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“Unpreventable Employee Misconduct: Series on the Affirmative Defense,” Modern Contractor Solutions

February 2019

In a four-part series for Modern Contractor Solutions, associates Samantha Catone and Anthony M. Kroese provide contractors and entities subject to OSHA requirements with the tools to successfully defend an OSHA violation when the violation was a result of an employee’s unpreventable misconduct.

For the first installment, Sammy and Anthony examine each of the four elements of the unpreventable employee misconduct defense that must be proven to vacate an OSHA citation. “To succeed on the defense,” they write, “the contractor must prove that it: (1) established a work rule adequate to prevent the violation; (2) effectively communicated the rule to its employees; (3) insisted on compliance and had methods of discovering violations of its rules, even though it did not know about the specific violation; and (4) had effective enforcement of the rule when violations were discovered.”