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‘Blame-the-Worker’ Allegations Reveal Deep Divide Between Labor, Management

By Stephen Lee - Tony Mazzochi Center for Health, Safety, and Environmental Education, March 10, 2014

Disclaimer: The views expressed here are not the official position of the IWW (or even the IWW’s EUC) and do not necessarily represent the views of anyone but the author’s.

Feb. 27 — Worker advocates and some labor scholars contend that employers routinely blame and punish employees for sustaining on-the-job injuries, reflecting a fundamental dysfunction in labor relations.

Employer representatives dispute those claims, saying the allegations are purely anecdotal and require knowledge of employers’ motives that workers don’t have.

“Blame-the-worker” policies take many forms, James Frederick, the United Steelworkers’ assistant director for health, safety and environment, told Bloomberg BNA Feb. 27: discipline for workers who suffer injuries, incentives for those who avoid them, signs promoting the number of consecutive days without lost-time incidents or programs in which workers are assigned to monitor each other for safety violations.

“All of these programs, what unites them is [that] they say, ‘If you get injured, it’s your fault, so we’re going to give you a prize because you’ve worked safely, or we’re going to punish you because you worked unsafely,’ ” said Nancy Lessin, a United Steelworkers employee representative.

Workers Deemed Responsible.

For example, blame-the-worker programs can result in injured workers being accused of not paying attention, failing to use adequate protective equipment or carelessly wandering into the “line of fire,” Lessin said Feb. 10 at the annual Good Jobs Green Jobs conference.

The workers are then disciplined with a range of punishments that can include dismissal, according to Lessin.

To illustrate her case, Lessin provided several copies of employer policies to Bloomberg BNA. One policy, called the “Accident Repeater Program,” from a manufacturing facility, states that “discipline may result” if an employee is involved in two or more accidents within one month. The policy further states that an employee who has five accidents in a 12-month period may be terminated.

‘Lack of Attention to Your Own Safety.’

Lessin also provided a warning notice an employer gave a press operator at a New York manufacturing plant in 2010, indicating that the worker had suffered four injuries that had to be reported to the Occupational Safety and Health Administration over the previous 2.7 years.

According to the notice, the worker’s “alarming rate is 2,600 percent higher than fellow workers who have been accident free and demonstrates a serious lack of attention to your own safety and potentially the safety of your fellow workers.” The worker was also suspended for three days, disqualified from working as a press operator and warned that one more OSHA recordable injury would result in immediate termination.

More recently, the U.S. Court of Appeals for the Seventh Circuit ruled Feb. 14 in favor of an Illinois tire maker that fired a driver who had sought to file a workers’ compensation claim in 2010 after experiencing numbness in his fingers. Company officials had ordered him to take a drug test, in accordance with their substance abuse policy, which he had refused, bringing on his termination (Phillips v. Cont’l Tire the Ams., LLC, 2014 BL 41062, 7th Cir., No. 13-2199, 2/14/14).

Problems in the Railroad Industry.

Such problems appear to be particularly common in the railway industry.

For example, BNSF Railway Co. reached a voluntary accord with OSHA in January 2013 over its policy for employees who report injuries. The accord stated that BNSF would put workers on probation if they suffered injuries and assessed “points” against workers corresponding to their injuries.

Similarly, in June 2013, an administrative law judge at the Labor Department ordered the Grand Trunk Western Railroad Co. to pay lost wages, punitive damages and compensatory damages to a worker who was found to have suffered unjust reprisal for reporting an injury.

A co-worker who was involved in the same alleged violations but wasn’t injured wasn’t disciplined, the judge found.

Several members of the United Steelworkers, Service Employees International Union and United Auto Workers confirmed during the Good Jobs Green Jobs conference that they had encountered such policies in their workplaces.

They also reported that their employers use incentive programs, offering prizes such as free lunches, scratch-off tickets, raffle tickets and gift certificates to reward workers who don’t report injuries.

Injuries or Broken Work Rules?

Most employers deny that they discipline workers for suffering injuries. Instead, according to Lessin, they commonly try to reframe injuries as instances in which employees broke work rules.

She spoke of one company that was unable to match every injury with a written work rule, and that therefore devised a new blanket rule that would cover nearly all types of injuries: “You must work carefully.”

