Friday, August 17, 2012

Innocent Until Proven Guilty

I read a very disturbing article today from The Herald Star (link here). The second paragraph stated:
But we remembered what Sarah Ghezzi had told us about preparing for a visit from OSHA, and we were ready. We invited them into our conference room and at first they were very formal advising our boss of his rights and his right to an attorney. They told us an employee had filed a complaint with their office and we were presumed guilty until proven innocent.

I am hoping that someone from OSHA did not say this or this is a typo. But if it is not, then this is VERY DISTURBING! Is OSHA not part of our government? Does our government not presume Innocent Until Proven Guilty?

As a safety person, we need to maneuver the legal system just as much as we maneuver the  job site. Many times government officials take the presumed guilty until proven innocent position because they are protecting someone (presumed) innocent: the police officer protecting children from drug dealers, OSHA protecting workers from the company owner, airport screeners strip searching grandmothers to protect us from terrorists.

What these people don't realize that they are harming more people than they protect by eroding away our civil liberties. We have turned our schools into prisions (metal detectors, uniforms, guards) and then question why our kids behave like criminals.

Note: This is a good lesson for workplace violence prevention. There is a balance to be achieved. Turning your workplace into a prison will not eliminate violence, it may escalate it by creating tension. And what about searching workers to protect trade secrets? You accuse everyone every day of stealing from you. How does that make a person feel?

I digress. Let me clarify a misconception about "Innocent Until Proven Guilty" before I continue. 

First, it should be pointed out that if you did it, you're guilty, no matter what. So you're not innocent unless you're truly innocent. However, our system presumes innocence, which means that legally speaking, even the obviously guilty are treated as though they are innocent, until they are proven otherwise.

The concept of the presumption of innocence is one of the most basic in our system of justice. However, in so many words, it is not codified in the text of the Constitution. This basic right comes to us, like many things, from English jurisprudence, and has been a part of that system for so long, that it is considered common law. The concept is embodied in several provisions of the Constitution, however, such as the right to remain silent and the right to a jury.

OSHA is an organization made up of human beings. Just like anything else human, there are good people and bad people. Not all human intentions are bad, it may be a lack of knowledge of how your good intentions are doing harm.

So, how to deal with OSHA. Always in a professional manner and with respect. I assume the best in people until they give me reason otherwise. I also take the position (as previously stated) that what may appear to be an attack on me may be misguided, good intentions.

So what to do?

Try to get them (OSHA) back on track, you have a safety program, maybe just not a complete program. Put the issue in context to the overall safety.  Missing 10 out of 100 safety issues is better than missing 9 out of 10.

Look at your workplace, are you making an effort to provide a safe work environment? Are there unguarded machine gears everywhere?

Exposed electrical contacts?

Do we do orientation training? Do we do safety training? Just as many "inspections" are not the product of bad intentions, so to many OSHA violations are not the product of bad intentions. I had a client that did lots of safety training. They did tool box talks, production scheduling, and covered any new conditions in the workplace and their safety issues every Monday. What they didn't do is document it. Simple fix: a sign off sheet for every Monday morning. Afterwards the supervisor listed the topics and checked one of 5 boxes next to each:
  1. Safety
  2. Production
  3. Remediation
  4. Employee Concern
  5. Other
Documentation, documentation, documentation. Document everything.

Take pride in your work. If you are proud of your accomplishments and your safety program, then you will not be hiding anything.

Explain your processes, both safety and work. An inspector may be making assumptions, an explanation may clarify the situation.

OSHA knows that most of the employee complaints are from disgruntled employees looking to get back at an employer. For every visit they make, they probably see 1000 complaint that are just retaliation by an employee.

Ask for relevant code. What standard are you supposedly violating? Is the standard clear? Does it even apply.

This will take care of 90% of the inspections.

If push comes to shove. If you are innocent, you may have to get an attorney. Don't be afraid to fight if you are right.

If you are guilty of negligent safety practices, then the only thing  you can do is correct the problems from here on out.

Again, let me reiterate I am hoping that someone from OSHA did not say this or this is a typo. Until we know the truth, I will presume OSHA innocent until proven guilty.

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