Discipline Is Essential For Safety, So Why Don’t We Do It?

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

OSHA is aggressively suing employers for allegedly using safety rules to terminate employees for reporting workplace injuries. Indeed, it often turns out that almost the only employees terminated for safety violations were those terminated for unsafe behavior resulting in an injury. Why? The employer was sloppy about disciplining employees for unsafe behavior, and the only time that the employer “caught” employees acting unsafely was… investigating an injury.

Employers seldom successfully assert the “Employee Misconduct/Isolated Incident” affirmative defense to employee OSHA violations.  Why?  The employer cannot prove that they manage an effective safety program, including:

• documented safety rule or procedure;
• proof that the employee was trained;
• evidence of employer’s efforts to monitor and enforce the safety program, AND . . .
past discipline for unsafe behavior (more than an oral warning or chewing-out).

You guessed it. 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

F&P’s 2012-2013 survey of large general contractors with some of the U.S.’s best safety programs revealed that 56% 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,

43% – provide OSHA 30-hour training to over 75% of supervisors
59% – formally include safety in executive performance evaluations (wow!)
61% – use observation systems requiring supervisors to make regular
observations of compliance and non-compliance

So, over one-half of some of the most safety-oriented employers admit that safety-related discipline is not where it should be.


Various surveys list one of the following reasons why supervisors do not discipline employees:

the supervisor is afraid that 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 F & P’s Survey supplies a partial answer… most companies make almost no consistent effort to train supervisors when and how to discipline employees.

Our Survey asked… “How often do you provide “HR” training to frontline supervisors
(i.e. How to discipline employees)?”

37% Rarely

25% Occasionally

22% Annually

7% More than once a year

7% We have a formal supervisory program or company “university”.

So only 7% maintain a formal supervisory training program and another 7% provide HR-training more than once per year.

I believe that the Action Points are pretty clear for this Blog.


About mavity2012

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
This entry was posted in discipline and discharge, employer policies, OSHA, reducing injuries, whistleblower/retaliation, workers comp and tagged , , . Bookmark the permalink.

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