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Legal Aspects Of Training In The Work Place
(Safety Training Programs)
by
William P. Flinn
(C) 1995
This paper represents the final edition of a project which was originally submitted
to Chapman University, Professor William Seabury, J.D., as a post-graduate work for a
class in "Personnel Law" during Term I, 1995.
Outline:
The following project consists of a study of current trends in safety training with
respect to the legal aspects of training programs in the work place. The main focus of
this paper is to illustrate training programs as they relate to safety in the work place,
and potential litigation which arises as a result of injuries and damages to employees, as
well as injuries and damages which affect third parties outside of the company.
A brief discussion of training program development is presented, as well as some of the
various issues and legal topics which affect management and employees. The role of the
trainer, manager, and employee are discussed to illustrate how each fits into the safety
training program. Case studies are used to illustrate the legal aspects of training and
some of the consequences which have been brought about as a result of these cases.
Safety Training programs play an integral part in the modern work place. Not only is a
sound training program important for ensuring that employees know how to perform their
tasks safely, but for enabling the company and management to avoid legal consequences
caused by failure to follow safety and safety training procedures. Failure to train, or
inadequate training, can have a far reaching moral and legal impact on the company, its
managers and employees, and can lead to litigation and liability situations for many
individuals, including the managers, trainers, and employees themselves.
In the dynamic environment of today's work place, many far reaching changes have taken
place, causing many companies to evolve their safety training programs at an ever faster
pace. One such change is the realization that the training department, through its
training programs, assumes a much larger role in the prevention of such things as employee
injuries, damages to persons outside the company, and the lawsuits which are brought about
because of these injuries and damages. Along with the realization that training programs
are such an important tool in preventing litigation comes the necessity to change and
improve training programs more frequently to stay up with the ever changing laws and
regulations which govern the conduct of businesses.
The training program, in order to be successful, must be properly designed,
enthusiastically marketed to management and employees, and must offer everyone concerned
the opportunity to learn the philosophy and skills necessary to minimize injuries, damages
and lawsuits. It is also vital that once implemented, the training program is monitored
continuously to ensure that management and employees are active participants in the
training program, and are brought on board with an attitude of support in order to keep
the company out of the court room in the long term.
The following project consists of a study of current trends in safety training with
respect to the legal aspects of training programs in the work place. The main focus of
this paper is to illustrate training programs as they relate to safety on the job, and
potential litigation which arises as a result of injuries and damages to employees, as
well as injuries and damages which affect third parties outside of the company. This
objective will be accomplished through a discussion of training program development, as
well as some of the various safety issues and legal topics which affect management and
employees. The role of the trainer, as well as the roles of management and the employees
will be discussed, with respect to their individual responsibilities. This paper will show
how each plays a part in the training program, and in preventing damages and litigation.
Actual law case studies are also used to illustrate the legal aspects of safety training,
and some of the effects on the company when a lawsuit is brought about.
Why is Training Needed?
The increased importance of proper safety training in the work place has come about as
a result of many cases where employers and managers have been held liable for failure to
train their employees. In fact, "Negligent Training" is regarded as a
legal doctrine whereby employers and managers can be taken to court and charged with
negligence, in that they failed to use a standard of reasonable care in training employees
to do their jobs safely and effectively (Fenton, et al, 351).
Not only must employers ensure that their workers get trained, they must ensure that this
training begins as soon as possible after the new employee is hired. An important
illustration of the importance of training employees, beginning their first day on the
job, is found in the following statistic: The Bureau of Labor Statistics reported that
"25% of all injuries in the work place occur during the first month on the job" (Kinney, "...Job Safety?", 48).
Managers need to be made aware of the various laws and safety standards which govern
their particular industry, and how to effectively present these concepts to the work
force. Employees need to be trained in such things as company policies, the use of
personal protective equipment, environmental rules and regulations, and how to safely
perform their tasks. Continuing supervisory education for management, and employee
indoctrination training all play an important role in the prevention of injuries, damages
and litigation. In cases where employees were trained, but failed to adhere to safety
standards, the employer can also be liable for failure to enforce safety policies and
regulations (Fenton, et al, 351).
But presenting a training syllabus to management and employees is simply not enough.
