Workplace liability: Traps, pitfalls and landmines
October 3, 2007
When I was a kid, my mother sent me out the door to play with the admonition to stay out of trouble. Today, in a workplace filled with traps, pitfalls and legal landmines, that advice still holds. The situation is not dire, of course. Much of the trouble we face can be easily avoided with knowledge, ethics and a modicum of legal savvy. After 38 years in the corporate and consulting safety business, it’s time to share some wisdom acquired from mistakes and observations.
Workplace liability can come in many forms. I’m not an attorney and don’t play one on TV or at work, so I’ll leave the legal definitions of liability to the lawyers. As a safety practitioner, I’m most concerned with practical liability that results in loss of trust, income, employment, reputation and similar causes of sleepless nights. Here are my tips for limiting liability:
1) Know your profession
The vast majority of safety people I know are part-timers. They have multiple job duties and a very limited background in safety and health. But even full-time safety practitioners can find themselves outside their comfort zone quickly. Avoid areas you don’t know. Faking it in the face of safety regulations and best practices with lives at stake doesn’t work. Study, take classes, call for help, hire a consultant or bring in the OSHA consultation service.
2) Know your organization
Safety is driven by the culture of the organization and if that culture does not value safety, you’re facing trouble every day. I see two choices: change the culture or change your job.
3) Leave management’s responsibility with management
Management runs the company and that includes safety. As a safety practitioner, your job is to coach management, not assume their job. On inspection tours, teach them to be better observers, have them take the notes (since they need to take the corrective action). Get them into the classroom and out on the plant floor where they can provide essential leadership.
4) Adhere to a code of ethics
Increasingly, business ethics are under the gun and expectations are high. In the safety business, credibility has long been a critical component, and that comes from doing the right thing every time. The American Society of Safety Engineers (ASSE) holds its membership to a Code of Professional Conduct. You’ll find it at www.asse.org/about/conduct_code.php and you can follow it even if you are not an ASSE member.
5) Support positions with facts
We sometimes hear people say that safety is just “common sense.” That’s wrong. Safety comes from standards, facts, and research that increasingly question many of the old assumptions. Do your own research in-house, read professional journals, check the OSHA web site at www.osha.gov and check your facts before you state a position. If it’s opinion, say so.
6) Use disclaimers
If you write books or training materials, include disclaimers. In most cases, you have no control over how the material will actually be applied, so make it clear that you are not assuming the user’s liability by making the information available. Also advise users to check OSHA standards and publicly available resources for changes or updates since the material was produced.
7) Respect the rights of others
If someone else came up with the idea or solution, give credit. If you use copyrighted material, get written permission first and always give credit. In the case of many standards and nearly all films and videos, manuals, computer programs and training materials, permission also includes paying for rights. Copying and unauthorized use is theft, not “fair use.”
8) Watch classroom conduct
Safety folks spend a lot of time in the classroom and your students see and hear more than your words. They are deciding if they can trust you. So, don’t argue. You’re the authority figure in the classroom and the authority figure rarely wins in a fight with the little guy. Don’t tell jokes. Most of them these days will be offensive to someone and it’s not worth the risk. Do be thoughtful and considerate and patient and you’ll win their trust. That’s what counts.
9) Say “I’m Sorry”
Sometimes, we get it wrong. While the common advice where injury or harm results is to avoid admitting liability, my experience is that a sincere apology goes a long way toward making things right. Having said that, I am also compelled to advise you to talk with your attorney or insurance carrier for their counsel.
10) Trust your gut
If it doesn’t feel right, it’s probably not. If you hear a little voice saying â€” “I’m uncomfortable“ â€” stop and think the situation through before committing. As a consultant, I’ve walked away from several jobs where my instinct told me no good could come from the relationship.
11) Read contracts
This is a big one. Contracts can place requirements on you over which you have no control. For example, a common element of a number of recent contracting and consulting contracts is the indemnification and hold harmless clause. Essentially it requires one party (such as the safety practitioner seeking work) to protect and defend the other party (such as the large corporation or government entity). In the Summer 2003 issue of the ASSE consultants newsletter, The Advisor, attorney Larry Hoellwarth writes of an EHS pro signing an “open purchase order” for $30,000 to conduct part-time inspections of a major bridge construction project in Chicago. Hidden on the back of the contract in very fine print was an indemnity clause that kicked in when workers who fell from a man-lift sued the general contractor for millions. The consultant found himself alone defending the contractor and the State of Illinoisâ€”and he had nothing to do with the man-lift operation.
If you are an employee, not a consultant or contractor, the indemnity clause can impact you in other ways. Ithaca (NY) attorney Emerson Mitchell tells us that employees are protected from suit except for willful and gross negligence, so you’re off the hook. But he also says the issue comes down to “a matter of trust.” Imagine trying to bring a top safety consultant into your organization with an indemnity clause in your contract? It’s likely to be very difficult. Try building trust with such a lopsided contract. Chances are that you will be left with the less savvy choices who don’t read contracts or don’t understand what they are reading.
Mitchell’s advice? “Don’t sign it!” Remove the clause if you can, an approach I used successfully when doing a safety conference for a mid-western state. In the case of a project developing some course materials for a major southern state university that had an indemnity clause tucked in their fine print, they didn’t budge and I took Mitchell’s advice and didn’t sign. Some fine work went down the drain, but I slept much better after that.
I’m sure you know other ways to get into trouble, but whatever the way, your defense is most likely to be your knowledge, honesty and ethics, acting in good faith, and calling your attorney when your gut instinct says it’s time. Make Mom proud.