Editor’s Note – Mark A. Lies II is a partner with the Chicago, IL, law firm of Seyfarth Shaw, LLP. He specializes in occupational safety and health and related employment law and civil litigation. Elizabeth Leifel Ash is an associate with Seyfarth Shaw, whose practice focuses on regulatory compliance and litigation, including occupational safety and health and environmental matters.
Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
We’ve all been there – we’ve all witnessed a co-worker doing something that violates the company’s rules. We resist any thought of reporting the violation because we value our relationship with our co-worker, because it’s just “not that big of a deal,” because we’ve been taught to mind our own business, or because we do not want a negative reputation as the office “snitch.” But when a co-worker’s violation of a company rule creates an unsafe condition, reporting that conduct to management can literally mean the difference between life and death. Therefore, it is critical that employers confront any “code of silence” and create a workplace culture where employees are encouraged to and feel comfortable that they can confide in management about behavior that violates a workplace safety rule or otherwise results in an unsafe condition without fear of retaliation.
The following real-life examples from cases handled by the authors illustrate two different scenarios where the code of silence either contributed to or prevented a tragic incident.
Case Study One: A Tragic Outcome
It is well recognized that when an authorized employee is required to perform work on equipment, and there is a potential for unexpected energization, the equipment must be locked out or tagged out (LOTO) by the employee. Recently, at a manufacturing facility, a long-term maintenance employee was found to have been electrocuted when he failed to lock out an electrical circuit to an overhead fluorescent light that he was working on. During the company’s investigation, it was learned through other maintenance employees that they had observed the decedent routinely failing to lock out equipment. In fact, it was revealed that the decedent had told the other maintenance employees that he could perform live electrical work without LOTO.
These same employees admitted that they had never informed management of these violations because they didn’t want to “snitch” on the decedent. One employee, who became extremely emotional during his interview, said that he felt responsible for his co-worker’s death and couldn’t sleep. He kept repeating, “If I had snitched, he might be alive today.” Clearly, a tragedy might have been avoided if management had previously been notified of these violations.
Case Study Two: Tragedy Averted
In another case, the company had recently posted a notice of a change to an employment policy on a bulletin board in the workplace. While several hourly employees were reading the notice, another employee came up, read the notice, and stated, “I am going to bring my AK-47 in and show them what I think of this b******* policy.” This comment disturbed the other employees, one of whom reported the statement immediately to his supervisor, who then reported it to senior management.
Before the employee returned to work the next day, the company had consulted with counsel and notified the local police department. The police were waiting, and the employee was escorted home, where the police found an AK-47 rifle and over 100,000 rounds of ammunition. The employee was taken into custody for psychiatric evaluation. In this case, the prompt reporting of an employee’s threatening conduct, a violation of the employer’s workplace violence prevention policy, averted a potential tragedy.
Breaking the Code of Silence
Unfortunately, non-management employees often are reluctant to confide in management about their co-workers’ conduct, even if that conduct poses a danger to themselves and others. This reluctance is often more apparent in union shops where management is sometimes perceived as an adversary. In some cases, there are cultural or ethnic fears by an employee who may complain about a co-worker from a different cultural or ethnic group. As the case studies reveal, however, this implicit code of silence can result in workplace accidents that cause injury or death to one or more employees.
As case study one illustrates, an employee who sees a co-worker engaged in unsafe conduct but does not report that conduct may suffer tremendous emotional and moral distress and guilt if the co-worker is later injured or killed as a result of his behavior. In addition, behavior that creates an unsafe condition poses a hazard not only to the employee who engages in the violative conduct, but also to other employees working in the area. Accordingly, it is critical that employers break down this code of silence by ensuring that employees have an open line of communication to report safety violations or unsafe conduct by co-workers or even supervisors without fear of retaliation by the employer or co-employees. Employees must understand that their own safety and the safety of others must take priority over the fear of being labeled as a snitch.
The employer can take several steps to alleviate this fear and create a “safety first” workplace culture. First, the employer must communicate to employees the importance of adhering to safety rules and policies and the potential perils of allowing safety violations to go unreported. Employees must understand that unsafe conduct puts themselves and their friends at risk, and that the emotional impact of an accident or fatality can be devastating.
Second, the employer must involve non-management employees in the development and implementation of safety rules and policies. If employees have ownership in the process, they are likely to be more willing to raise concerns or bring issues to the employer’s attention.
Third, the employer must establish some reliable and confidential method by which employees can report conduct or conditions that are unsafe. For example, the employer may set up an anonymous “hotline” where employees can report unsafe conditions. The employer must also develop some way of tracking action taken to correct any condition or violation reported by an employee.
Finally, employers must advise their employees that no disciplinary action will be taken against any employee for reporting an unsafe condition or unsafe conduct by a co-worker or supervisor. Employees are in fact protected from retaliation for making complaints of unsafe conditions under Section 11© of the Occupational Safety and Health Act.
Conclusion and Recommendations
In conclusion, it is imperative that employers break the workplace code of silence and foster an open dialogue between management and employees about workplace safety. It is recommended that employers consider the following.
• Develop written policies that advise employees of the importance of following safety-related rules and procedures in the workplace. Communicate to employees the expectation that they not only follow those rules and procedures but insist that their co-workers and supervisors do likewise.
• Regularly ask employees for input or feedback on safety-related rules and procedures.
• Establish an infrastructure that allows employees to raise concerns about workplace safety in a manner that is comfortable for the employee. This may be an anonymous tip line, suggestion box, or other way of reporting safety violations without the stigma of being a snitch.
• Develop a reliable method for tracking safety-related complaints and corrective action.
• Advise employees that reporting unsafe conditions or conduct in the workplace will not result in any form of disciplinary action against the employee reporting the condition.
• Ensure that individual employees (including supervisors) are accountable for following safety rules and procedures by taking appropriate disciplinary action where an employee violates a safety- or health-related rule. Maintain documentation of any such disciplinary action.
Labor and the Law – August 2010 RENDER | back