Discipline for Unsafe Practices Betsy Reeve Reeve Shima PC, (206) March 18, 2015 ©

Scenario: Employee does something unsafe. It gives you pause. You think he shouldn’t have done that; there must be rules against that. You think, “That’s his third injury in three years.” What can an employer do?

The Role of Safety.  To protect the employee  Protect co-workers  Protect students  Protect the public

Financial Implications.  Claims costs.

Financial Implications  Workers’ Compensation Claims:  Average cost of a time loss claim for state fund claims in FY 2014:  $70,900  Average cost of a pension claim:  $792,000 (1.2% of claims)  Self-Insured Claims: 13,027 claims  Medical cost growth as of 12/31/14: 3.1%

Financial Implications  Liability to third parties.  Loss of productive time.

Financial Implications  Decreased student learning  Due to absences of teachers and paras.  Safety citations from WISHA.  Employee Misconduct defense to a safety citation depends upon prior discipline for safety violations.

Financial Implications  Safety citations from WISHA.  Employee Misconduct defense to a safety citation depends upon prior discipline for safety violations by the employer.  Requirements for the affirmative defense of unpreventable employee misconduct include:  (4) Effective enforcement of its safety program as written in practice and not just in theory.  RCW

Communicate Safety Expectations. Discipline rests upon fairness as well as the law.

Communicate safety standards. “In order to establish the affirmative defense of unpreventable employee misconduct, an employer must show that it has established work rules designed to prevent the violation, has adequately communicated these rules to its employees, has taken steps to discover violations, and has effectively enforced the rules when violations have been discovered.”

Employers’ general safety responsibility. “To provide a safe and healthy workplace free from recognized hazards.” WAC

Employee Responsibilities: “To play an active role in creating a safe and healthy workplace and comply with all applicable safety and health rules.” WAC

Employees’ Responsibilities. Employees must: Study and follow all safe practices that apply to their work. Coordinate and cooperate with all other employees in the workplace to try to eliminate on-the-job injuries and illnesses. Apply the principals of accident prevention in their daily work and use proper safety devices and protective equipment as required by their employment and employer.  WAC

Employee Responsibilities. Employees must: Report promptly to their supervisor every industrial injury or occupational illness. Not remove, displace, damage or destroy or carry off any safeguard, notice or warning provided to make the workplace safe. Not interfere with use of any safeguard by anyone in the workplace.

Not interfere with the use of any work practice designed to protect them from injuries. Do everything reasonably necessary to protect the life and safety of employees. WAC

Applicable Safety Regulations. Chemicals Exit Routes Hearing Loss Asbestos Machine safety & guarding Ladders Storage areas Electrical Bloodborne Pathogens

Safety Standards.  General safety standards.  Specific safety standards.

Example – Lost time Injuries to janitors  40% - Eye irritation or burns  36% - Skin irritation or burns  12% - Breathing chemical fumes  12% - All other

Example - Driving  In 2009, there were 1663 worker compensation claims where workers were injured in highway accidents. Costs for these claims was $20 million.  Basic rules to follow per Dept of Labor & Industries website:  Wear seatbelts  Drive the speed limit  Obey traffic signs and stop lights  Use turn signals  Do not tailgate  Do you discipline an employee who receives a traffic ticket while working?  Do you have a policy that requires reporting tickets received while working?

Unsafe Practices. Besides disciplining for violation of a specific safety standard, can an employer discipline an employee due to lack of common sense?

Examples of Unsafe Practices. Measure the factual situation against an employee’s responsibility to “follow all safe practices that apply to their work.” Notice that it does not state apply all safety regulations (specific standards) but simply “safety practices.”

Examples:  Conveyor  Use of chairs  Lights

Safe or unsafe practice?

 PICTURE

Water on Floor  Safe or unsafe practice?

Puddle located where person is standing

Can an Employee be Disciplined For Not Following Safe Practices? Answer: Yes Definitely IF district sets up company rules and Probably IF the district sets up an expectation of compliance with safe practices. Gardner v. Loomis Armored Car

Expectations How can an employer set up safety expectations? 1.Safety Rules 2.Personnel policies; 3.Notices on Employee Incident Reports; 4.Posters emphasizing safety; 5.Provision in performance evaluations regarding compliance with safety practices.

6. Direction by supervisor. 7. Instruction in staff meetings – local schools, district, ESD. 8. Department of Labor & Industries website training 9. Accident Prevention Program  Court: “there is no mention of any disciplinary process in the accident prevention program.”

Constraints on Discipline. 1.Union contracts. A union contract must not be breached. Most CBA include provisions regarding when discipline can be imposed.

Constraints on Progressive Discipline. 1.Union Contracts Many union contracts require “just cause” for discharge and/or discipline. Many union contracts include progressive discipline steps.

Union Contracts and Just Cause. Does violation of a safety regulation or failure to follow a safety rule constitute “good cause” for purposes of discipline? Yes.

Constraint on Discipline: Personnel Manual. If a personnel manual contains a promise of specific treatment in a specific situation, the manual creates an implied contract. An employer can be liable if it breaches that contract.

Constraints on Discipline: Personnel Manuals. Use of disclaimers:  Disclaimer language: COUNTY POLICIES AND PROCEDURES INCLUDED IN THIS MANUAL DO NOT CONSTITUTE A CONTRACT WITH EMPLOYEES, nor do they promise continued employment. The County reserves legal right to recruit, select, direct, discipline and discharge employees and exercise full discretion over the organization's policies, procedures and performance of work.  The “Statement of Purpose” section also provides, “It is not the intent of this manual to establish promises of specific treatment.”

