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Safety Incentive Programs: Lawful? Effective?

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The ”  _____ days without an accident sign” is a common feature in many workplaces. These signs are often parts of employer safety incentive programs. These programs intend to reduce work injuries which should reduce workers’ compensation expenses for business.

Often these programs include money or other financial incentives for employees. The use of programs that financially rewards employees presents three questions to me. Are these programs lawful, are they effective and are their other ways to improve workplace safety?

Are employer incentive programs lawful?

In 2018 the Department of Labor reversed Obama era regulatory guidance that safety incentive programs would violate OSHA anti-retaliation rules. The concern of the previous administration was that safety incentive programs discouraged reporting of injuries. But even the Trump DOL believes that a lawful safety incentive program must include anti-retaliation training and also address “near misses” or incidents that were nearly accidents so as not to discourage the reporting of workers’ compensation claims.

OSHA regulations largely address how that federal agency enforces workplace safety law. Employees can’t sue their employers for violations of OSHA. But in certain industries, OSHA allows whistleblower cases for employees reporting unsafet work condtions. Similarly, state laws can allow employees to being retaliation cases for reporting safety problems and or reporting a work injury. Safety incentive programs that penalize workers for injuries could violate anti-retaliation laws depending on how they are designed.

Are safety incentive programs effective?

Safety experts have questioned the effectiveness of directly rewarding employees for not being hurt. These experts believe that these programs lead employees to cover up injuries which could  cover up bigger safety issues. Philadelphia attorney Richard Jaffe criticized safety incentive programs because they are premised on the fact that employees create unsafe conditions. Put another way, the programs are premised on the assumption that employees are to blame for getting hurt.

There is powerful anecdote about the failure of some safety incentive programs. The Massey Energy Upper Big Branch Mine explosion killed 29 West Virginia minors in 2010. Massey’s CEO Don Blankenship had a safety incentive program that included sporting equipment and luxury goods for minors who didn’t miss work for accidents. Blankenship was convicted of violating safety standards in connection with the Upper Big Branch explosion.

The Upper Big Branch explosion coupled with the callousness of Don Blankenship is an extreme example of what could go wrong with employee safety incentive programs.

So what works?

Safety programs that involve employees working with management are the most effective. Employee input is critical because employees often have the most knowledge about a job. They also have a strong incentive to avoid injury.

Unions give employees a say in their workplace. Not surprisingly, studies in the United States and Canada show unionized workplaces are safer than non-unionized workplaces. Scholars have coined the term “union safety dividend” to describe the workplace safety benefits associated with unions.

I think unions are a better safety tool than programs that target worker behavior because they don’t assume that workers are at fault for their injuries. There are times where an employee may be at fault or share fault for an injury. But that’s why workers compensation pays limited benefits regardless of fault. Workplace safety programs that incorporate employee and employer viewpoints realize that risks in the workplace can come from employer, employee and third parties like equipment manufacturers.

 

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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