Product liability cases focus primarily on the design of the machine. When dealing with industrial accidents, the design question is generally whether the manufacturer provided adequate guarding or detection technology. Recently, we have filed a major case where the conduct of the employer might overshadow the design of the machine. I have dealt with many cases where the manufacturer offered adequate guarding or detection technology; however, the employer either intentionally bypassed the safety devices, never installed the devices, or failed to make repairs after the safety devices were neutralized due to mechanical reasons.
More often than not, employees do not appreciate the dangers to which they are exposed. However, in the event that employees do appreciate the danger of working with or near machinery with neutralized safety devices, what should they do when they are asked to operate machines with unguarded hazards?
Lawyers in our firm recently opened a file involving injuries to four separate employees while working on the same machine. The press in question was sold with adequate guarding and sensor technology. The sensor included photo-eye beams that would not allow the press to activate if any part of the operator’s body is in harm’s way. After the last injured employee contacted our office, we directed him to call the Occupational Safety and Health Administration (OSHA) to report his incident along with the other injuries. OSHA conducted a surprise inspection and found the machine’s safety devices to be inoperable. OSHA also interviewed all of the injured employees along with the employer’s management and maintenance crew. We expect OSHA to find that safety regulations were violated because multiple employees were required to operate machinery knowing that safety devices were inoperable.
Even after OSHA’s investigation, one of the injured employees was asked to operate the subject press even though the safety devices were still inoperable. We instructed the employee to report the employer’s conduct to OSHA again. Obviously, the employee is concerned he will lose his job or will suffer consequences if the employer discovers he instigated the inspection.
All employees and the lawyers who represent injured employees should be aware of OSHA’s Whistleblower protections. If an employer retaliates against an employee who engages in protected activity relating to workplace safety, the employee can file a complaint with OSHA. If OSHA finds that the employer participated in retaliatory conduct, OSHA could issue an Order requiring the employer to reinstate the employee, pay back wages, restore benefits, and other possible remedies to make the employee whole. Just like in other OSHA actions, the employer would have the right to appeal any OSHA Orders.
In addition to OSHA Whistleblower protections, some states, like Alabama, have statutory and common law remedies in place that prevent an employer from taking employment action against an employee for exercising their rights.
If an employee contacts a lawyer expressing concern with working on or near machinery with bypassed or inoperable safety devices, they should advise them to refuse until the safety devices are repaired and to immediately contact OSHA. The alternative is to expose themselves to hazards that could lead to death or serious bodily injury. Clearly, employees are primarily concerned with maintaining their employment so they can provide for themselves and their families. All too often, employees are killed or seriously injured through no fault of their own. More often than not, the employer compounds the injury or death by blaming the employee for the incident.
OSHA Whistleblower remedies and state laws preventing retaliation are there for a reason. Employees need to be aware of their rights and must have the courage to exercise their rights. If you need more information on workplace accidents and employee rights, contact Kendall Dunson, a lawyer in our firm’s Personal Injury & Products Liability Section, at 800-898-2034 or by email at Kendall.Dunson@beasleyallen.com.
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