The Contractor's Compass - June 2022 by American Subcontractors Association

MONTHLY EDUCATIONAL JOURNAL OF THE FOUNDATION OF THE AMERICAN SUBCONTRACTORS ASSOCIATION

JUNE 2022

Safety Around the Clock

1004 Duke Street, Alexandria, VA 22314 | (703) 684-3450 | www.asaonline.com | communications@asa-hq.com

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FASA'S

JUNE 2022

EDITORIAL PURPOSE The Contractor’s Compass is the monthly educational journal of the Foundation of the American Subcontractors Association, Inc. (FASA) and part of FASA’s Contractors’ Knowledge Network. FASA was established in 1987 as a 501(c)(3) tax-exempt entity to support research, education and public awareness. Through its Contractors’ Knowledge Network, FASA is committed to forging and exploring the critical issues shaping subcontractors and specialty trade contractors in the construction industry. The journal is designed to equip construction subcontractors with the ideas, tools and tactics they need to thrive. The views expressed by contributors to The Contractor’s Compass do not necessarily represent the opinions of FASA or the American Subcontractors Association, Inc. (ASA).

MISSION

To educate and equip subcontractors and suppliers with the education and resources they need to thrive in the construction industry. Additionally, FASA raises awareness about issues critical to and about construction in the United States.

SUBSCRIPTIONS The Contractor’s Compass is a free monthly publication for ASA members and nonmembers. For questions about subscribing, please contact communications@asa-hq. com.

ADVERTISING Interested in advertising? Contact Richard Bright at (703) 684-3450 or rbright@ASA-hq.com or advertising@ASA-hq.com.

EDITORIAL SUBMISSIONS Contributing authors are encouraged to submit a brief abstract of their article idea before providing a full-length feature article. Feature articles should be no longer than 1,500 words and comply with The Associated Press style guidelines. Article submissions become the property of ASA and FASA. The editor reserves the right to edit all accepted editorial submissions for length, style, clarity, spelling and punctuation. Send abstracts and submissions for The Contractor’s Compass to communications@ASA-hq.com.

ABOUT ASA ASA is a nonprofit trade association of union and non-union subcontractors and suppliers. Through a nationwide network of local and state ASA associations, members receive information and education on relevant business issues and work together to protect their rights as an integral part of the construction team. For more information about becoming an ASA member, contact ASA at 1004 Duke St., Alexandria, VA 22314-3588, (703) 684-3450, membership@ASA-hq.com, or visit the ASA Web site, www. asaonline.com.

F E AT U R E S Managing an OSHA Inspection—Are You Prepared?..................................12 by Johnny Zitko, AssuredPartners; and Roger Paveza, Vista Safety Consulting

How to Manage an OSHA Inspection— Before, During, and After.........................................................................................17 by Robert Tuman, CCR Safety Consulting

Psychological Safety Is Key for Enabling Diversity in the Workplace....................................................................................................... 20 by Dale Carnegie Staff

Nine Strategies for a Safer Construction Business................................. 23 by Duane Craig, Writer

How to Create a “See Something, Say Something” Safety Culture...........................................................................26 by Ben Stevens, Kent Companies

Safety Is Profitable, Unsafe Job Sites Are Costly........................................28 by Patrick Hogan, Handle.com

D E PA R T M E N T S ASA PRESIDENT'S LETTER.................................................................................. 5 CONTRACTOR COMMUNITY..............................................................................6 ALWAYS SOMETHING AWESOME ASA of Greater Baton Rouge......................................................................................8 LEGALLY SPEAKING

Be Prepared: OSHA Defense Begins BEFORE The Citation.........................10 by Joseph M. Kanfer, Esq., Woolford Kanfer Law, P.C

LEGALLY SPEAKING

How Should a Subcontractor Best Defend Against an OSHA Citation? Don’t Have a Citation To Defend....................................... 15 by Michael Metz-Topodas, Cohen Seglias

QUICK REFERENCE Upcoming Webinars................................................................................................ 31 Coming Up.................................................................................................................... 31

PRESIDENT 'S LET TER Dear Readers — It’s the start of summer, and I know many of us – my family included – are taking a break to recharge, reconnect, and prepare to reengage with the balance of the year ahead. I hope that you find the opportunity to do the same - both with your family and with your company over the summer months. . y leadership coach is a former army green beret and West M Point graduate. We discussed the maxim in our last coaching session that, “You aren’t promotable if you aren’t replaceable.” It’s such a simple statement, but there is a huge amount of truth to the statement. One of the great things about the officers that are leading ASA, including incoming ASA President, Rusty Plowman, is we, as an organization, have embraced this philosophy for a long time, with our history of amazing ASA Presidents who have developed an incredible follow-on team that is in the wings. I can assure you, the slate of officers coming forward is of absolute rockstar quality, and great things are on the horizon for this organization. .With that encouragement, one of the best things you can do for your company and for ASA is to renew your membership in ASA and encourage your chapter members to promptly renew their memberships. We have had substantial legislative and legal successes this year, and those efforts require a budget to support the same. Likewise, your local chapters also require funds to operate, which are directly supported by your membership dues. As we have said before, ASA projects nationally, but the engagement is at the local/chapter level. The more you put into ASA with your time and effort, the more you will get back out of ASA – both at the chapter and national level. I encourage you to spend a little time in Contractor’s Compass this month and our focus on safety and OSHA issues. It is my prayer every day that everyone on the Lone Star Paving team makes it home safe and sound, and I am sure we all share that thought in our own companies. No task that we undertake is worth putting the safety of our teams at risk. I think you will find the topics and articles this month to be quick reads, and that you will take a few thoughts and ideas from them to improve your company. . hank you again for the opportunity to have served as your 2021-2022 National ASA T President. I have been deeply humbled by the opportunity, and am excited for what the future will bring with Rusty Plowman at the helm as ASA President!

Sincerely, Brian K. Carroll ASA President 2021-2022

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CONTRACTOR COMMUNIT Y

Foundation Software, LLC Acquires Construction Safety Software Provider Harness Foundation Software announced the acquisition of construction safety software provider, Harness Software. With this acquisition, Foundation adds a much-asked-for piece to their evergrowing software platform. Creators of The Harness Safety App, Harness offers easy-to-use safety tools for specialty contractors, including those in the roofing, electrical and mechanical trades. With Harness, contractors can easily track toolbox talks, inspections, training, certifications and more — increasing jobsite safety and allowing for better management of company health and safety programs. “When we started Harness Software, our goal was to help as many contractors as possible to improve their health and safety programs,” said Tom Whitaker, CEO of Harness Software. “By joining with a large, successful company like Foundation Software, we’re able to expand our reach to better achieve this goal.” Harness will join Foundation’s expanding construction management platform, which currently features accounting, project management, estimating and takeoff software for specialty contractors, and a construction-specific payroll service. Mike Ode, CEO of Foundation Software, elaborated on what the

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addition of Harness to Foundation means for the industry as a whole. “We’re thrilled to add Harness to our family of companies,” Ode said. “In talking with contractors over the years, a dedicated safety application was always one of the top-requested features. With Harness, we’re able to offer our customers another industry-specific tool to help run their business.” Visit Foundation Software and Harness Software to learn more about their products.

