.
Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral.
As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC