Terminating Unsafe Employees Presented by Mary E. WrightOgletree, Deakins, Nash, Smoak & Stewart, PC 415.536-3431 firstname.lastname@example.org
Employer’s DutyTo maintain & provide:A safe working environment.Safe systems of work.Facilities for the welfare of allworkers.Any information, instruction,training or supervision needed toensure workers safety.
Identify HazardsA hazard is anything with potential to cause injury, illnessor damage. Identified by:Observing Workers Tasks.Speaking to Workers.Using Safety Checklist.Review Manufacturers Info.View injury Records.
Assess the Risk A risk is the likelihood of a hazard causing injury, illness or damage to health.Assessed by:Potential Impact of hazard.How likely is the hazard to cause someone harm.
Reduce Risk Aim to remove a hazard completely. If this is not possible a ‘hierarchy of control’ exist. Eliminate the Hazard Substitute the Hazard. Isolate the Hazard. Use Engineering Controls. Use Administrative Controls (policies/procedures/training). Use Personal Protective Equipment.
Employee’s Duty Ensuring own personal health & safety, and that of others in the workplace. Complying with any reasonable directions given by management relating to health & safety.
Meet Jack The Accident Prone EmployeeJack Is Lazy.Jack Is Oblivious._______________Jack Thinks He Knows Better.Jack Is Angry.
What’s the Price forNot Knowing Jack?•U.S. Department of Labors OSHA proposes $138,500 in penalties against Cullman, Ala., metal fabricator for 31safety and health violations•U.S. Department of Labors OSHA proposes $65,450 in penalties for American Air Specialists of Mississippi forwillful and serious safety violations•U.S. Department of Labors OSHA fines Texas Linen Co. more than $149,000 for alleged safety and healthviolations•Broome County, N.Y., manufacturer faces additional fines exceeding $109,000 from U.S. Labor DepartmentsOSHA for recurring and uncorrected hazards•Human Toll: The Life, Health andWell-Being of Employees and Community•Reality Check: Low Morale, Job Loss, Bad Publicity, Consumer Backlash
Creating a Defense “Unpreventable Employee Misconduct” A violation of OSHA Regulations occurs. DOSH audits your company. No fine against the company if it can prove that the violation was the result of unpreventable employee misconduct.
DOSH Directive 5.10No citation may be issued under this section if there is unpreventableemployee misconduct that led to the violation, but the employermust show the existence of:(ii)A thorough safety program, including work rules, training andequipment designed to prevent the violation.(iii)Adequate communication of these rules to employees;(iv)Steps to discover and correct violations of its safety rules; and(v)Effective enforcement of its safety program as written in practiceand not just in theory. (copy of directive attached to handout)
How to Discipline Jackand Support a Defense Observe Report Investigate Discipline Terminate
Accident, Incident and Near Miss Accident: an undesired event or sequence of events causing injury, ill health or property damage. Near Miss: an incident, where given a slight shift in time or distance, injury, ill-health or damage easily could have occurred but did not this time. Incident: an unplanned, undesired event that hinders completion of a task and may cause injury or other damage.
Policy and ProcedureAny accident, incident or “near miss,” no matterhow slight the injury or damage, must be reportedto the department supervisor, safety warden orhuman resources representative for immediateaction.The supervisor or safety warden is responsible fortaking appropriate follow-up action, includinggetting medical attention, completing aninvestigation report and recommending orimplementing appropriate corrective action.
FIRST REPORT OF ACCIDENT, INCIDENT OR NEAR MISS Department Date Name of Employee Name of Departmental Supervisor Nature of Occurrence (A-I-NM) Why a Near Miss? Did an injury, illness or property damage occur? Any emergency action taken? Name of reporter.
PURPOSE To help identify the causes of an incident, accident or near miss. To prevent similar occurrence in the future. To initiate documentation of disciplinary action. To support required report to governmental agency. One person’s actions can jeopardize the safety of others in the workplace.
Be a Journalist Not a ColumnistWho WhereWhat WhyWhen How
Accident Investigation Name of Injured Employee Description of Injury or Illness Date of Accident (accident type, injury type and body part) Investigator’s name Contributing Factors Date of Investigation Description of Work Area Job Title Injured Employee’s Account Time of Accident Witness’ Account (Name, Title, Department address, phone number) Location of Accident Basic causes Name of Witnesses Corrective measures immediately Description of Accident implemented Task Being Performed Corrective measures to be Equipment, Tools, Personal implemented to prevent recurrence Protective Equipment, Procedures Being Used
Disciplinary ProgramA disciplinary program can be developed with t he assistance of the personneldepartment and your company’s counsel. The program can be effective foraddressing “repeat offenders” who often account for a high percentage of accidents,incidents and near misses.The nature of the disciplinary actionshould be in line with such factors as:
Getting Back to JackHypothetical 1: Jack is Lazy Acme manufactures paper products. Huge paper rolls are transferred from the manufacturing floor to the storage room by forklift. There is a lot of noise and significant levels of activity on the manufacturing floor. Employees who are not scheduled to work are not supposed to be on the floor. The manufacturing floor is set between the canteen and the break room. It is quicker to cut across the floor to get from the canteen to the break room (as opposed to walking around the outside of the building). Jack frequently cuts back and forth across the manufacturing floor on his break. Forklift drivers complain. Can the supervisor write Jack up for a safety violation?
Hypothetical 2: Jack is ObliviousJack attends safety training at Acme. He knows the rules butbelieves that they do not apply to him. One day, Jack is working byhimself checking inventory in the loading dock. He figures it is alrightto wear ear buds and listen to music even though he knows suchdevices are forbidden in the workplace. Jack does not hear the shiftchange buzzer and does not realize that forklift operators are nowremoving product from pallets stacked overhead. A pallet falls to theground next to Jack.The supervisor sees this and pulls Jack off the floor. He wants towrite the forklift operator up for the damage to the pallet. Can hewrite Jack up, too?
Hypothetical 3: Jack Thinks He Knows Better.Jack has accumulated years of seniority and beenthrough countless safety sessions. Acme operates adrill press. While helping an associate attach a pipe toone of the presses, rather than walk around themachine, Jack stretches across the machinesconveyor belt, which interrupts an infrared beam andcauses two probes to descend. The probes pin Jack’scolleague to the conveyor belt, causing non-lifethreatening injury.Management wants to fire Jack. Can they do so?
Handbook, Contract and Precedent What does Acme’s handbook say? What does Jack’s contract say? Is Acme a union shop? What does Acme usually do?
Hypothetical 4: Jack Is Angry.Jack was denied a promotion. He is resentful and angry.Jack, thinking only to cause a brief work stoppage, removesa nut here, a belt there from his machine. Finally themachine overheats and fills the work area with non-toxicfumes. The building is evacuated and the fire departmentdetermines the cause. A co-worker comes forward to reporthaving seen Jack remove the hardware from his machine.Management writes up the witness for not reporting theconduct in time to prevent the property damage, but theywant to fire Jack. Can they do so?
“CONFIDENTIAL: PREPARED AT THEREQUEST OF COUNSEL,” and give it to HR for storage in a confidential file. When should you hold the termination meeting? Where should the meeting take place? Who should attend the meeting? What to have ready when you go into the meeting. What to say in the meeting. Returning company property. Packing Up the employee’s personal stuff. Saying Goodbye to co-workers. Computer Access should be terminated. Severance by contract or in exchange for a release. Documentation of the entire process.