Training programs must not only disseminate information, but must become active in
teaching managers and workers how to develop the necessary habits and "safety
philosophy" which will enable them to perform their daily routines safely, and
without violating the law. Training programs and safety procedures must also be simple
enough to understand. Instruction, training and company safety regulations should be
written and geared towards the novice, or someone who is not familiar or experienced with
safety procedures (Kinney, "...Job Safety, 48).
It is equally important for the training program to motivate all levels in the chain of
command, from the CEO, down to the most junior worker, to get on board with the moral and
ethical principals which will make them want to do their jobs effectively, while doing
everything possible to prevent situations which would land the company in court. As
mentioned previously, a certain "Safety Philosophy" must be instilled in the
workers, so that they know that they will be held accountable for their own actions.
Likewise, management must be on board with the philosophy, for they will be held
accountable not only for their actions, but for the actions of their employees (Kinney, "...Job Safety?", 48).
The Role Of The Trainer:
The training department has the incredible task of not only designing the training
programs for the company, but for selling the training program to ensure that management
and the workers are on board with the training requirements. The training department is
also responsible for ensuring that these training programs are kept current. As the laws
and regulations change, so too must the training syllabus be changed and updated to keep
management and the employees current on what is required. The trainer must know not only
in which areas the employees must be trained, but must know why the employees need this
training. The tasks of marketing the training program to management, and continually
updating the training to keep it current are just a few of the responsibilities the
training department faces in ensuring that the company's training program is effective in
keeping the company in good stead with the law.
Training Needs Assessment must be performed in order
for the training department to provide the proper and appropriate training. The trainer is
tasked with finding out in which areas management and the employees need to be
trained. Preventing liability or limiting exposure to lawsuits based on training
negligence requires that the training process is one in which an objective set of
standards of performance is established. The training program must teach management and
employees the specific job or task requirements and provide a means for continual and
consistent enforcement of the training objectives (Eyres,
"Avoid Employer and Personal Liability...").
The standard of care for job safety, simply stated, is that the employer must provide
the employees with a work place which is free from hazards that could cause death or
serious injury. That is to say that all foreseeable hazards must be removed, or the
employer must inform the workers of the potentially hazardous situation, and provide
training which will enable the employees to minimize exposure to the hazards and to use
the appropriate protective measures. The trainer, then, must be able to see into the
future and try to predict all potentially hazardous situations the employees might
encounter, and design the training program accordingly. In many cases, the employer and
the trainer are not aware of the potential hazards and legal consequences of negligent
training design and management of training programs (Eyres,
"Avoid Employer and Personal Liability...")
Implementing The Training Program in the work place
involves much more than simply laying out a set of policies, regulations and guidelines,
and expecting the work force to adhere to them. Training often involves adapting a new
philosophy or set of work habits, and as such requires an implementation process which
will lend itself to foster a change of attitudes for all levels in the chain of command.
The "marketing" aspect of any training program should sell this philosophy and
help gain management and employee commitment to the notion that training is first and
foremost in importance to enable the company to carry out its mission and be successful.
When designing a training program for implementation, it should be based on some very
simple, but often ignored precepts. Keep the training simple, design the training with the
desired results in mind, and above all, keep in mind the notion that the training should
be focused on behavior. The ultimate desire of most training programs should be to enhance
and further company goals. (If the company's exposure to litigation is minimized through
training, the real goals of profitability and mission can be better attained). But, the
most important aspect in meeting this objective is to cause a change of behavior, both for
employees and management (Kelly, 112-113).
Continual Monitoring and Revision of the training
program is a vital aspect in ensuring training effectiveness. Many difficulties faced by
companies involve infractions against rules and regulations which are added and/or changed
frequently. The regulatory systems which govern most industries are constantly adding and
changing laws and statutes which tell a company how to perform their particular tasks and
operations. As new cases are litigated, new precedents are set, and interpretations of the
law (and its intent) are more finely tuned. In order for the company to avoid or at least
minimize exposure to these lawsuits, the training department must continuously evolve the
training program to keep management and employees aware of the laws and regulations (Eyres, "...Out Of Court"). This can be accomplished
by keeping current on new case studies and regulation updates. Therefore, this process
would require a very close relationship and effective communication between the trainer,
management, and the legal arm of the company.