Other workplaces mandate post-injury drug testing, Lessin said, which has a chilling effect on employee reporting.

“If you report an injury, the first thing you have to do is pee in a cup,” Lessin said. “Sometimes it’s any injury at all, such as symptoms of carpal tunnel syndrome: ‘Go pee in a cup.’ ”

By pinning the blame for injuries and illnesses on workers and threatening them with punishment, employers gain two advantages, said Lance Compa, a senior lecturer at Cornell University School of Industrial and Labor Relations.

First, they dissuade workers from reporting injuries, thus allowing employers to avoid inspections or citations from OSHA; and second, they discourage workers from filing workers’ compensation claims, thus keeping employers’ insurance premiums down, Compa told Bloomberg BNA Feb. 16.

“I have no doubt that some employers deliberately apply disciplinary action to employees who get hurt,” Compa said. “They have powerful incentives to do so.”

Industry Lawyer: ‘Hogwash.’

Henry Chajet, an industry attorney with Jackson Lewis PC, flatly rejected the blame-the-worker allegations as “a bunch of hogwash” in a Feb. 11 interview with Bloomberg BNA.

According to Chajet, each incident must be analyzed independently, and broad conclusions drawn from anecdotal evidence that blame-the-worker policies are on the rise are thus “completely inappropriate.”

Workers may sometimes be responsible for their injuries, said James Gross, a Cornell labor relations professor.

As an example, Gross imagined a worker who habitually takes off her hardhat despite repeated safety training, verbal warnings, employer supervision and posted signs, and who then sustains a head injury in a clearly marked hardhat zone.

Labor Professor: Fix the Problem.

“But that’s not to say that that area could not be made safer,” Gross said. “I’d like to see the hazard reduced to as close to zero as possible. If you tell someone to put a hardhat on because stuff is falling off the ceiling all the time, I would say, ‘Yes, you should wear a hardhat, but stuff should not be falling off the ceiling all the time. What are you doing about removing the hazard?’ The hardhat is not the central problem.”

Moreover, Emily Spieler, a law professor at Northeastern University and chair of OSHA’s Whistleblower Protection Advisory Committee, said anecdotal evidence can still be persuasive.

“Each time there is retaliation when a worker brings forward a concern about safety, it is unlawful and a problem,” Spieler told Bloomberg BNA March 3. “All you need is a single data point. Is this happening to a worker? And if it is, it shouldn’t be. But in fact there are a lot of these anecdotes, and that tells us that there is a wider problem that needs to be addressed. This is not an area in which you need population-based data before you can raise an alarm.”

Assumption of Risk.

Fundamentally, blame-the-worker policies are based on an assumption of risk, Gross said, similar to that which a person assumes of being hit by a baseball while watching a game.

“It’s a hot, dirty job, you assume the risk, [and] if you get hurt it’s your own fault,” Gross said, mimicking employers’ rationales.

The assumption-of-risk doctrine once allowed workers to collect damages from their fellow workers for causing accidents, but not from their employers. The advent of state workers’ compensation laws in the first half of the 20th century was supposed to change that, Gross said.

But the assumption-of-risk doctrine is “alive and well,” Gross said, because the National Labor Relations Act requires workers to prove that a job hazard is “abnormally dangerous” before they can refuse work.

“That’s really just the assumption of risk in disguise,” Gross said. “It means if you take a job, you assume all the normal risk associated with this job.”

Lawyer Probes Motive Question.

Arthur Sapper, an industry attorney with McDermott Will & Emery LLP, said blame-the-worker charges against employers are invalid because they assume knowledge of employers’ motives when they discipline workers.

“It’s all dependent on motive,” Sapper told Bloomberg BNA Feb. 24. “How do [workers] know the employers’ motive?”

Sapper said employers are unfairly accused of blaming workers for injuries because the critics wrongly believe workers are only disciplined when they are injured, not when they violate safety rules without being injured.

But even when employers mete out discipline only when workers are injured, Sapper said, it’s invalid to conclude that their motivation is to blame workers, because “a safety infraction is more likely to come to the employer’s attention in the first place if there has been an injury. Lower-level supervisors tend to overlook what they consider minor infractions, especially if there was no injury.”