Safety Month Focus on Fall Prevention Take a look at the Resources on ASAHouston’s website on fall prevention. In both English and Spanish, various videos and sheets discuss fall rescues, ladder safety, stilts training, lanyards and harness inspections.

Biden Administration Announce Talent Pipeline Challenge On June 17, the Biden Administration announced the “Talent Pipeline Challenge,” that would connect employers to organizations that offer job training, such as unions, industry associations, and community colleges. The effort also encourages state and local governments to use funding from the infrastructure law and the American Rescue Plan to invest in opportunities to provide workers with training to support T H E

industries that will see increased demand under new infrastructure investment and workers acutely affected by the pandemic. The initiative will be focused on working with employers and training providers in broadband, construction, and electrification, including electric vehicle charging stations, and battery manufacturing to ensure there is an inclusive pipeline of workers to fill future infrastructure jobs. The effort will also encourage employers who participate in the challenge to recruit women and workers of color, and to provide services like childcare and transportation assistance. The Administration plans to hold several upcoming events touting the workforce training investments made under the American Rescue Plan and future projects under the Bipartisan Infrastructure Law that collectively are aimed at filling essential jobs in the public sector and the new private-sector jobs created under the infrastructure investments.

ASA Supports the Strengthening Small Business Subcontracting Act In the beginning of June, the House passed ASA supported legislation (H.R. 7694), the “Strengthening Small Business Subcontracting Act,” which was unanimously passed and reported out of the U.S. House Committee on Small Business. This bipartisan

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legislation authored by Reps. Mfume (D-MD) and Stauber (R-MN) revises the language of the Small Business Act to reward prime contractors who have a better history of working with small businesses and abiding by their subcontracting plans submitted to federal agencies when bidding on contracts. This legislation shields small businesses in the contracting space and incentivizes larger federal contractors to honor their commitments to small business subcontractors by making past performance on subcontracting plans a factor in whether a company is awarded future work. Rep. Stauber is the co-chair of the Construction Procurement House Caucus and he stated “with each passing year, it’s getting more and more difficult for small businesses to compete for federal contracts. Small businesses are the engine of our economy. In Congress it’s our duty to not only support small businesses, but also to ensure that they have a chance to participate in federal projects. At a time when small businesses are struggling with inflation, a supply chain crisis, and a labor shortage, this legislation will provide them an opportunity for success.” Our thanks goes out to Reps. Mfume (D-MD) and Stauber (R-MN) for their prodigious work on this important legislation to the construction subcontractor community.

withdrew it on May 6, 2021, but on March 14, 2022, a district court vacated DOL’s decision to delay and withdraw the rule, and the 2021 final rule remains in effect. DOL plans to engage in new rulemaking

on this issue and seeks public feedback. There was a forum for employers on June 24. A separate forum for workers is scheduled for June 29.

DOL Reviews Independent Contractor Rule On June 3, 2022, the Department of Labor’s Wage and Hour Division announced that it is reviewing regulations addressing the distinction between an employee and an independent contractor under the Fair Labor Standards Act (FLSA). Independent contractors are not guaranteed the federal minimum wage and overtime pay that covered employees receive under the FLSA. DOL published a final rule on this issue on January 7, 2021. The rule adopted an economic reality test that considers whether a worker operates their own business or is economically dependent on an employer for work. DOL delayed that rule on March 4, 2021, and then

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ASA National Board Meeting This year’s June ASA national board meeting headed to the heartland, St. Louis, MO. While board members discussed industry challenges, Association budgets, and other business, they did take time to check out Busch Stadium, the Cardinals' 46,000-seat retro-style ballpark. Shown from left to right: John Reynal, Beverly Reynal, Ray Moya, Kenneth Moore, Patty Peterson, Rusty Plowman, Richard Bright, Marla Holbrook, Scott Holbrook

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By Angie Weidel, Executive Director, ASA of Greater Baton Rouge

On April 6th, 2022 our Greater Baton Rouge Chapter hosted our first annual Bridging the Gap Expo at Walker High School in Walker, LA. This was a “labor of love” project from our Programs and Events committee. Our goal was to showcase who we are to the community while also creating awareness of our specific trades to high school students. In an area that is so heavily focused on the oil and gas industry, our goal was to “capture the imaginations” of our young people toward commercial construction trades and possibly change their expectations of what a career in the construction industry actually looks like. Four of our member companies, Cornerstone Commercial Flooring, Equipment Depot, Sitech LA, and

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Five-S Group invited 10 High School juniors and seniors to spend 20 hours of hands-on work on a project of their choice showcasing their trade. These hours resulted in a video or physical scale model presentation that was featured in their booth at the Expo on April 6th. Walker High School donated the use of their new gym for our 18 exhibitors and their courtyard for our equipment showcase area, which exposed students and the community at large to a wide range of services, products and trades. Industry professionals in attendance ranged from real estate developers and general contractors to industrial suppliers. Juniors and seniors were allowed to flow through the gym and check out each exhibitor present. Many

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of these exhibitors were pleasantly shocked when they not only ran out of swag items offered, but at the intelligent questions these students asked about their companies. The students that participated in the project showcase were interviewed toward the end of the expo and admitted that beforehand, had little to no knowledge of what the possibilities might be for them in construction. Several said that they thought construction was simply “manual labor” or that it was “like digging a hole and hoping for the best” or better yet, “it’s the guy holding the sign during road construction that tells you when to go and when to stop.” When asked what they thought now that they’d had an opportunity to see more actual opportunities, they said their minds had definitely been changed. Statements such as, “I had no idea so much technology was used in construction,” were abundant! Topping off our event was the voting that took place using QR codes and smart phones to determine the winners in given categories. Each student in three of the winning categories received $325 in scholarship money to put toward their education. Our National ASA team and the other Executive Directors were sent a QR code to determine who the winner was for the Best Social Media Campaign category which went to Joe Weidel and his team with Equipment Depot. The member companies that hosted students and created projects voted in the same fashion for the Best Teamwork Category. John Landry and the team at Sitech LA won this category. The students in attendance

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voted for the Most Innovative category which was held by Paul Henderson and the team at Five-S Group. Our Best in Show Gary Thornton Scholarship was voted on by the chapter members and exhibitors. Ben Lowery and Cornerstone Commercial Flooring took home this top prize which included a $500 scholarship for each student. All 10 students also received a $100 gift card. At the end of the Expo, members and non-members alike were very pleased with our success. Special shout out to Jason St. Pierre, Principal of Walker High School and his administrative assistant, Kelly Becnel for all of their hard work and efforts putting us in touch with teachers and students, tables and chairs. We could not have done this without their support and belief in their students and in us! As of now, we are planning to make this an annual event that will hopefully include many more students at other schools in our local area. We couldn’t be more thrilled with the success of this event! This is our way of tackling the workforce development issue that we all face. The students

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were excited about next year and the future opportunities available to them in construction. The school administration was thrilled to have our local tradesmen take a muchneeded interest in showing high school students an accurate representation of construction careers. The member companies and project hosts found renewed value in belonging to our chapter due to our efforts here. Nonmember companies…they joined! As of this writing, at least three of the high school students in attendance have been hired by the companies represented at our Expo! THIS IS WHY WE DID IT…JOBS!!! I encourage you to get involved! School administrators and counselors DO NOT know your industry like you do! The community colleges and training programs available DO NOT know your industry like you do. These students only speak with folks they know and really have no clue what’s ACTUALLY available to them OR what kinds of technology and opportunities await them. Yet, we often blame the kids for not knowing…THEY DON’T KNOW WHAT THEY DON’T KNOW!