It is important to understand that the training program should be evaluated to ensure
its timeliness and effectiveness. Reducing potential risks through a sound training
program means that the program itself should be constantly reviewed, using inputs from
both up and down the chain of command to make improvements (Fenton
et al, 355-356).
Providing a Safe Place To Work is one of the most
important, and most basic tenets of employer responsibility, and is the first step in
reenforcing a philosophy of safe work practices. The responsibility and accountability for
all of the company's actions ultimately rests on the shoulders of the management entity.
Management has many roles it must play in keeping employees from causing injury or damage
to themselves and others. The safety philosophy begins with sound practices in the work
place, and it is therefore the employers responsibility to ensure that all employees are
provided with a safe place to work. Title 29 of the United States Code, Section 654 (Labor
Codes, dealing with Safety and Health) specifically states, with regard to employee
safety, the following:
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"Each employer -
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shall furnish to each of his employees employment and a place of employment which are
free from recognized hazards that are causing or are likely to cause death or serious
physical harm to his employees;
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shall comply with occupational safety and health standards promulgated under this
chapter."
Source: (Title 29 United States Code, Annotated, Section 654).
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An example of how management can fail to provide the workers with a safe work place, as
well as being negligent in training the workers (ie not informing them of potential
dangers on the job) can be found in a recent Maryland case in which seven companies were
found guilty of negligence. In this particular instance, several cases were consolidated
to ease the court's backlog of some 8,500 claims of negligence and liability against
companies for similar types of employee injuries. The manufacture of asbestos products was
involved, and the companies were held liable because they knew, or should have known, that
the asbestos was dangerous for workers to handle ("A Big
Win For Asbestos Workers", 17).
The following case also illustrates the importance of the duty of management to provide
the employees with a safe work place, free from hazards, as well as the need to prevent
hazardous conduct and provide adequate training and supervision of employees:
Case Study #1
(General Dynamics Corp., Quincy Shipbuilding Division v. Occupational Safety and
Health Review Commission, 599 F.2d 453)
In this case, the company petitioned the court to review citations handed down by
the Occupational Safety and Health Review Commission (OSHRC), which stated that the
company was guilty of a serious violation of the general duty clause of the Occupational
Safety and Health Act of 1970. It was further stated that the company failed to provide
adequate safety training in a particular procedure, which in turn resulted in the death of
an employee. The situation involved welders who were performing the various steps involved
in positioning and welding braces and structures known as "monuments" in the
ship-fitting process. An employee died when a monument was removed prior to the frame
being properly secured, and the 3,500 pound web frame fell on top of him. Quincy's defense
was based on "idiosyncratic behavior of its employees", stating that this
incident was an isolated occurrence. Nonetheless, the United States Court of Appeals
(First Circuit) concluded that there was sufficient evidence to support the OSHRC's
conclusion that Quincy's safety training program was not adequate to prevent this incident
from occurring.
This case provides a good example of not only the requirement to provide a safe working
environment, but for the need to anticipate and try to predict the types of hazards which
the employees will face, or as in this case, cause themselves through their lack of
training.
Setting a Proper Example is also a key element in
reenforcing the industry rules to be followed. Management must police itself to ensure
that they are not setting a bad example for the employees, and causing injuries to outside
parties through their own negligence or willful misconduct. For example, a company CEO was
sentenced to jail and was made to pay a large fine for "knowingly endangering
others" by instructing his employees to dump toxic waste down a sewer drain which was
on the company premises. The CEO was sentenced for violations of the Federal Clean Water
Act, and it was noted that this was the first case in which a CEO was sentenced for this
type of conduct (Greco, "Hazardous Waste Threatens CEO",
201). In a similar case, an otherwise successful businessman was sentenced to
state prison because "... he had repeatedly directed his employees to dump highly
toxic paint solvents into a landfill." (Bedsworth,
"The Verdict", 83).
Training Employees To Do Their Job safely and
properly, without harming others, is, or at least should be, a top goal of the management
structure. Management is responsible for providing the necessary training to preclude
employees from endangering themselves and others in the course of performing their
assigned tasks. Employers must not only ensure that the workers are aware of the various
regulations and instructions that they will be responsible to follow, but must also ensure
that competent training is given in how to properly locate and utilize these documents.
These documents can be very much considered as part of the tool box that the worker will
use for any given task (Fenton, et al, 354-355).
