When Your Safety Program is on Display in Court

• By Joe Barnes
• Jun 22, 2021

The silence in the room is near deafening. A table full of attorneys feverishly read their notes. You sit at the end of the table, a microphone on your shirt. As you wait, the red light on the video camera across from you is bright. Staring at the light gives you little flashing floaters in your vision. You rub your eyes. The air conditioner is on but somehow it seems hard to catch a fresh breath. Then, the kind looking lady behind a mini typewriter asks you to raise your right hand. “Repeat after me”, she says. “Do you solemnly swear to tell the truth…...?” Then it begins. You are being deposed. The next step most likely will be your time in court playing word hockey with a talented attorney, highly skilled in the art of the interview.

There is no easy way around it; safety professionals are exposed to the legal process firsthand. Depositions and going to court are a reality. It’s unnerving. It’s uncomfortable. Like it or not, in the profession of safety, it is in your future. Over the last three years, I have served as the designated expert in more than 50 legal actions. From injured employees to OSHA challenges and more than my fair share of fatalities. My job is somewhat of an arm-chair quarterback to the accident that left someone maimed or dead.

Having served on both sides of the isle in legal actions and as a safety professional, I know the challenges leadership in EHS face. Simply put, I know where to look. My review and opinions of documentation assists the legal team in their application of the law. In all, I have seen the very best of safety and health programs and the very worst. When your company has an unfortunate event occur, I am the guy the other side hires to look at your program. I am methodical, I am professional, and as a matter of pride, I am thorough.

This article is written to share with my fellow safety professionals those issues which have been front and center in nearly every case I have reviewed. Most attorneys would not be happy with me sharing this much information, but I am first a safety professional. I truly believe that we can be leaders that prevent accidents from occurring. Like my mentor always told me, “Send them home the way they came to work.” I believe his admonition to be true. It is because of my personal beliefs I give you these 6 things I see routinely in failed safety programs. Note, these items are not written in any specific order. Secondly, none of these on the list are impossible or even expensive fixes.

1. The Commercially Produced Safety Manual

The first thing I always ask for in a case review is the written safety program. I look for an entity outside of the company that has written the safety document. If the document was produced outside of the organization, I know there is a great chance the company will lose in court.

For example, I reviewed a safety program produced by a safety manual mill. In the manual was the beautifully designed layout for landing helicopters. The problem? The company had nothing to do with helicopters. They found out about the landing zone requirements in their deposition. It was a bad day for them. There is nothing wrong with a commercially produced manual as long as you take the time to review and make sure it deals with what you do as a company.

2. Read Your Manual

This may seem like a no-brainer, but you have to read your manual. Attorneys are experts in detail. Designated experts are blood hounds for detail. It is doubtful that what you see as a glowing defense in your safety program will even make it into the initial rounds of legal wrangling. In my experience, most companies know HAZCOM, PPE and a few big-ticket items. Most operations leadership only know the manual is in the safety office.

Read your manual. Make updates. Build a review calendar. It is hard for a legal attack to survive a company that has a calendar of review and designated people to make updates. Remember, it isn’t how heavy your safety manual is, it is how accurate it is in relation to what you do.

3. Safety Discipline

Teaching at an OSHA Training Institute has allowed me to interact with directors, managers and even OSHA officers. I have asked question as to what OSHA looks at in a company review. The common response: safety disciplinary action. To be a relevant, a safety program is to have disciplinary action for the violation of safety policies. An organization with no safety write ups is one of two situations. Either the company has the best safety program on Earth, or, more likely than not the safety program is merely a “paper safety program.” In simple terms, what looks comprehensive on paper is not being translated into actual employee involvement.

Enforce your safety policies. Put it in writing. Not as a safety-cop, but as a diligent leader looking out for their people.

4. Hazard Assessment

The Hierarchy of Safety Controls is foundational to a written program . PPE falls as the last line of defense in the hierarchy of controls. Unfortunately, for many organizations, that is where they start and stop at PPE. In case review, I ask the simple question, “What PPE do you require for your jobs?” When you get your list, I ask for your written hazard assessment. If there are more than 10 people in an organization, the hazard assessment must be in writing, and it must have been available prior to work commencing.