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It’s up to US to get involved, show them how hard work can be rewarding. Show them what they CAN do! Make your certification programs internally attractive to student interns and young employees that may not stay with you forever. Teach them how to build a legacy that they can put their hands on and will last! Let’s BRIDGE THE GAP and capture their imaginations! You might be surprised to find your own creative spark ignited!

The Contractor’s Compass is recognizing excellence in ASA’s ranks. Every month we are highlighting the activities, achievements, and actions of ASA members that might inspire others. Do you have something you want to share? Send us an email at communications@asa-hq.com.

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L E G A L LY S P E A K I N G Be Prepared: OSHA Defense Begins BEFORE The Citation by Joseph M. Kanfer, Esq., Woolford Kanfer Law, P.C.

The Employee Misconduct Defense

Even the most safety-minded contractors may find themselves on the wrong end of an OSHA citation, which can be damaging to the business if the contractor is not prepared. However, with good safety policies and documentation practices, contractors can give themselves a fighting chance to minimize the cost and impact on their businesses when an OSHA citation comes and improve safety at the same time.

The OSHA Citation Process An employer has 15 working days after receiving an OSHA citation to request a formal hearing before the Occupational Safety and Health Review Commission (OSHRC). OSHRC proceedings can be time-consuming and expensive, which can make challenging minor violations impractical. However, an employer also has the opportunity during the 15-working day period to request an informal conference with an OSHA official. An informal conference is a negotiation session where an employer can discuss the citations with OSHA in

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the hope of reducing the severity level of the citation, decreasing the amount of the fine, or even deleting some of the violations entirely. The informal conference can be a valuable opportunity to quickly and inexpensively resolve OSHA citations without having to go through the formal hearing process. However, an employer must be prepared to present OSHA with a compelling reason to adjust the citation supported by written documentation. If an employer can show OSHA that it may have legitimate defenses to a citation, it can often reach a settlement agreement with OSHA to modify the citation in its favor in exchange for so-called “enhanced abatement,” or implementing additional safety measures. Below, I will discuss two of the most common and important defenses - the employee misconduct defense and the lack of knowledge defense - and what you can do ahead of time to maximize your chances of success at an informal conference in the event of a citation.

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Contractors spend a great deal of time creating safety programs and rules to protect their employees and comply with OSHA regulations. However, even the most safety-minded employers have employees who sometimes just do not follow the rules. OSHA’s regulations recognize this by providing for the employee misconduct defense. The rationale for the employee misconduct defense is that a diligent employer who establishes, communicates, monitors, and enforces appropriate safety rules in compliance with OSHA regulations should not be penalized if his employees fail to follow those rules. The employee misconduct defense is one of the most common and important defenses an employer has against an OSHA citation, but it requires diligent recordkeeping and enforcement of safety policies to be effective. The employee misconduct defense is an affirmative defense, which means that the employer must prove that it meets all the requirements of the defense to take advantage of it. To prevail on the employee misconduct defense, an employer must establish four things: (1) the employer established a work rule to prevent the violation; (2) the rule was adequately communicated to employees; (3) the employer took reasonable steps to discover violations of the rule; and (4) the employer effectively enforced its safety rules. The key to this defense is that it is not enough to simply have a written safety policy and show that the employee violated it – that is only the first element of the defense. Many employers believe that if they show up to an informal OSHA conference and explain that their

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employee did not follow established policy that they will be off the hook. This will not work. OSHA requires more from employers. In addition to having a written safety policy that the employee violated, an employer must demonstrate that the policy was adequately communicated to employees. After all, a great safety policy is meaningless if employees do not know about it. The ideal way to show that a policy was communicated to employees is to conduct training sessions on the policy and have a record of the employee’s attendance, such as a certificate of completion or a sign in sheet. Having both a written policy and documentation of how it was communicated to the employee, including copies of all written training materials, are critically important. It will be difficult to convince OSHA that you complied with these requirements without written documentation. Once the employer has a written policy in place and communicates it to employees, the employer must take reasonable steps to discover violations. This can take many forms. At a minimum, site superintendents and foremen should be trained in safety procedures and be required to monitor, document, and correct violations. An employer should also have a safety or project manager visit job sites periodically to conduct safety audits to make sure that employees are following safety rules. Outside safety consultants can also be hired to conduct mock OSHA inspections or audits. Whatever method an employer uses, it must be conducted on a regular basis and well documented. A contractor must be prepared to provide documents to OSHA showing how safety efforts were being monitored, such as checklists showing that supervisors or managers verified that safety policies were being followed or reports from site visits or audits. Finally, an employer must establish and follow policies to discipline employees for safety violations. Employers with established and well-communicated safety policies often fail to consistently enforce them for fear of alienating employees. However, a disciplinary

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policy for safety violations does not need to be harsh or draconian. Rather, employers should establish clear progressive discipline policies where isolated safety violations result in verbal or written warnings, but employees who repeatedly violate safety rules are subject to more serious penalties such as suspensions from work without pay or, in severe cases, even termination. Such policies are not popular among employees, but they protect both the employee as well as the employer from the consequences of safety violations. And again, it is critical that all disciplinary actions – even verbal warnings – be documented so they can be shown to OSHA as evidence that you enforce your disciplinary policies. Establishing, communicating, monitoring, and enforcing safety policies is one of the best ways to ensure that you, the employer, are equipped to negotiate the best possible outcome of an OSHA citation and, if necessary, to defend yourself at an OSHRC hearing.

The Lack of Knowledge Defense The lack of knowledge defense is not really a defense at all. Rather, for every violation, OSHA must prove that the employer knew or should have known of the violation. For example, imagine that an OSHA inspector witnesses an employee working in a trench without an adequate protective system such as a trench box or benching. If the employee was in the trench for just a moment and could not have reasonably been observed by a supervisor, OSHA may not be able to prove that the employer had knowledge of the violation. If, however, a site superintendent or foreman witnessed the employee working in the trench unprotected – or, worse yet, instructed the employee to enter the trench without protection – then the employer will be deemed to have knowledge of the violation. Different rules apply when the supervisor committed the violation. Even if the employer does not have actual knowledge, it may still be treated as having knowledge of the violation if it could have known of the violation through the exercise of due diligence. If

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a violation is in plain view and obvious, the duration of the violation was not brief, and the employer failed to regularly inspect the job site for violations or failed to properly train employees, then the employer may be deemed to have knowledge of the violation. For example, consider an employee who fails to wear PPE for a brief moment and is observed by an OSHA inspector. If the employer has policies and documentation to show that the employee was trained in the use of personal protective equipment (PPE) and the site superintendent or foreman regularly checks for PPE compliance but nonetheless did not observe the employee failing to wear his PPE, then the employer may be able to successfully argue that it did not have knowledge of the violation. However, if an employee is walking around the job site for an extended period of time without wearing required PPE and the employer cannot show that his onsite supervisors were regularly checking for PPE compliance, then the employer will likely be deemed to have knowledge of the violation. Having good policies and documenting compliance with them can make the difference here.