For that reason, an employer must take disciplinary action—even if it is only an oral admonition—every time a safety infraction comes to the employer’s attention, whether the infraction results in an injury or not, Sapper said.

Progressive Discipline.

Decisions of the Occupational Safety and Health Review Commission have also held that employers must impose progressive discipline, such as an oral admonition, whenever a worker commits a safety infraction, Sapper said, whether the infraction results in an injury or not.

But employers who try to fulfill that duty can be wrongly accused of punishing the injury rather than the infraction, according to Sapper.

“The reason is that people are much keener to remember what happens in the emotion-laden wake of an injury than in the wake of a safety infraction not associated with an injury,” he said. “So they tend to erroneously infer that only those infractions associated with injuries result in discipline. But that’s not always true.”

Sapper and Gross, who also serves as a labor arbitrator, both said discipline must be progressive, starting with oral warnings and gradually increasing in severity.

From Safety Program to Disciplinary Program?

Linda Delp, director of the Labor Occupational Safety and Health Program at the University of California Los Angeles, took issue with the notion that workers should be subject to discipline for every unsafe work practice, pointing to a nuclear power plant in Southern California that recently decreed that all unsafe workplace practices would result in disciplinary action.

Previously, the employer only told workers to report unsafe practices in order for the employer to monitor patterns in the workplace.

“It was a sudden switch, implementing this disciplinary action, and changing the culture entirely to a fear of reporting: ‘OK, we’re going to discipline everybody for everything,’ ” Delp told Bloomberg BNA Feb. 21. “Basically what happens is the safety program turns into a disciplinary program, which is not constructive at all.”

Sapper said risk is an inherent part of any job.

“There will never be a day that employees are not given, for example, screwdrivers that can slip and jab them,” he said. “Hand tools, power tools, are all going to require some human manipulation that can go awry from a moment of clumsiness or inattention, or just simple mistake. It is impossible for an employer to prevent every single one of them.”

Severity of Problem Unknown.

Cornell’s Compa allowed that it’s difficult to document how widely blame-the-worker policies are applied, for the same reason that Sapper questioned the existence of blame-the-worker policies at all: Documenting instances requires proving intent.

“I believe the practice is widespread, but it’s impossible to prove, because employers will always say, ‘Who, me? We’re only applying our safety rules,’ ” Compa said.

Chajet said he has seen no evidence that employers are moving toward adopting such policies.

“If anything, there’s more and more caution about investigating and understanding the facts and trying to report and treat the cause carefully,” he said.

Recession Makes Matters Worse.

Employers’ focus on workers’ behavior has grown worse post-recession, some worker advocates say, as companies scale back their staff, thus forcing the workers who remain to work longer hours and endure more demanding production pressures.

Contributing further to the trend has been the rise of management techniques such as Lean Six Sigma, which Lessin characterized as “doing more with less.”

She pointed to a popular safety training program known as SafeStart that focuses on four conditions—rushing, frustration, fatigue and complacency—that allegedly cause workers to lose focus on their tasks and thus put themselves at risk of injury.

“But production pressures and downsizing are the real problem,” Lessin said. “Massive mandatory overtime is the real cause of fatigue.”

“The common wisdom is that people know, in a lot of cases, you can get away with doing things quickly or not exactly safely,” Delp said. “And when there’s a lot of production pressure, it’s sort of implicitly condoned that people will work faster and work around the rules a little bit—until somebody gets hurt, and then they’re disciplined. That’s not the fair way.”

Best Practices.

To effectively repel blame-the-worker programs, workers can use their midterm bargaining rights to resist changes in the terms and conditions of their employment brought on without proper notification, Lessin said.

“If [an employer] wants to bring in SafeStart, you might be able to say, ‘We’ll meet you at the bargaining table,’ ” she said.

Model language developed by the steelworkers’ union forbids discipline against workers who suffer injuries unless they are found to have acted with malice or reckless intent.

Both Gross and Delp stressed that employers must have clearly written work and safety rules in place.

Lessin also praised OSHA’s March 2012 memo declaring that “reporting a work-related injury or illness is a core employee right, and retaliating against a worker for reporting an injury or illness is illegal discrimination.”

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