Use of disclaimers:  Court: “….documents stated that they did not constitute a contract or contractual obligation, and that employer reserved right, in its sole discretion, to amend, modify, or discontinue its use without prior notice, notwithstanding any person's acts, omissions, or statements to the contrary.”

Examples of CBA Progressive Discipline Provisions.  The District has the right to discipline, suspend, or dismiss for just cause. Prior to instituting progressive discipline steps, the District will have made a reasonable attempt to counsel with the employee and to clarify job expectations.

Examples of Collective Bargaining Provisions of Progressive Discipline.  The University shall apply where appropriate the principles of progressive discipline which include, but are not limited to, the following steps: verbal warning, written warning, suspension without pay and, finally, discharge. The University will not be required to apply progressive discipline where the nature of the offense calls for immediate discharge or imposing discipline without progression.

Examples of CBA Progressive Discipline Provisions.  Court: “… although documents stated that management would generally follow progressive discipline, they did not contain any promise that progressive discipline would be imposed, vested ultimate discretion in employer as to how investigations would be carried out and as to what discipline would be imposed, and specifically cautioned that progressive discipline would not be used when employee misconduct was sufficiently serious.”

Example of Personnel Policy incorporating Progressive Discipline  The stages of the disciplinary procedure are set out in four steps: (1) a verbal request for a correction of unacceptable on-the-job practice,” with a memo documenting the discussion; (2) a written warning when the offense is serious or the oral warning has been ineffective; (3) an investigative suspension; and (4) dismissal. Step 4 adds, “In the event of [an] extremely serious offense, i.e., theft, violence, or gross insubordination, it may not be necessary and appropriate for the Mayor to use all or part of the initial stages of the procedure.

Constraints on Discipline: Worker’s Comp Discrimination. 1.An employer may not discharge or discriminate because an employee has filed a worker’s compensation claim. 2.“Nothing in this section prevents an employer from taking any action against a worker for other reasons including, but not limited to, the worker’s failure to observe health and safety standards adopted by the employer, or the frequency or nature of the worker’s job-related accidents.” RCW

Constraints on Discipline: Worker’s Comp Harassment. Robel v. Roundup case.

Constraints on Discipline: Worker’s Compensation Harassment.  No teasing or taunting.  No reenactment of injury in condescending manner.  Discipline should be professional.

Constraints on Discipline: Disciplinary Interview. If employee is a union member, have union representation present.

Role of Safety Committees.  They can help identify employees who have engaged in unsafe practices.  Decision-makers should receive copies of Minutes of every Safety Committee meeting.

Role of Safety Committees.  Safety Committee can help identify trends that may be peculiar to the District or School.  Once trend is identified, employees can be educated about what safety practices to follow to prevent those unsafe practices. Then, if an employee fails to follow that safety practice, discipline can be imposed.

Role of ESD Programs.  ESD Central Safety Committee.  Safety investigation.  Accident prevention.  Job shadow.

Timing of Discipline.  Impact of sympathy for a hurt employee who violated safety standard.  Collective Bargaining Agreements may require immediate discipline. Example: “Within ten days of event giving rise to discipline or within ten days of that District reasonably should have known of the event.”

Timing of Discipline.  Consider delaying disciplinary discharge until injured worker returns-to-work after an injury – Glacier Northwest case.

Prior to Discipline:  Check union contract. Specific constraints may apply, e.g. first counseling the employee before imposing discipline.  Check personnel manual.  Check for any prior discipline for any reason.  Decide whether to request accident investigation internally or by ESD or both. Might help establish the existence of an unsafe practice.

 Review any Safety Committee reports.  If the unsafe practice resulted in a worker’s compensation claim, ascertain whether ESD took a recorded statement from the injured worker. Review that statement.  Make sure that discipline is not being imposed because the worker filed a worker’s compensation claim or expressed an intent to file a claim.

Prior to Discipline  Be able to identify the unsafe practice, citing either a safety regulation or district safety rule or description of how the employee did not follow a safe practice that applies to his or her work.  If this is the last progressive disciplinary action & it will result in termination, consider consulting with an attorney first. Does it constitute sufficient cause?

Disciplinary Process:  Determine who will be present during the disciplinary interview.  Have union representative present if employee is a member of a union.  Consider having another witness for the school district.  Comply with normal disciplinary practices.  Explain that discipline can be imposed for failing to follow safety rules and practices. The law requires that employees must “study and follow all safe practices that apply to their work.”

 Explain clearly what the unsafe practice was. Do not tie the unsafe practice to any resulting injury. Discipline is being imposed for the act of the unsafe practice, not for the injury.  If this is not the first time the person has engaged in unsafe practices but has not been disciplined before, this will be the first step of progressive discipline but you can reference past unsafe practices. Explain, though, that this discipline is being imposed for a specific unsafe practice on a specific date.

 Document the conversation.  Document the discipline. If it is a verbal warning, just document the verbal warning. If it is a written warning, provide a copy of the written warning to the employee to sign.  Include the formal disciplinary notice in the personnel file.

Any questions? Elizabeth K. Reeve Reeve Shima PC (206)