Conclusion Defending against an OSHA violation can be a complex matter, and you should always consider discussing any citation you receive with your lawyer to determine how to respond and what the consequences of the citation may be. However, preparing in advance for OSHA violations by establishing, communicating, monitoring, and enforcing safety policies can help give you and your lawyer ammunition to negotiate or defend against OSHA citations that you may receive – and may help prevent employees from violating the rules to begin with.

About the Author Joseph Kanfer, Esq., Woolford Kanfer Law, P.C., is an attorney in Lancaster, Pa., who represents subcontractors and other construction professionals. He can be reached at (717) 290-1190 or jkanfer@ woolfordlaw.com.

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F E AT U R E Managing an OSHA Inspection…Are You Prepared? by Johnny Zitko, AssuredPartners; and Roger Paveza, Vista Safety Consulting

If there’s one thing I can promise… as every workplace is unique, every OSHA inspection is unique – as is every inspector. So, let’s outline the structure of the inspection, the employer’s rights, and what you can do to prepare.

Employer Preparation Plan in advance! The best time to think about and plan for an inspection is before one happens. Just like other ‘emergencies’, have a set protocol,

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including, but not limited to: • Designate a safety director or other manager to act as the company’s representative during an OSHA inspection. • Contact your advocates such as your Safety Consultant or your Insurance Broker. • Consider having a backup for the company representative(s) to fill in for the primary representative during a vacation or other absence.

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• Develop a call list and inform front desk personnel/receptionists and key personnel. • Politely ask OSHA to wait until your company representatives and/or outside advocates can be present (OSHA will typically wait 30-60 minutes). The best preparation for an OSHA inspection is having a robust safety and health management program in place. A mock OSHA inspection and regular

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safety audits can uncover unrecognized hazards.

Why Is OSHA Here? OSHA is on-site for a specific reason. There is a a hierarchy of priorities OSHA uses to allocate its inspection and enforcement resources: • Imminent danger situations – hazards that could cause death or serious physical harm receive top priority. Compliance officers will ask employers to correct these hazards immediately or remove endangered employees. • Severe injuries and illnesses – employers must report: • All work-related fatalities within 8 hours. • All work-related inpatient hospitalizations, amputations, or losses of an eye within 24 hours.

• “Reasonable inspection” at “reasonable times”

• Worker Complaints – allegations of hazards or violations also receive a high priority. Employees may request anonymity when they file complaints. • Referrals of hazards from other federal, state or local agencies, individuals, organizations or the media receive consideration for inspection.

• An opening conference • Protect trade secret and confidential business information

The company representative(s) should accompany the CO during the workplace walkaround. A labor union representative may also participate in the walkaround if the employees are part of a collective bargaining agreement. Some notes regarding the Inspection/ Walkaround: • DO take the same photographs or video that the CO does. • DO NOT admit that something is a violation. • DO take detailed notes. • DO NOT give CO documents that were not requested. • DO only state the known facts.

• Negotiate to narrow the scope and set the tone of the inspection;

Closing Conference

• Contest alleged violations

Opening Conference An on-site investigation begins with an opening conference. In my opinion, this is the most important stage of the inspection because it is the time when employers can:

Before an inspection even begins, employers have a right under the Fourth Amendment to the U.S. Constitution to

Inspection/Walkaround

• Meet the Compliance Officer (CO) – presented with proper credentials: an agency photo identification – there is no badge.

• Accompany the Compliance Officer during the walkaround

Your Rights as an Employer

OSHA about how the inspection may proceed, from the collection of documents (through written requests only), to interviews (scheduled in advance), and physical access to the facility (only with a management escort).

• DO NOT become angry or argue with the CO. If any documents are requested, don’t feel rushed or bullied. Ask for a formal “Document Request” to ensure everyone is on the same page. Then, you’ll have a reasonable amount of time to provide the requested materials. Consider if materials may be privileged or protected work product. Don’t volunteer self-audits, insurance and consultant reports, or other similar materials without talking to counsel. Also note that any safety and health violations in “plain view” of the CO during the walkaround may lead the inspector to insist on expanding the scope of the inspection. So, it’s best to plan your “route of travel” during the Opening Conference stage.

• A closing conference

• Follow-up inspections – checks for abatement of violations cited during previous inspections are also conducted by the agency in certain circumstances. Programmed inspections include those for Local, National, Regional, and Special Emphasis Programs to address compliance in hazardous industries or specific workplace hazards.

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• Participate in management interviews

• A copy of formal employee complaints

• Targeted inspections – inspections aimed at specific high-hazard industries or individual workplaces that have experienced high rates of injuries and illnesses also receive priority.

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be free in their workplaces, just as they are in their homes, from unreasonable searches and seizures, which includes inspections by OSHA. What that means is, OSHA may not inspect a workplace unless the Agency has administrative probable cause (a lower burden than criminal probable cause) to believe that a violative condition exists within. Accordingly, employers have a right to demand an inspection warrant that establishes OSHA’s probable cause to inspect. We rarely (if ever) advise clients to demand an inspection warrant; rather we try to negotiate with the Agency over a reasonable scope of the inspection, and with such an agreement, waive the warrant right and consent to the inspection. Aside from your right to request a warrant, other employer rights include:

• Understand (ask questions about) the purpose of and probable cause justifying the inspection; and • Try to establish ground rules with

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At the conclusion of an inspection, the CO will conduct a Closing Conference – either in-person or via telephone. During the Closing Conference, the inspector will:

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• Discuss any apparent violations and any pertinent information discovered during the inspection; • Cover the strengths and weaknesses of the employer’s safety and health program; and • Advise all representatives of their rights to participate in subsequent conferences, meetings, or contest proceedings. This is your ‘last stand’ before a potential citation is issued, so you’ll want to:

1. Listen carefully to OSHA’s findings. OSHA citations are sometimes based on misunderstandings as to what was or was not provided to OSHA. The closing conference provides the opportunity to avoid citations based upon such misunderstandings. 2. Depending upon the circumstances, it may be worthwhile to inquire as to specific information supporting an alleged violation. The employer can then use this information to formulate a strategy for responding to the anticipated citation. 3. Ask about hazards that need to be abated. Prompt abatement of hazards has advantages such as ‘good faith’ and possibly a lower penalty.

