Pub. 1 2012 Issue 2

F all Issue 2012 29 their defense, the employer must plead that the act of the employee that had caused the injury was an independent act of the employee, and the employer should not be held liable. The employer argues that it did what the law required it to do, but the employee violated policy & procedures and that is what caused the injury. In order to prevail in this affirmative defense, which must be pled on the appeal following the citation, an employer in California must prove and prevail on all five elements as follows: 1. The Employee Was Experienced and Trained on the Job Being Performed: In the case at hand, the employee was a diagnostic specialist on automobiles and the employer presented 79 training certifications from the automobilemanufacturer out of which 30 were on engine diagnostic and performance checks. Training certification froma nationally recognized body was also presented. OSHA accepted the employer’s claim on this issue. Interestingly, OSHA looked at all safety training completed by the technician. CSI’s advice is to keep your monthly safety training handy. 2. Employer Has A Well Devised Safety Program: Employer must prove that a well-devised safety program, which includes employee training for their particular job assignments, is in effect. The employee presents its IIPP Program and training from the service manual provided by the automobilemanufacturer relevant to the service operations beingdone when injuryoccurred. OSHAaccepted this element of thedefenseaswell. 3. Policy of Sanctions Against Employees Violating Safety Program: The employer must have a policy of sanctions against employees violating safety rules or involved in unsafe acts.The employer stated that one had never been required as the injuries were virtually non-existent and one was never deemed necessary. The employer lost on this element as no earlier enforcement/disciplinary action had been documented. 4. Employer Effective Enforces the Safety Program: The written disciplin- ary policy should be implemented. OSHA held that the enforcement element of the safety program had “no teeth” and that the safety program had not been enforced. 5. EmployeeCaused theSafety InfractionWhichHeor SheKnewwasContra to Employer’s Safety Requirement: The employer must prove that the employee had knowledge of this safety requirement violation of which caused the injury.Theemployerspled that the safety rules, acknowledged and signed by the employee, were available. Also, the shopmanual (to service automobiles), which technicians refer to repeatedly, hadoutlined the safety procedures including relevant safety issues. Sam Celly has been helping automobile dealers comply with EPA & OSHA regulations since 1987. He is the past-Chair of the Law Committee and the Environmental Issues Committee of the AIHA. Sam has a BS & MS in Chemical Engineering followedby a JD fromSouthwesternUniversity School of Law. You can contact himat sam@cellyservices.comor at 562-704-4000. SPRING 2012  19 EXPERIENCE... Over 25 years of trusted insurance solutions. DETAILED ANALYTICS... Methodical approach to the bottom line. TOTAL CLARITY... Employee benefits made easy. WELLNESS... Progressive programs designed to promote healthy lifestyles. INNOVATIONS... Business solution to reduce healthcare cost. RESULTS... Proven track record time and time again. 23716 Birtcher Drive Lake Forest, CA 92630 888-661-0700 www.penben.com PenBen is Southern California’s Premier Benefit Broker Collaborative Armando Buitrago   abuitrago@penben.com Ron Joy   rjoy@penben.com Alison McCallum   amccallum@penben.com Mark Pattinson  mpattinson@penben.com Eric Trost  etrost@penben.com AutoCo nections 2012 Co ference & Expo Sept FNCFS t Aria Resort & Casino, Las Vegas Connecting your dealership with the right technologies, strategies, and leaders to create powerful new outcomes. Register Today 908-601-6475 www.AutoCon2012.com Powerhouse Keynote Speakers Plus 70 Workshops, Panel Discussions & Hands-on Labs Free admission to the Automotive Website Awards Ceremony on Sept 5th PCGConsulting T e c h n o l o g y s S e a r c h M a r k e t i n g s D e s i g n s S o c i a l M e d i a t D aler Principals recei e Complimentary Registration t Expanded Expo Hall: Receive $10,000 Dollars in Vendor Vouchers MORE REASONS TO ATTEND THIS FALL