The written hazard assessment identifies what PPE is required as well as why safety controls deemed more effective cannot be used. In essence, when there is PPE required, a company has stated that, “We have looked at what we do as a company and there are hazards. For recognized hazards there are no elimination opportunities, engineering, or administrative controls available. As a last line of defense to protect our employees we are forced to use PPE.” In most cases I have reviewed, the written hazard assessment did not exist. Even worse, some organizations submit their Job Safety Analysis (JSA). In deposition, the attorneys hand the CFR to safety leadership and asked them to read the definition of a hazard assessment.

5. Computer Based Training

A couple years ago I worked on a case with a double fatality in a confined space. In this case, both decedents were identified as trained and authorized to enter a permit required confined space and work. One of the decedents was also authorized to serve as a supervisor for permit required confined space operations. Our team requested the training documents and were given certificates for an online training organization. The basic confined space training was $59 and could be completed in just a single day. I paid the money and took the class.

The information presented was a regurgitation of OSHA of the permit required confined space standard, word for word. The computer voice actually read the standards out loud. It showed a few scenarios and quizzes at the end of each section. To play devil’s advocate, I answered all the questions wrong on the first quiz. When I submitted the answers, the site gave me my score and asked me to try the quiz again. I was given the same questions again. The program allowed me to take the quiz in an unlimited format. At the end of the quiz, I passed the section with a 100 percent score.

Moving forward, I just took the quizzes as I had done the first one. In less than an hour, I received my eight-hour certificate. The supervisor program was exactly the same. What should have taken me days to complete, I finished in the time it would take to enjoy a meal. I was never given the opportunity to ask questions.

When the organization was confronted about their training, they actually tried blamed it on OSHA. If OSHA was doing its job, they insisted on training like the one their employees took would not be allowed. They lost their case.

6. DO what you say you DO

So, you have been sued. You and your attorney prepare for your deposition, and you feel pretty good. The plaintiff attorney sends notices for depositions to employees who may have personal knowledge of the events which led to the lawsuit. This is where most safety programs start to fall apart. In your production documents, you detail topics such as your new hire orientation. Your orientation is a week in duration. Your documentation is neat, organized and bulletproof.

Now comes your employee’s depositions. His/her depositions are not the same as yours. With the deposition, the talented attorney, who is an expert at interview creates a calm environment. The attorney presents as a friend to your employee. By the end of the deposition, your employee says your new hire orientation is a couple videos and a group quiz over about an hour. The employee further states that your company is so busy that getting everyone trained before they start working almost never happens. “After all,”, your employee says, “we only have one safety guy.” All the documents you turned in for your safety program will now be used against you in court. My advice: If you say you do something, you better do it. It is better to be truthful than to detail a comprehensive safety program that is proven a lie in front of a jury.

7. TRIR and EMR

In many cases, a company’s numbers look good—too good. Once the logs have been received, a plaintiff may for the EMR or experience modification rate. This number is based on how much you spend in workman’s compensation. The number handled by your insurance cannot be manipulated. If numbers do not match up, the plaintiff will have a field day with your disingenuous OSHA logging practices. The common defense is to blame a previous employee for errors. Blaming rarely works. OSHA record keeping standards direct companies to go back up to five years and make corrections to their logs.

Prepping

I don’t want to leave you with a sense of dread for the legal process. A safety professional can be prepared. Here is a prep tip:

In your deposition, the other side will try to get you to agree with a point or line of questions. You can tell the question is a setup and a YES or NO answer will lead you down a path of no return. If you only had the opportunity to explain the real situation, the attorney’s question would not matter. In those situations, I answer the question something like this:

“It seems like you are looking for a Yes or No answer to your question, and I can do that. But I feel it would be confusing to the jury. Would you like me to answer, or would you like me to explain?”

When I answer like this my attorney knows there is something I would like to clarify. When my attorney gets his turn, he will come back to the questions and say something like:

“Hey Mr. Barnes, earlier the other attorney asked you a question you thought would be confusing to the jury, can you explain what you thought would be confusing?”

That is your opportunity to get your information out. To be sure the other side will object to everything. However, that is their job. I hope this information has been helpful.