Citations When an inspector finds violations of OSHA standards or serious hazards, OSHA may issue citations and fines. OSHA must issue a citation and proposed penalty within 6 months of the violation’s occurrence. Citations describe: • OSHA requirements allegedly violated, • list any proposed penalties, and • give a deadline for correcting the alleged hazards. As violations are categorized (by type), varying penalties can be attached. Below are the maximum penalty amounts, with the annual adjustment for inflation, that may be assessed effective

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January 15, 2022. (See OSHA Memo, Jan 14, 2022). Type of Violation

Penalty

Serious Other-Than-Serious Posting Requirements

$14,502 per violation

Willful or Repeated

$145,027 per violation

Failure to Abate

$14,502 per day beyond the abatement date

Post Citation (Informal Conference / Contest) The post citation process really consists of two options: 1. Contest the citation(s) – formally disagreeing with what was issued. An employer has 15 working days (from the receipt of the citation) to contest OSHA citations by filing a case with the review commission. 2. Request an Informal Conference – informally settling the case (typically what we recommend). The informal conference must be held during the 15-day contest period but does not stay the contest deadline. During an informal conference, OSHA personnel will review: • The purpose of the conference, • Rights of all participants, • Contest rights and time constraints, • The abatement/correction of the citations, and • The potential for settlement of any of the citations and/or penalty reduction. Once terms have been reached, the OSHA representative will draft a settlement agreement. Prior to that being done, it’s recommended that the agreement include an “exculpatory statement” that provides that the employer hasn’t admitted to a violation of any OSHA standard. Essentially, it’s a “we agree to disagree”, and in a courtroom, a settlement agreement without an exculpatory clause could be used as evidence to reinforce your negligence. Frequently, such settlement

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agreements contain the following information: "By entering into this agreement, the employer does not admit that it violated the cited standards for any litigation or purpose other than a subsequent proceeding under the Occupational Safety and Health Act and that this agreement is not intended to be admissible or deemed an admission in any other proceeding other than a subsequent proceeding under the Act. " Bottom line, an OSHA Investigation may feel like you’re being sent to the principal’s office, but it does not have to be a bad experience. Be Prepared and contact your Insurance Broker or Safety Consultant to help you through this process. As the old adage goes, “By failing to prepare you are preparing to fail.” For questions and/or more information about this safety brief, contact: • AssuredPartners, Inc. at 630866-2519 or john.zitko@ assuredpartners.com • Vista Safety Consulting at 847-9517544 or info@vistasafetyconsulting. com, www.vistasafetyconsulting. com

About the Authors Johnny Zitko is a Vice President of Risk Services at AssuredPartners. He has more than 20 years of insurance experience in claims, loss control and client service leadership. He uses his risk management knowledge to deliver strategies and solutions that help lower the total cost of risk for his clients. He holds a Bachelor of Science in Business from Illinois State University. Roger M. Paveza, CRIS is President of Vista Safety Consulting and frequently partners with the AssuredPartners team to provide professional and technical advice to the construction industry sector. He utilizes his knowledge in all aspects of health and safety and risk management to deliver innovative solutions and cost-effective measures for managing clients’ risk. Questions can be sent to asa@assuredpartners.com

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L E G A L LY S P E A K I N G How Should a Subcontractor Best Defend Against an OSHA Citation? Don’t Have a Citation To Defend by Michael Metz-Topodas, Cohen Seglias Legendary hockey player Gordie Howe once said, “The best way to get in shape is to never get out of shape!” In theory, he could have been talking about an OSHA citation defense. In other words, the best way to defend against OSHA citations is to never receive an OSHA citation. Easier said than done, of course. Keeping OSHA’s enforcement powers at bay depends on creating a comprehensive and focused safety program. Such a program should take specific, precise, and deliberate measures to lay a foundation of support to assert the many available defenses against an OSHA citation.

The Citation Process and Common Defenses Almost all citations originate in a workplace inspection. OSHA’s construction workplace inspections typically result from complaints to OSHA or an inspector’s observation from outside a jobsite. If an inspector observes workplace conduct during an inspection that violates any one of the thousands of OSHA workplace safety regulations, the inspector usually issues a notice of violation or citation. These citations identify the specific regulation an inspector believes a contractor violated, describe briefly the hazardous workplace conduct or condition that did not comply with that regulation, classify the violation (e.g., “willful” or “serious”), and list the fine assessed and the required measures for abating the identified hazard. Once a contractor physically receives a citation, it has 15 working days to respond, either by paying the fine and beginning abatement; informally

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negotiating a settlement for a reduced fine, alternative classification, and adjusted abatement; or contesting the citation with the Occupational Safety and Health Review Commission (OSHRC), an administrative law court that hears citation disputes and related matters. In such contests, OSHA bears the burden to show it had proper grounds to issue the citation, so it must present evidence that: (1) the regulation underlying the citation governs the cited contractor’s conduct; (2) the contractor’s conduct violated that regulation and created the workplace hazard the regulation is intended to prevent; (3) the contractor’s employees were or could have been exposed to that workplace hazard; and (4) the contractor knew or should have known with reasonable awareness that its workers were or could have been exposed to a hazard. In defending against a citation, employers, including contractors, commonly present evidence that no employees were exposed to the alleged hazard or that the employer did not and could not have known about the alleged violation or risk to workers. In addition to showing that OSHA cannot make its case, employers can assert certain “affirmative” defenses for which the employer, not OSHA, has the burden of proof. An employer can show that employee exposure to a hazard resulted from an employee disregarding the employer’s safety policies and training despite the employer’s best efforts to implement such policies and training. Unfortunately, OSHRC courts infrequently accept this unpreventable employee misconduct defense.

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Employers also can show that for the conduct OSHA claims violated workplace safety regulations, complying with the regulation would create a greater hazard than noncompliance or make it unfeasible for the business to achieve its business purposes. In other words, the employer had no safer way to perform the activity while still accomplishing its work. Presenting such a defense often runs up against OSHA’s voluminous research and data underlying the regulations’ precise and technical requirements.

How Contractors’ Safety Programs Should Support OSHA Citation Defenses Given the requirements and obstacles in asserting these defenses, successfully using them depends on having a safety program oriented towards preserving necessary evidence. Written safety policies, comprehensive training, regular safety monitoring, and strict enforcement can contribute to a successful citation defense. • Written Policies: Contractors should have written policies and practices that align as closely as possible with applicable regulations. For example, a masonry subcontractor should have policies that mirror OSHA’s silica regulations (e.g., Table 1, 29 C.F.R. 1926.1153(c) (1) (listing “engineering controls, work practices, and respiratory protection” for various activities that could generate respirable crystalline silica)). In addition to overall policies, contractors should

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perform and record job hazard analyses (JHAs) for each worksite and every part of project work that poses safety risks. Drawing on these JHAs, contractors should also prepare job-specific safety plans as required or if not already covered in the JHA. Contractors can rely on all of these written policies to counter an OSHA claim that the contractor’s workplace did not comply with applicable regulations. Further, such policies support feasibility and greater hazard defenses because they prove the contractor considered all applicable safety requirements and alternatives in determining project operations. • Trade Specific Training: Written policies mean little without instruction and guidance on recognizing hazards and performing tasks that comply with those policies. Training takes several forms —formal certified classes from outside instructors, internal training seminars, toolbox talks, and day-today direction from managers and supervisors. Because most OSHA citation investigations probe relevant worker training early in the process, robust training programs can blunt or restrain such investigations. • Safety Monitoring: No amount of written policies and training can ensure workers actually comply with such safety requirements. So, contractors must observe workers’ onsite performance to ensure proper safety procedures are followed. Monitoring includes regular project supervisor or manager jobsite observations and surprise safety manager inspections. Third-party audits provide further feedback on how well a contractor’s policies address relevant safety risks and how effectively workers follow such policies. Robust monitoring programs support the argument that OSHA cannot show the required employer knowledge. Where such an argument succeeds, the citation must fail.

