Lessons Learned From The Department of Labor and Industries


My name is Donald Vose, Vice President of the Roofing Contractors Association of WA (RCAW). I am President of Legends Roofing Co., Inc. which started business on March 15, 2002 and have offices in Puyallup and Mukilteo, Washington. We currently have 120 employees. Our primary focus is residential new construction, however we do perform other services such as reroofs. I started my roofing career in 1976 and have been in a management or ownership role since 1982.

The reason for this article is to share with you our recent experience with the Department of Labor & Industries (L&I).

Perhaps one of the worst phone calls we as owners of roofing companies can receive is from an L&I compliance officer. Most often this call means that a safety infraction has been observed and we can expect a citation and notice and monetary fine in the mail. Normally, the first offense of a safety rule receives a small monetary penalty. If you continue to receive citations for the substantially similar hazards (repeat violations) the monetary penalty increases. You have the right to appeal any citation and notice or corrective notice of redetermination you receive. Most often we appeal under “unavoidable employee misconduct.”

The burden of proof using “unavoidable employee misconduct” defense is on the employer. There are four elements an employer must prove using this defense. The elements per RCW 49.17.120 (5) (a) are:

  • You have a “thorough safety program, including work rules, training and equipment, designed to prevent the violation.”
  • “Adequate communication of these rules to employees.”
  • “Steps to discover and correct the violations of its safety rules.”
  • “Effective enforcement of its safety program as written in practice and not just in theory.”

Legends Roofing Co., Inc. has increased its size every year. In 2003 we did 885 jobs, in 2004 we did 2161 jobs, in 2005 we did 4112 jobs and in 2006 we did 6296 jobs. It goes without saying that our company has a huge exposure. Most of our jobs are located in the largest developments in the state. These sites are clearly marked with easy access. Because roofing is a high visibility job, we are regularly inspected by compliance officers from L&I and these inspections have resulted in several citations against our company. Frustration began to mount when virtually every appeal of a citation was upheld.

It became apparent that no matter what safety efforts we implemented we could never prevail on an appeal because of item #4 above. Essentially we were not “effective in practice.”

My company has and continues to spend substantial resources on its safety program. We currently have two full time safety personnel who have no ties to production. They spend 100% of their time on safety. We have developed an Accident Prevention Program (APP) tailored to our business. We conduct in house safety inspections daily. Our disciplinary policy includes immediate termination of any employee violating fall protection on the first offense. We have worked with L&I consultants, private consultants and safety companies to develop an APP that is recognized as one of the best in the industry. So after all these efforts, I was struggling to figure out why we were not “effective in practice.”

After receiving a 9 time repeat violation for fall protection in October 2006, I decided to hire an attorney and appeal this violation to the Board of Industrial Insurance Appeals (BIIA). As luck would have it, prior to our case being heard by BIIA, our firm received four more violations. Frustrated, upset, ticked off and dejected I told a distributor we use my story. This distributor had recently hired a safety consulting firm to help them. The consulting firm agreed to meet with my safety director and myself. One of the topics discussed in our meeting was that “effective in practice” was not defined. How can you ever be “effective in practice,” if we as employers don’t know what is expected of us to be

“effective in practice?” Research by this consulting firm found that L&I has declined to clearly define “effective in practice” stating in essence that determining whether something is “effective in practice” is situational. After this meeting it was determined that this safety consulting firm could not help my company because essentially we were already doing everything we could. Our presentation was impressive enough that the consulting company contacted the Assistant Director of L&I, Stephen M. Cant to take a meeting with me. A meeting was set up for March 19, 2007.

I had asked Gary Smith, lobbyist for the RCAW; and George Madsen, past President of the RCAW, to join me. Present from the Department of Labor and Industries was Stephen M. Cant, CIH Assistant Director; Anne F. Soiza, Statewide Compliance Manager; Dan McMurdie, Construction & Specialty Services Program Manager; Melvin E. James, Statewide Program Manager Consultation Education and Outreach Services; Jim Fernald, CSP Deputy Assistant Director; and Beth A. Hoffman, Senior Program Manager Regulatory & Legal Services.

The meeting was an open forum. All parties spoke openly and freely. My presentation focused on five items.

1. The “Goal of L&I.” Essentially one of the main goals of L&I is to provide a safe and healthy workplace. This is accomplished through establishing safety and health standards, education, consultation and enforcement.

2. Employee responsibilities, WAC 296-800-12005 describes the employee responsibilities. This WAC states that an employee must apply the principles of accident prevention in their daily work and use proper safety devices and protective equipment as required by their employment or employer.
3. Unavoidable employee misconduct. RCW 49.17.120 (5). No citation may be issued under this section if there is unavoidable employee misconduct that led to the violation, but the employer must show the existence of:

  • A thorough safety program, including work rules, training and equipment designed to prevent the violation;
  • Adequate communication of these rules to employees;
  • Steps to discover and correct violations of its safety rules; and
  • Effective enforcement of its safety program as written in practice and not just in theory.

