You Can’t Prevent Them All: How to Protect Your Company from Unpreventable Employee Misconduct

Unfortunately, workplace injuries can occur anytime, even when employers take every possible precaution to prevent them. As most employers have experienced, implementing and enforcing safety rules and policies avoids workplace injuries. But what happens when an employee ignores or intentionally breaks a safety rule and they, or someone else, is injured?

Fortunately, the Occupational Safety and Health Administration (“OSHA”) recognizes the reality that most employers face and allows employers to avoid liability for workplace injuries by proving that “Unpreventable Employee Misconduct” caused the injury.

To successfully assert the Unpreventable Employee Misconduct defense, an employer must prove that it:

  1. Established rules designed to prevent the injury;
  2. Adequately communicated the rules to its employees;
  3. Takes steps to discover violations; and
  4. Effectively enforces its rules when violations are discovered.

TNT Crane & Rigging, Inc. v. Occupational Safety & Health Rev. Comm’n, 74 F.4th 347, 359 (5th Cir. 2023) (citing Angel Bros. Enterprises, Ltd. v. Walsh, 18 F.4th 827, 832 (5th Cir. 2021)).

In essence, OSHA will consider whether the employer had a rule in place that would have prevented the injury and whether the employer effectively educated its employees and enforced the rule. If the employee at issue was unaware of the rule or did not believe somebody would discipline them for violating it, then the rule offers little protection for the employee or the employer. Accordingly, employers should remember the three E’s: Establish effective rules, Educate their employees, and Enforce their rules.

  1. Establish Safety Rules to Prevent Foreseeable Injuries

To take advantage of the Unpreventable Employee Misconduct defense, employers must show that they designed and established a rule to prevent the injury that occurred. In other words, employers must show that they had rules in place that “specifically match the violation at issue.” Southern Hens, Inc. v. OSHRC, 930 F.3d 667, 678 (5th Cir. 2019).

For example, if an employee operates a forklift in an unsafe manner and causes an injury, their employer may be able to avoid liability by showing that if the employee had followed the specific rules governing forklifts, the injury would not have occurred. Accordingly, while general rules such as “stay alert” and “do not operate this machinery while tired” are practical, they may not be specific enough to support the Unpreventable Employee Misconduct defense.

Whether an employer’s rules are sufficient is decided on a case-by-case basis. Employers should carefully consider the hazards associated with their line of work and what types of injuries may occur, and work with an attorney to develop rules designed to protect their employees from those hazards and prevent them.

  1. Educate Employees

Establishing specific safety rules is just the first step. An employer must also prove that it effectively communicated the rules to employees to avoid liability.

Employers can communicate safety rules and policies to employees in several different ways. For example, employers can require employees to acknowledge in writing that they have read and understand the employer’s rules. Some employers accomplish this by setting forth all their rules in an Employee Handbook, or a separate safety manual, and requiring each employee to sign the handbook before starting work.

Employers may also communicate their rules providing regular training to their employees, which depends on the nature of the employees’ work. For example, employees engaged in particularly hazardous work should receive training on a fairly regular basis to prevent workplace injuries and to establish that the employer effectively communicates its safety rules. Training sessions can be conducted in person or remotely, and for some types of work, they can be as simple as reiterating the rules during telephonic safety meetings. The more education and training an employer provides its employees, the better.

As a practical matter, employers need to document all the education and training they provide to their employees. Signed handbooks, signed attendance sheets, and other methods of establishing which employees attended which training sessions are all strong evidence that the employer sufficiently communicated its work rules to its employees.

  1. Enforce Safety Rules

Lastly, work rules are only effective if followed. To assert the Unpreventable Employee Misconduct defense, an employer must establish sufficient processes to discover and discipline.

Employers can monitor employee compliance in several ways depending on the type of work involved and the nature of the workplace. For example, employers can supervise their employees as they perform their work, empower every employee to report rule violations or engage in regular audits to ensure compliance with the work rules.

When an employer discovers violations, it must consistently and appropriately enforce its rules. To successfully assert the Unpreventable Employee Misconduct defense, an employer must demonstrate that the employees were not only Educated about the rule but also knew they would be disciplined for violating it. Of course, not every violation must be disciplined in a severe manner, such as through termination. But, if an employer has a “zero tolerance policy” for a fundamental rule, they must consistently enforce that policy or risk losing the ability to assert the Unpreventable Employee Misconduct defense.

Importantly, the level of supervision required and what enforcement is sufficient will vary from employer to employer, depending on the type of work involved. There is no “one size fits all” solution, so it is crucial for employers to carefully evaluate the nature of their employees’ work and consult with an attorney to ensure it has sufficient processes in place to protect their employees and shield themselves from Unpreventable Employee Misconduct.

Key Takeaways: Employers, particularly those engaged in hazardous work, should establish safety rules, educate and train their employees, and consistently enforce the rules to ensure employees follow them to protect them and shield themselves from liability for employee misconduct.

If you have questions about establishing and enforcing safety rules or how to address workplace injuries, please contact the author or another member of the Dickinson Wright Labor and Employment team.

Andrew Alvarado (Associate, Austin & Phoenix) focuses his practice in the areas of complex commercial litigation, construction, labor and employment law, and appellate law. As a member of the firm’s labor and employment practice group, he helps clients navigate the process for addressing workplace injuries and resolving OSHA citations. Andrew can be reached at (512) 770-4225 or at