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• Enforcement: Vigilant monitoring invariably leads to observing workers violating safety rules. A strong safety program has policies that outline consequences for such violations, usually progressively more significant disciplinary measures. Such policies’ effectiveness depends on the people enforcing them, so contractors must apply this progressive discipline evenly to all violations and all workers, regardless of level or competence. With such disciplinary programs, contractors preserve a vital element of the unpreventable employee misconduct defense and develop support for other defenses.

Three Key Rules for a Successful Safety Program: Document, Document, Document On the question of existence, OSHA has found a simple answer: “If it’s not written down, it does not exist.” So none of the above safety program features can support a citation defense if written records are lacking. All safety policies and required practices must be in writing, whether in a company safety manual or other written safety plans and policies. All training events— from formal classes to toolbox talks to impromptu safety discussions—should be recorded using written program content materials and sign-in sheets. Daily logs or reports should record any day-to-day project safety monitoring, including manager observations, safety manager inspections, and outside audits. Finally, any disciplinary proceedings should have written records.

promote overall project safety. Written policies clarify safety expectations and practices for workers. JHAs and project-specific safety plans force managers and supervisors to give individualized considerations to targeted safety measures. Frequent training helps ensure safety concerns remain prominent in all team members’ minds as they perform daily work. Regular worksite observations help stop hazardous conduct before it can lead to injury or worse. Strictly enforced progressive discipline promotes compliance with safety requirements. In other words, not only does a proper safety program develop the evidence needed to assert certain citation defenses, but it also reduces the risk of worker injury and promotes overall workplace safety. Such a workplace minimizes safety regulations violations and thus citations. A proper safety program does not get contractor safety into good shape; instead the program ensures contractor safety never gets out of shape.

About the Author Michael Metz-Topodas is a partner at Cohen Seglias. As a construction litigator, he represents general contractors, subcontractors, owners, designers, and suppliers through all stages of private, public, and federal projects. Michael helps clients navigate construction project disputes, including delay and inefficiency claims, design and construction defects, unforeseen site conditions, project scope disputes, and payment claims. He also defends clients against OSHA citations and advises on OSHA compliance issues. He can be reached at mmt@cohenseglias. com and 267.238.4755.

How Safety Programs’ Support of Citation Defenses Prevents Citations Not only do these described measures form essential components of certain citation defenses (as explained in italics), but they also

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F E AT U R E How to Manage an OSHA. Inspection— Before, During, and After By Robert Tuman, CCR Safety Consulting

Note: OSHA citations are available to the public without login and password, and easily accessed by going to the OSHA.gov website and entering “Establishment Search” in the search box on the upper right hand side.

Preparing tor an OSHA Inspection 1. Have your safety documentation readily available and keep copies centrally located in 3-ring binders in your trailer or Forepersons’ vehicles. For example, and note that this is not an all-inclusive list, include your Injury and Illness Prevention Program (with signed employee acknowledgement that they have read, understand, and will comply T H E

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with, for example, your Code of Safe Practices), list of required Personal Protective Equipment- again with employees’ acknowledgements that they have read and will comply, Hazard Communication (Globally Harmonized System) program, Safety Data Sheets (“SDS”), annual OSHA Summary of Injuries and Illnesses, signed and dated safety meetings and exposure-specific Qualified Person and Competent Person safety training records and other proof of exposure-specific safety training- i.e. OSHA 10 or 30 Hour Construction Safety training. Further, include Job Safety/Job Hazard Analyses, Site-Specific Safety Plans, Pre-Task Safety Plans, and

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safety inspections, citing corrective actions you took to protect employees and, if you subcontract work, your subcontractors’ safety documents. Additionally, file copies of current employees’ and subcontractors’ employees’ completion of training certifications and licenses- i.e. aerial lift, forklift/rough terrain forklift/ reach lift, powder-actuated nail gun, hydraulics engineers’ licenses or proof of equipment training. 2. Post your OSHA Log (summary of your prior year’s work-related injuries and illnesses) from February 1st through April 30th. Don’t have anywhere to post this document except in your office or break room? Provide Foremen with copies to keep J U N E

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in their vehicles and in your jobsite trailer if you have one. Post your Personal Protective Equipment zero tolerance policy, with enforcement language, on every jobsite. This should state that you require, for example, hardhats, safety glasses, high visibility vests, work boots, pants and shirts, and risk-andexposure-specific Personal Protective Equipment- i.e. face and nose coverings, respirators, hearing protection, and document the disciplinary action you’ve taken against employees who you observed violating your PPE policy. Have signed and dated tool and equipment self-inspections readily available, and include corrective actions, if any. A tip: ask employees and subcontractors’ employees to bring extension cords and tools to weekly safety meetings for documented inspection, and take damaged or inoperable tools, equipment, and cords out of service. Hold employees and subcontractors accountable for weekly equipment tests and inspections. For example, hold electrical subcontractors responsible for inspecting and testing ground fault circuit interrupters (“GFCI”) weekly and for submitting these signed and dated inspections and corrective actions. Hold your and subcontractors’ personnel responsible for daily cleanup of their work areas and continual organization and reorganization of materials and equipment to minimize slips, trips and falls. Designate an experienced, trained, and personable manager as the company go-to person for OSHA inspections. Have and maintain a digital camera on each jobsite and take photos or videos of actions you have taken to protect workers. Keep it in a sealed bag, keep it charged, and if necessary add additional memory.