As has been stated again and again in various examples of cases in which employee
training negligence has occurred, it is important that the training for the job begins on
day one and that the employee is properly trained prior to using the tools and doing the
job. The following case illustrates the effects of failure to train employees to perform
their tasks, resulting in their failure to properly use the tools given to them, which in
turn resulted in injuries others outside the company:
Case Study #2
(Cutter v. Farmington, 498 A.2d 316)
In this case, the plaintiff sued the Town of Farmington along with two police
officers, alleging that negligent training was responsible for the improper use of
handcuffs which led to injuries, and which subsequently led to permanent damage to the
plaintiff's left wrist. The plaintiff suffered partial disability as a result of this
injury, and was unable to continue work in his trade as a logger. The police officer who
applied the handcuffs was new on the job and was assigned as a partner to a more
experienced police officer. The officers pulled over a truck in which the plaintiff was a
passenger. While the senior of the two officers dealt with the driver of the truck, the
junior officer detained the plaintiff. The plaintiff was acting contrary to the officer's
directions, and exited the patrol car in which he was being detained. An order to face the
truck was made by the junior police officer to the plaintiff. When the plaintiff did not
respond, the police officer forced him against the truck and handcuffed him. It was noted
that the plaintiff allegedly threw a punch at the police officer. In the course of
handcuffing the plaintiff, the officer neglected to double lock the cuffs, to prevent them
from tightening on the plaintiff's wrists. The cuffs in fact continued to tighten, which
in turn resulted in the injuries mentioned above. The plaintiff made two requests for the
cuffs to be loosened, but both times the requests were ignored. The jury ruled in favor of
the plaintiff (citing lack of training and responsible supervision). The case was appealed
in the New Hampshire Supreme Court, and the verdict was upheld.
The court, in this case, held that the police officer had received tools of the trade
(ie a handgun and handcuffs), but did not receive proper training prior to using them. The
court also held that the supervision provided by the senior, more experienced officer was
not adequate (Fenton, et al, 352-353). This case is
clearly one in which an employee was given tools, but not the required safety training to
prevent the employee from being a safety hazard to others. Lack of supervision also played
a large part in this lawsuit, and thus all of these factors affected the company (in this
case a police department) in an adverse way.
Enforcing Company Policies, and consistently reminding
employees of their responsibilities, is a very important role that management plays is in
enforcing the safety training process. The law gives employers the necessary latitude to
enforce safety rules and hold employees accountable for safety violations. OSHA
regulations, for instance, give the employer the power to enforce safety rules, and will
in fact cite the employer for failure to enforce safety regulations in the work place. The
bottom line here is that the employer must train the employee to comply with rules and
regulations, but must also hold employees accountable through counseling, periodic
evaluation, or in extreme cases disciplinary actions when the rules are not followed (Sovereign, 253-255).
Some of the possible ways to enforce, or more appropriately reenforce the rules are
many and varied, depending on the degree of seriousness with which management perceives a
problem or problem trends. For example, the supervisor of the individual who is beginning
to cause safety related problems might give that individual periodic, documented
counseling. Using the periodic performance appraisal as a training device might also be
very appropriate in the case of an individual who only commits occasional minor
infractions of safety rules (Sovereign, 113). In
the case where management perceives that many people are responsible for a growing trend
of minor safety violations, re- posting the safety rules and regulations in a prominent
place may catch the attention of the offenders and remind them of the rules they must
follow (Sovereign, 94). Of course, in the most
extreme of cases, where the offending employee has committed a very serious offense, this
enforcement may come in the form of dismissal. This would send a clear message to others,
and hopefully prove to be valuable as a deterrent from making the same mistakes.
Obviously, the most important aspect of keeping the employees safe from injury in the
work place, or preventing them from causing damage to outside parties, is that the
employees themselves must adhere to all of the rules and regulations placed before them.
The employees are tasked with the responsibility of becoming competent to do their jobs
and following all of the rules of their industry, as well as any specific policies and
procedures promulgated by the company.
