Legal tip

Faced with constant pressures of doing everything possible to keep people safe at work, coupled with concerns about the Mine Safety and Health Administration's (MSHA) elevated enforcement, companies are seeking better ways to manage safety and health at mines. There are legal implications to everything a company does. And there are legal implications to things the company does not do.

Here are thoughts about how safety can be successfully managed consistent with good legal procedure.

A safety audit can be an excellent way to get started. However, an audit can backfire if not done prudently. In other words, if a company puts together an audit team, and that team inspects and makes a comprehensive list of every deficiency, that list will constitute a record of violations and unsafe conditions that could come back to haunt the company.

Problem: The second you identify a violation, you have a legal obligation to correct it. If you do not correct it right away, you can be accused of "knowingly" allowing a violation to exist. Needless to say, this is a serious charge and can lead to company and personal liability.

Addressing it: Rather than spend days making lists of things that exist and have not been corrected, it is infinitely better to have an "action team" of auditors who can fix or remove from service anything that is found to be lacking from a safety standpoint. Then make a record of the corrections. In this way, you build a helpful legal record of improved conditions – much better than making a list of hazards and violations that you intend to fix, but have not yet done so.

Using the audit information is the next important step. Consider what the company should do to prevent reoccurrence of conditions that fall short of what the company wants or may actually be violations.

Problem: If you write up deficiencies that you have not been able to eliminate, you will have a negative record for which you could be criticized if it falls into the hands of government inspectors, investigators or plaintiffs in a lawsuit against the company.

Addressing it: Create a list of actions taken to improve safety during the audit. Add to the list steps that could be taken to prevent or minimize similar conditions in the future (understanding that while perfection is out of reach, it is something to reach for). In other words, an action list is infinitely superior to a problem list.

Setting safety goals for the future is critical. It is often said that having specific goals greatly increases likelihood of accomplishment. It has also been said that putting goals in writing further increases prospects for success.

Problem: In seeking to set goals, there can be a tendency to focus on the negative – problems, things that go awry, unsatisfactory behaviors that people never seem to get over. All of this becomes a record of what is wrong at your operation – what has apparently been wrong for a long time. In the wrong hands, this information could be used against you. Your good intentions for the future could be lost in references to a bad past.

Addressing it: Make a list of positive goals without reference to past problems. You already know what you need to set the goals. Instead of talking about the past, set up goals to avoid all potential hazards and keep sharp on recurrent issues that pose problems throughout the industry. This includes "housekeeping" (which accounts for an inordinate amount of MSHA violations in aggregates and cement facilities – over 10 percent of all violations issued).

Publishing a safety plan backed by the highest level of management can work wonders in getting good results.

The way to success is to faithfully implement a simple plan.

Michael T. Heenan is an attorney for one of the nation's largest labor and safety law firms. Contact him at Ogletree, Deakins, Nash, Smoak & Stewart, 2400 N. Street, Fifth Floor, Washington, DC 20037. E-mail: michael.heenan@odnss.com