During the Inspection 9. Introduce yourself and be friendly and courteous. Ask your designated

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OSHA ombudsman to join you. Ask the OSHA Compliance Officer (“CO”) for identification and a business card. If there was an accident or apparent reason (i.e. a roofer falls 28’ and is taken by ambulance to the hospital) for an OSHA inspection, ask the Compliance Officer to detail the reason for the inspection. The Compliance Officer should conduct an “opening conference”, during which the Compliance Officer details why OSHA is inspecting your jobsite. Was there an anonymous complaint (ask for a copy of the complaint), did she or he observe a fall hazard or other safety violation while driving by the jobsite, or is the inspection part of a Local, Regional, and/or National Emphasis Program allowing warrantless inspections? OSHA cannot and will not provide the name of the party making the complaint or other identifying information. You may know or sense that you know the person(s)’ identity, but don’t go fishing- it could backfire on you in the form of an allegation of retaliation. 10. Provide information and documentation only when asked. Sometimes you can compound matters by providing potentially incriminating information and documentation. For example, if you wish or are asked to provide a copy of an unsatisfactory self-inspection, make sure you provide the completed corrective action plan. 11. Accompany the Compliance Officer during her or his inspection and take pictures and/or video of what she or he takes pictures of and note what she or he is observing. 12. Be nice but don’t fall all over the inspector. Don’t BS the inspector, as they have a good nose for BS and many have worked in the trades. 13. Make employees available to the Compliance Officer if she or he asks to interview them in private. OSHA has the right to talk to employees without their managers present. Employees can have a union or employee representative present during these interviews. Arrange for space where they can talk in private. After the interview, employees might

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want to discuss what they told the Compliance Officer, but don’t probe. Wait for them to come to you. 14. Ask the Compliance Officer for a face-to-face “closing conference”a summary of her or his findings. OSHA may prefer to conduct a closing conference by phone- which is perfectly acceptable, but request a face-to-face closing conference so that you can assure and show the CO that you took definitive corrective actions right after the inspection, and that you have sustained your efforts to keep employees safe. This goes a long way to show an Informal Conference hearing officer that you are serious about minimizing injury and illness risks and exposures. 15. Employers’ knee jerk reflex during closing conferences is to ask if they will be fined and the amount of the fine. Don’t even bother, as the CO cannot and will not tell you the amount of the fine.

After the Closing Conference 16. Review the findings with affected employees and subcontractors. OSHA likes to see that you took corrective action immediately after the inspection, so don’t wait until you get the citation. For example, if the CO observed employees working without fall protection, implement and document fall protection training and a mandatory fall protection program. If you have a long-standing fall protection program which was violated, discipline the violators, including Foremen, and document that have done so- to prove to OSHA that you took timely corrective action. OSHA wants to see a history of disciplinary actions- not just the disciplinary action taken against recent violators. 17. Correct safety deficiencies, if any, as soon as possible, document your corrective actions, and provide OSHA with copies. If you need additional time to correct deficiencies (i.e. scheduling and completing OSHA 10-Hour training, conducting fall protection training, aerial lift and other

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trainings), provide the Compliance Officer with your timetable and keep her or him informed of your progress toward completion of training. 18. Update the Compliance Officer as you complete each action item or have completed a group of action items. Don’t wait until all corrective actions have been taken.

The Informal Conference

When You Get the Citation 19. ALWAYS schedule an Informal Conference, as you want to have the opportunity to present your case in an informal, free-flowing session with an OSHA manager- often an Assistant Area Director. You have 15 workdays from the date you receive the citation to participate in an Informal Conference. For example, if you receive the citation the afternoon of December 24th, you have until January 16th to complete the Informal Conference. You definitely want to go to an Informal Conference well before the “contest date”, the deadline for contesting one or more citations. You want to give yourself enough time before the “contest date” to make a deliberate and informed decision whether to contest or pay the fine. 20. Provide copies of the citation(s) to your in house OSHA liaison and to affected employees and subcontractors. Meet to determine the accuracy of the citations. 21. Fact find with employees or subcontractors’ employees who claim they “didn’t do it.” An employee who vehemently claimed he was not exposed to a fall hazard unexpectedly and embarrassingly “fessed up” during the Informal Conference when the hearing officer produced a photo of him without fall protection. The owner was embarrassed and felt forced to pay the full amount of the fine. 22. Compliance Officers sometimes make unintentional mistakes. I was able to get multiple citations transferred from a roofing client to its subcontractor, as my client had an “arm’s length” relationship with its roofing subcontractor. The subcontractor didn’t endear himself to OSHA when the foreman, asked nicely to come

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down from the roof to talk with the Compliance Officer, refused to come down and bring his crew off the roof. To make matters worse, he threw a bundle of shingles at the Compliance Officer. The State of Maine OSHA Regional Director told me that he almost called the FBI to arrest the foreman.

23. NEVER, EVER MAKE EXCUSES, PLAY THE BLAME GAME, OR COMPLAIN THAT THE CITATIONS WILL PUT YOU OUT OF BUSINESS. If one or more of the citations are factually incorrect, bring convincing evidence supporting your request to rescind them. However, if you were clearly in violation, try to reduce the fine and change the citation’s category (i.e. from “Serious” to “Other” than serious). 24. When a client has been guilty of the cited violations, I asked for whatever consideration the hearing officer could give. The extent of this “consideration” will be based on a number of factors, including but not limited to your OSHA history, the magnitude of the violation, and what you are now doing and will continue to do to keep your employees safe, and timely corrective actions you took between the inspection and Informal Conference. Accordingly, if you were cited for lack of a specific safety training (i.e. fall protection training), bring copies of fall protection training records and other safety training rosters with participants’ printed names and signatures. 25. If an employee or subcontractor’s employee repeatedly violated an OSHA standard or generally-accepted safe work practice, bring a copy of current and prior disciplinary memoranda evidencing your longstanding safety disciplinary program. 26. At the end of the Informal Conference the hearing officer will detail terms of a settlement agreement. If you perceive these to be fair, sign the agreement and arrange to pay the fine or opt for a payment plan. 27. If however you have convincing evidence that one or more citations

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are factually inaccurate, submit a “contest letter” with a request to schedule an administrative hearing. The OSHA hearing officer will generally help you with the wording.

If and When OSHA Returns (or Doesn’t Return) 28. OSHA may or may not return to your jobsites. Hopefully you will be higher on the learning curve after the first inspection. However, it might not be a bad idea to either enroll in OSHA’s voluntary consultation and inspection program, an industrysanctioned inspection program and have your safety officer perform regular unannounced “mock OSHA” inspections, with a “how did we do?” discussion after the inspection, asking participants to comment and recommend corrective actions. Given that construction can be inherently high risk, there exists a high probability that OSHA will visit a jobsite at some point after the Informal Conference. The bigger the project, the greater the probability of an OSHA inspection. You can look at an inspection as an annoyance, as disruptive, and as counterproductive, or you can look at inspections as a learning experience and an integral part of your efforts to keep employees and subcontractors’ employees safe. I subscribe to the latter, as I know that my clients emerged from OSHA inspections at times a bit poorer, but certainly better informed and more enlightened. I want to thank all the OSHA Compliance Officers I have had the opportunity to get to know. I have found them fair, generally even-handed, and passionate about protecting workers.

About the Author: Bob Tuman is president of CCR Safety Consulting in California, providing safety consultation to construction contractors and performing Workers’ Compensation and General Liability Loss Control Surveys for property and casualty insurers. For further information or to contact CCR directly, please contact: 805545-5976 or email bobtuman@gmail. com

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F E AT U R E Psychological Safety Is Key for Enabling Diversity in the Workplace by Dale Carnegie Staff

• Diverse teams can achieve greatness, but they need to exist in an inclusive environment that promotes psychological safety • Psychological safety rests on the assurance that a team member will not be ridiculed or punished for making a mistake or speaking up with an idea • The Dale Carnegie principles promote the cultural competencies necessary to cultivate psychological safety within diverse teams. When was the last time someone told you “there are no stupid questions”? Did you believe them? Maybe you’ve said this as a manager, hoping to encourage discussion and help with clarity among your team. But in workplaces where inclusion and diversity are lacking, these attempts to open the lines of

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communication are met with silence. Diversity in business has many benefits, but it is not as simple as assembling a group of diverse people. The pathway to diversity is found in the act of inclusion. Dale Carnegie’s steps to an inclusive environment include growing self-confidence, taking a genuine interest in others, becoming aware of cultural differences, and developing the cultural competencies necessary to sustain these changes. Studies have shown that diverse teams perform better, are more innovative, and experience better general health and happiness than non-diverse teams. To create a diverse team that can provide these results, each team member must feel psychologically safe. Developing an environment that fosters inclusion requires this key element.

