As a business owner or a manager, you always face a problem when you try to ensure legal compliance. You can set policies, but chances are you can’t be in the field to make sure those policies are followed. That’s why you have supervisors.
But what do you do if your supervisors fail to make sure the crew complies with the rules, or worse still, what if the supervisors are the ones who break the rules? A new court ruling makes companies responsible for their supervisors unsafe behavior. That could create a real problem for companies that do not have clear and effective oversight of their supervisory personnel.
The case came out of the 11th Circuit Court of Appeals in Atlanta and it covers a case in which a worker and supervisor were both working at a 15-foot height with no fall protection. The company was fined and challenged it in court, arguing that it should not be held liable for the actions of a “rogue supervisor.”
The court disagreed and found the company liable. The decision creates a confusing situation for employers. An earlier court decision had found in a different case that companies may not always be liable for the actions of their supervisors if those supervisors acted against company policy or were “rogue” in the words of the court. It said that supervisors were the “eyes and ears” of their employers and that a supervisor who acts against the rules leaves the company “deaf and dumb.”
There is a very good analysis of the two cases here. It indicates that these instances need to be looked at on a case-by-case basis and that the “rogue supervisor” defense may be very limited. When I looked at this case, I was struck by the fact that the fine that the company objected to was actually pretty low ($11,400) and the violation was a pretty common one (using a step ladder incorrectly). You can spot improper ladder use when you drive by most residential construction jobs. How does this decision apply when a supervisor fails to enforce the rules, perhaps ignoring safety to meet a deadline, and he or a worker dies? The penalties and blow to their reputation could ruin a mid-sized company.
How do you make sure your company doesn’t get caught in this dilemma? Here are some suggestions:
- Make sure your supervisors are properly trained on managing crews and their responsibilities as company representatives. We have a really good class on supervisory leadership if you don’t have one yourself.
- Review your policies with supervisors to make sure they understand them and why they must be followed.
- Adopt and enforce a stop work policy that stresses supervisor and worker responsibility for stopping the job if unsafe conditions exist or a company procedure is not being followed.
- Perform field audits, preferably by a third party. Make sure that what you think is happening in the field is actually happening. Contact me if you need help with this. If the cost of bringing in an outside auditor bothers you, think of it this way – it costs about as much as an hour or two of your lawyer’s time if something goes wrong.
- Document everything! Especially if you find and correct a problem.
One final note – Apply what I call the Dust Theory of Safety Management. Look around your facility and your worksites. If you find a layer of dust on your safety manual, you know you have a problem. And if you are the CEO and the dust is on your copy of the safety manual, you have an even bigger problem.