Why Is Common Sense So Uncommon?

Don’t get me wrong. I make a handsome living in part because common sense is anything but common. However, I like to prevent labor and employment problems, and I’d do anything to reduce the number of workplace deaths.  So I chew on this question a great deal … like June 3 as I flew 16 hours to Africa,  fueled by a surprisingly good Bordeaux.

I’ll leave the thoughtful psychological, sociological and anthropological analysis to more thoughtful people than me. I’ll settle for just throwing out some examples of where common sense may be as elusive as the African Honey Badger, and how to address that absence.

1.  Stop … consider what safety hazards are presented by the next task … and act accordingly. If every worker consistently took this approach, we would have far fewer injuries and deaths, and I would have to get an honest job.

2.  Safety must continuously be reinforced or we will become complacent and cut corners. I have repeatedly seen employees nonchalantly take unreasonable risks less than six months after they were emotionally torn apart by the death of a co-worker. Provide the detail on confined space entry and site-specific fall protection, but also build this simple “pause and think” mindset into employees.

3.  Perhaps we could obtain more commitment to doing the required Job Safety Analysis if employees understood that JSA’s or site hazard assessments are simply a way to give them the necessary information to make wise decisions.

Moreover, even if one is a construction employer working under the broad requirements of 1926.20 and 21, or if Fed-OSHA’s “I2P2”becomes law, it is impossible to develop a written procedure for every work eventuality. Workers must be taught to always pause and conduct their own quick JHA.

4.  This informal ongoing job hazard analysis is especially vital for the remote worker or employees delivering ready mix concrete or working on an isolated HVAC system where no supervisor or safety professional is present to review the site for hazards and instruct them in avoidance. Perhaps require them to conduct a hazard analysis on their tablet before proceeding. Sure, employees can still pencil-whip such an electronic form, but at least it may make them pause and think. On a pragmatic level, an employer cannot escape their duty to ensure their employee is safe even where the employee is working alone on another employer’s site, and such a procedure may be documentation of the employer’s reasonable diligence.

5.  Know where to stop … even better, don’t start. Employees are going to engage in teasing and coarse humor at work, especially in construction or other hot tough work settings. Guys, let’s be honest. If we don’t tease a male co-worker, we probably don’t like them or know them well. Sadly, it’s how we relate to one another. I’m more worried by the teasing than by the cursing and off-color jokes. When you read about a heterosexual construction worker suing for same-sex harassment because co-workers endlessly teased him about being a “faggot,” etc., you can assume that this was a gradual process. The teasing was probably never welcome or funny, but it escalated to the point that when the behavior is described to a jury, no defense of “you had to be there” or “boys will be boys” will save the employer. I don’t believe that even those outrageous recent cases where coworkers called an employee a N***** began with such outrageous behavior. Nope. The morons worked their way up to that level of bad behavior.

The moral of the story? Train supervisors to stay on top of horseplay and teasing. Employees don’t need to whine about “PC” restrictions. Teach them to exercise uncommon sense and not allow teasing to escalate.

6.    E-mails and electronic communications. We could blog for hours on this topic, so let’s  keep it simple. Teach employees that e-mail is NOT voice mail or a telephone conversation. E-mail lives forever and is subject to endless misunderstanding. Moreover, e-mail is tone-deaf. How often have you received a terse e-mail from someone and decided that they are a jerk … and later learned that they were a nice person who was oblivious to how their e-mails sounded?

So tell employees and supervisors that (1) some communications must be oral, and (2) pause and think about how that e-mail might be (mis) interpreted. Frankly, we should type e-mails as if they might later be exhibits in a lawsuit … because they might be. As a personal discipline, I use my work e-mail for personal communications because it reminds me to never type something that I would be uncomfortable if the firm chairman were monitoring my e-mails (which knowing my buddy, Roger, he well might be!). Also, tell employees to adhere to that old admonition to let an angry e-mail sit overnight before sending it.


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
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