Learning Job Tasks and Safety Requirements, as well as
learning to comply with the laws and regulations, to a certain extent, is a key
responsibility of the employee. The regulations governing employee conduct with regard to
adhering to safety regulations in the work place are very clear. Title 29 of the United
States Code, Section 654 (Labor Codes, dealing with Safety and Health) has this to say
about the duty of employees:
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"Each employee shall comply with occupational safety and health standards and
all rules, regulations, and orders issued pursuant to this chapter which are applicable to
his own actions and conduct."
Source: (Title 29 United States Code, Annotated, Section 654).
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While it is true that the employer is responsible, under these same laws, to properly
train and supervise the employee, it is the employee who must take the training received,
along with the laws and regulations, and act in a manner consistent with that in which a
reasonable person would act. In other words, the employee has a standard of care which
requires him or her to act in such a way as to not become endangered (or endanger others)
due to failure to follow the law, as well as the safety regulations put forth by the
employer. The following case study illustrates this point:
Case Study #3
(Pennsylvania Power & Light Co. v. Occupational Safety and Health Review Com'n,
C.A.3, 1984, 737 F.2d 350)
In this particular case, the Pennsylvania Power & Light Company (PP&L;) was
cited by the Occupational Safety and Health Review Commission for a serious violation of
the Occupational Safety and Health Act of 1970, in that they failed to comply with a
grounding regulation (electrical grounding to prevent risk of electrical injury),
resulting in the death of a company lineman. PP&L; petitioned the United States Court
of Appeals (Third Circuit) to review the citation. Specifically, a lineman was working
with lifting equipment in the vicinity of power lines and failed to follow the proper
safety procedures. PP&L; had established and implemented what was termed as an
"excellent" safety program. In fact, the employee in this case had an
established history of good safety practices and was noted to have an unblemished safety
record. It was held by the court that the lineman's conduct in this case was not and could
not have been predicted by the company (mostly due to this individual's excellent safety
record), and the company therefore could not be held liable. The OSH Commission's citation
and penalties were subsequently overturned.
Clearly, the employer had shown that the implemented safety training program was indeed
adequate, in fact being noted as "excellent". The employee's past safety record
is further testimony to the fact that he had been trained to work safely. The employee's
own misconduct was evident and resulted in a fatal injury. As stated in this case study,
his actions in this fatal incident could not have been predicted by the employer.
Developing Habits To Prevent Injuries is a culmination of
the entire training process. Once the employee has learned the necessary skills of the
job, the requirements of the various laws and regulations of the industry, and has adapted
a sound philosophy towards safety in the work place, exposure to potential injuries and
damages will be minimized.
As stated above, in the excerpt from the Occupational Safety and Health Act, the
employee has the responsibility to follow all of the laws and regulations put forth. If
the trainer has done a proper job of designing the training program, and the employer is
providing a proper example and enforcing training objectives, it follows that the employee
will be empowered to develop the necessary habits to work safely and preclude injuries. It
is the employee's duty, in other words, to become competent at his or her job. To be
considered a competent worker, it is up to the employee to change his or her behavior to
conform to the standards being taught, and to do the job properly (Kelly,
109-111).
There can never be too much emphasis placed on the importance of a sound training
program. By properly training all personnel concerned (employees and management) in the
various safety and legal aspects of the mission of the company, the potential exposure to
litigation will be greatly reduced. Furthermore, proper and adequate training leads to a
more productive work force. With respect to the importance of safety training in the work
place, it can be said that most lessons learned are as a result of a case in which an
employee or other party was injured or killed, bringing to light a need to train more, and
train more thoroughly. As was seen in the cases cited in this paper, training (or rather,
a lack thereof) played an important part in the final outcome of the case, and the effects
it had on the company.
The Trainer: Since the trainer and the training
department are responsible for the development and design of the training program, they
can be held liable for negligent training, and negligent training program design. The
trainer must be very thorough in the development of the entire training evolution which
the employee will undergo from the first day of employment to the last day on the job. The
trainer must try to anticipate the potential hazards of the job, and attempt to tailor the
training program accordingly. The trainer is responsible for ensuring that the training
process is an ongoing evolution, beginning with initial indoctrination and continuing with
constant follow-up training to keep all personnel concerned up to date on changing laws
and company policies.
