Worker Killed by 'Classic Employee Misconduct'I've already written about the trench collapse death of William Steadman, 37, who died in a trench collapse on Dec. 15. I noted then that this this was an example of "blame the worker" theory of occupational safety.
"We told him not to climb into that trench."
"We told him not to climb down into that sump."
"We told him not to stick his head in that machine to clean it out."
In this case, the attorney representing Steadman's employer claims that
"None of them were told, 'You go down and dig that trench.' ... Nobody was forced or coerced into doing it. That's not how this company works."This means, according to Washington D.C. employer attorney Baruch Fellner*,
depending on the circumstances, the employer could be free of blame. It is, Fellner said, the "classic employee misconduct defense."According to OSHA, the employer is responsible for providing a safe workplace. It generally doesn't matter whether the worker was ordered into an unsafe situation, whether he or she was allowed into an unsafe situation, or even if written procedures were violated.
In other words, Fellner said, if an employee decided to disobey the explicit instruction of an employer, the employee could essentially be responsible for his own misfortune, even if the employer did not follow every OSHA regulation.
The so-called "classic employee misconduct defense" has been rarely applied when the employees have been trained appropriately, when every effort was made to eliminate or control the unsafe environment, when following safe working procedures was something the employer actively encouraged, and when disobeying safe procedures was something the empoyer actively discouraged, and all of the training, encouragement and discouragement were well documented.
This isn't even close to the situation that killed Steadman.
According to this article
Steadman was one of several employees at American Contracting Enterprises Inc. of McKees Rocks, an asbestos remediation firm, who offered to dig the trench for their boss, Dennis Jackson, according to Smith.They hadn't been trained and there was no safety equipment. Almost nothing in OSHA's trenching standard had been followed.
They were trying to track down the source of a stopped-up toilet by uncovering a sewer pipe.
Authorities at the scene said the trench did not have any safety features or supports typically used to shore up walls during such excavations.....
[The employer's attorney Templeton] Smith could not provide any specifics about the conversation between Steadman and Jackson about staying out of the trench other than to say it took place the day before the collapse.
Workers at the small company were not specially trained in trench-digging. They were told to use the backhoe and to keep out of the trench. They did not express any concerns about safety, Smith said.
Just telling someone not to go down into a trench (allegedly) the day before the trench is dug doesn't come close to "classic employee misconduct," nor does the fact that the employees weren't "ordered" to go down into the trench, nor does the fact that the employees didn't express any concerns about safety.
This is why OSHA standards require substantial amounts of training -- so that knowledgable workers will express some concern before entering unsafe situations.
There is little doubt here that the employer will at some point be found at fault and fined by OSHA. But the impression will be left by the attorneys and by this newspaper headline: "Lawyer says worker was told to stay out of trench," that if this poor dumb guy hadn't been so stupid, he'd be alive today.
*Fellner, a partner at the lawfirm Gibson, Dunn & Crutcher, was one of the lead attorneys opposing the federal OSHA ergonomics regulation as well as the recently suspended ANSI ergonomics standard. He was also active in the campaign against the Washington State ergonomics standard.