My position was that item (iv) is an undefined requirement that appears to be unachievable. Stute WRD 27 does define the requirements necessary for a general contractor to be “effective in practice” but there is not a WRD that defines what a roofing contractor must do to be “effective in practice.”

4. Disciplinary policies – As employers, we come up with incentives to our employees so they will follow our APP. One of the largest problems we face as employers is that the employee is not held accountable for their actions. Legends Roofing Co., Inc. has a tough disciplinary policy that we have aggressively implemented. But, as effective as it is, it has virtually no effect on the worker who violated our safety requirements. Instead, it hurts our firm, and helps our competitors. When we terminate an employee for violating our APP, that employee simply goes to work for one of our competitors, usually within a day or two, because qualified roofers are in such high demand. The net result is no punishment to the employee, my competition benefit greatly and my firm receives a citation if applicable. How is this effective?

5. Repeat violations. I believe that the size of a company should be considered in determining citation fines for repeat violations. Currently small employers with 1-25 employees receive an automatic 60% reduction in a base penalty but large employers receive no reductions. In a three year period an employer who receives 1 citation in 1000 jobs vs. an employer who receives 10 citations in 10,000 jobs each has a citation rate of 1/1000 however the larger employer now has 9 repeat violations.

During the meeting the representatives from L&I asked me several questions, some specific and some general. Most questions were directed towards the efforts and commitment my firm has with regards to providing a safe work environment. I was impressed with all of the Departments representatives and was very relaxed communicating with them. I spoke openly and honestly. At the conclusion of the meeting Stephen M. Cant, the Assistant Director, directed Beth A. Hoffman, Senior Program Manager Regulatory & Legal Services, to produce a directive that clearly defines “effective in practice” for all industries. It was agreed that the RCAW along with Gary Smith would be allowed to review and make comments on this directive and that the deadline for this directive would be completed by the end of fall 2007.

As a result of this meeting, Beth A. Hoffman, Senior Program Manager Regulatory & Legal Services, committed to handle my appeal of the four citations my company had previously received. On March 29, 2007 my safety officers Ron Mirkil and Lloyd Barnes, my partner Tim O’Brien and I met with Beth A. Hoffman and Nancy Bell, Safety and Health Appeals Manager, to conduct an informal appeal hearing for our four citations. We had chosen not to have most of the hearing recorded for no other reason than to have a more open forum.

Beth and Nancy had reviewed documents we had previously provided L&I. These documents included our APP, safety inspections, safety minutes and disciplinary actions. Although we perform internal random safety inspections of our job sites, Nancy and Beth had identified a specific flaw in our inspection process which was that most of our inspections occurred during a narrow time period of the day. For our inspection process to be effective in practice we need to vary the time of inspections. In other words we need to be able to show the department that we perform inspections in the early, middle and late hours of the work day. This way our employees will never know when an inspection will occur. One of our employees made this comment after a 7:30 AM safety inspection by Ron Mirkil, “Aren’t you supposed to be in the office now?” Another bit of advice given to us was that we develop a “PPE” checklist. WAC 296-800-16020 requires employers to provide personnel protective equipment for any employee exposed to a workplace hazard. It is not enough to provide an employee with PPE gear and expect that he has it everyday. We need to document that the employee has his or her gear prior to starting a job. The “PPE” checklist is the documentation needed. The hearing lasted about 4 hours.

The settlement offer for these violations was a favorable settlement. The Department of Labor and Industries took this action in acknowledgement of the positive and proactive steps we take towards implementing and enforcing our APP. I want to express to you how informative both Beth and Nancy were during this hearing. I walked away feeling that these individuals genuinely cared about my company and wanted to improve our APP.

Prior to March 19, 2007, I was a frustrated employer who thought that L&I was only interested in collecting revenue for the supplemental pension fund. After these meetings, I have a completely different opinion of L&I. I realize now that L&I has a job to do and so do each of us. As employers in the roofing industry we need to work with L&I to develop a Accident Prevention Program (APP) for RCAW members that is recognized by L&I as a superior program. It will be up to us, as employers, to passionately implement your Accident Prevention Program. My goal is for L&I to stand up and applaud the employers who meet the criteria for “unavoidable employee misconduct.”

If you would like to be involved in the Safety Committee for RCAW please contact the RCAW office at 253.282.9823.

(Previously Published in the July 2007, RCAW Roof Report)

 

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