Many laws and statutes require that training must be completed before the worker
performs the task or is placed in a dangerous environment (Eyres,
...Out Of Court). For that very reason, the design of the indoctrination
program and any task related training programs must deal with any safety or legal issues
which affect the employee, or will affect the company if the employee fails to adhere to
the standards to which he or she was trained. While the employee can be held accountable
for violations of safety regulations, it is the trainer who is responsible for ensuring
that the training program was designed properly in the first place, to afford the employee
the proper exposure to the necessary information which will allow them to do the job
safely and effectively. Negligent design of training programs, and negligent delivery of
the training program are just a few of the areas in which the trainer can be held liable (Kelly, 178).
Management: Any liability which can be applied to
the trainer, as mentioned above, can be equally applied to the management entity. The
trainer is responsible for ensuring that employees are up to speed on the various
regulations, but final and ultimate accountability for proper training, compliance with
regulations, and compliance with safety procedures rests with management (Eyres, ...Out Of Court). Management has a duty to provide the
employees with a work place free from hazards, and must also inform the workers of any
potential hazards which exist in the realm of their employment, as well as providing them
with the proper training to use personal protective equipment when working near these
hazards.
The manager must also set a proper example of the conduct expected, with respect to
safety in the work place, and adherence to regulations in order to prevent injuries to
outside parties. As was seen in the cases where CEOs and successful businessmen were
indicted for negligence and failure to instruct their personnel in proper procedures,
failure to act in a reasonable manner can land top management in court, and in fact in
jail.
Management is responsible not only for proper training, but for the overall proper
supervision of employees as well. Negligent training and supervision are the basis for
many law suits in which injuries are incurred. As was seen in the case of Cutter v.
Town of Farmington above, the employer (in this case a police department) can be held
liable for failing to train an employee (in this case a police officer) to properly
perform their tasks safely, and to properly use the tools and instruments of the trade.
Employees: Once training has been received, the
employee has the duty of following all rules, regulations and procedures set forth by the
employer and all existing regulatory agencies. Some of the potential hazards faced by the
negligent employee, or the worker who acts without regard to safety procedures, include
(but are not limited to) serious injury, death, or even being named as a defendant in a
lawsuit, along with the employer. Again, the safety "philosophy" must be firmly
embraced by the employee, and it must be made a part of the active training process. If
the workers are on board with the "philosophy", they will naturally develop the
necessary habits which enable them to follow the rules and make a conscious effort to be
safe. This will in turn lead to more productive workers, as well as helping to minimize
the company's exposure to law suits brought on by negligence on the employee's part.
The training process is the most vital tool that a company has at its disposal to
prevent injuries, damages, liabilities and lawsuits. Training programs must be designed so
that every current regulation, law, and conceivably dangerous situation is covered. It is
of vital importance that, in order for the training program to be well received by
management and employees, it must not only dictate a set of rules and procedures, but must
sell a "safety philosophy" as well. Management must properly apply and enforce
the training process through necessary re-training, and by setting a good example.
Managers must accept responsibility for the fact that they will be liable for their
employee's misconduct, especially if it can be proven in a court of law that they did not
properly train the employees to do their job, or to properly use the tools of the trade in
performing their tasks. Finally, it is up to the individual doing the job to get on board
with the "philosophy" presented in the safety program, and to take ownership in
the safety training program by developing the necessary habits to work smartly and safely.
List Of Works Cited
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"A Big Win For Asbestos Workers," Time July 27, 1992:
17.
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William W. Bedsworth, "The Verdict," Sierra May/June,
1993: 83-85.
-
Patricia S. Eyres, "Avoid Employer And Personal Liability In
The Training Process," Region VIII Conference, American Society For Training And
Development October 3, 1989.
-
Patricia S. Eyres, "Keeping The Training Department Out Of Court," Training
September, 1990: 59-67.
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James W. Fenton, et al, "Negligent Training Suits: A Recent
Entry Into The Corporate Employment Negligence Arena," Labor Law Journal June, 1991:
351-356.
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Susan Greco, "Hazardous Waste Threatens CEOs," INC
November, 1991: 201-202.
-
Kelly, Leslie. The ASTD Technical And Skills Training Handbook. New
York: McGraw-Hill, 1995.
-
Joseph A. Kinney, "Why Should We Care About Job Safety?,"
USA Today Magazine July, 1991: 46-48.
-
Sovereign, Kenneth L. Personnel Law. New Jersey: Prentice-Hall,
Inc., 1994.
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