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What Is Psychological Safety? Although the concept of psychological safety has been researched since the 1960s, the term was coined decades later by organizational behavioral scientist Amy Edmondson of Harvard. Psychological Safety is “a shared belief held by members of a team that the team is safe for interpersonal risk-taking.”. Psychological safety can only be created in an environment of mutual respect and trust—the same requirements necessary for sustained diversity. Determining whether this exists within a workplace requires critical and honest analysis and reflection. Ask yourself, do team members ask questions or offer suggestions within meetings or group settings? Do team members quickly admit to mistakes and reach out for help

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when needed? Just as there are hurdles to reaching diversity through inclusion, there are hurdles to overcome when creating a climate where psychological safety can exist. The benefits, however, are well worth the effort.

Benefits of Psychological Safety In Aristotle’s Metaphysics, he writes, “many things have a plurality of parts and are not merely a complete aggregate but instead some kind of a whole beyond its parts.” Diverse teams can be so much more than the sum of each individual, but only if that team exists in a psychologically safe space. This was the belief that fueled Google’s Project Aristotle, which determined that psychological safety is the single most important factor leading to team success and, in fact, serves as the foundation for the next four components of an effective team. But Google wasn’t the first one to draw this conclusion. Among many others, William Kahn connected the importance of being able to share your authentic self with others to a person’s level of personal engagement at work. He found that “interpersonal relationships promoted psychological safety when they were supportive and trusting.” He describes environments where workers can fail or speak up without fearing consequences. When it comes to speaking up, Gallup data reports that only three in ten US employees feel their opinions matter at work. Raise this number to six in ten and businesses could see turnover reduce by 27%, safety incidents decrease by 40%, and productivity rise by 12%. Despite these business positives, the majority of workers do not claim their workspace to be psychologically safe.

Barriers to Psychological Safety Ever since cavemen started running from saber-toothed tigers, humans have learned to protect themselves from harm. In the modern office, these tigers may take the form of negative gossip, intimidation, public embarrassment for

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mistakes, or even threats of demotion. No one wants to seem ignorant, disruptive, incapable, or pessimistic. And the easiest way to avoid appearing so is to remain silent. In many business environments, disengaging is more beneficial to an individual than speaking up. This “workplace silencing” is perpetuated by negative behaviors and closed mindsets. It doesn’t matter how a team is put together or who is on it. What matters is the way team members communicate and interact with each other. Interactions that admonish or belittle others, their culture, or their ideas work directly against a climate of psychological safety. The results of admitting ignorance or fault or of voicing a contrary opinion are perceived as an interpersonal threat, which causes team members to withdraw. Every time a team member withholds their full self, they are robbing the team of an opportunity for learning and inclusivity. But the burden cannot be placed on the worker alone. Sustained diversity in an environment of psychological safety requires the efforts of everyone: executives, managers, and employees alike. Every team member needs to learn and practice daily the skills and cultural competencies necessary to overcome these barriers.

How Dale Carnegie Cultivates Psychological Safety From not criticizing, condemning, or complaining to never telling someone “you’re wrong,” the Dale Carnegie principles work directly toward creating an environment and relationship of psychological safety. Even something as simple as knowing a team member’s name can make a huge difference in a person’s feeling of belonging. In How to Win Friends and Influence People, Dale Carnegie brings attention to a particular story in which a Texas businessman articulates that “the executive who tells me he can’t remember names is at the same time telling me he can’t remember a significant part of his business.” Each member of a diverse team is significant to the project’s success and should be treated as such.

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Effective teams work toward the same goal by bringing their collective ideas and energies together. To build or renew psychological safety within the team, Dale Carnegie says leaders should “keep emphasizing, if possible, that you are [all] striving for the same end and that your only difference is one of method and not of purpose.” When teams follow a common purpose, the details, such as whose idea is implemented, become inconsequential to the overall goal. This allows teams to come to a common agreement and successfully complete tasks. These efforts at inclusivity and diversity must be backed up by selfconfidence, an interest in others, cultural awareness, and cultural competencies. Only through these steps can a workplace create and benefit from an inclusive and psychologically safe space. This is what it means to have diversity and to harness that diversity to bring good onto a team and into the world.

About the Editor: Robert Graves, MBA, is a Dale Carnegie Certified Trainer for Dale Carnegie Tampa Bay. His focus is Relationship Selling. He is the author of “Making More Money with Technology.” He often speaks on the evolution of Marketing, Sales, and Service. Robert can be reached at robert. graves@dalecarnegie.com or call/text 813-966-3058. About Dale Carnegie: Dale Carnegie is a global training and development organization specializing in leadership, communication, human relations, and sales training solutions. More than 9 million people around the world have graduated from Dale Carnegie training since it was founded in 1912. Dale Carnegie Training can help an organization build effective interpersonal skills that generate the positive emotions essential to a productive work environment and that lead to increased employee engagement.

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F E AT U R E Nine Strategies for a Safer Construction Business by Duane Craig, Writer

There is plenty of talk about safety in construction. While many safety efforts aim to reduce costs, people are also discussing the greater benefit of reducing pain and suffering. The industry is incentivizing builders to improve safety outcomes. Fewer threats to worker safety and health mean fewer regulations. At the business level, your project safety record is increasingly an indicator of your business’s viability. Try these nine strategies to improve your safety outcomes.

Strategy 1: Get an On-Site Safety Consultation The Occupational Safety and Health Administration (OSHA) now offers

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safety consultations to help you find your safety risks. These are free and confidential, meaning no reports, citations, or penalties. Consultations also help you improve any existing safety and health program and can let you qualify for a oneyear exemption from routine OSHA inspections. Because of the pandemic, some areas use videoconferencing for consultations. Here’s how to find the consultation office nearest you.

Strategy 2: Set Up and Use a Safety Program Besides reducing human suffering and deaths, the rewards of a safety program include lowering the direct and indirect costs of injuries. Direct

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costs include medical treatment, worker absences, disability settlements, costs to manage the cases, and increases in your workers’ compensation experience modifier. Indirect costs include the time to process claims, the costs of substitute workers, productivity losses, overtime, investigation time, documentation costs, rework, and hits to your company’s reputation.

Strategy 3: Adjust your Safety Program to Match the Risks Faced by Each Employee Population Each demographic faces different risks. Between 1992 and 2017, the number of working people 55 and older doubled, according to the recent

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U.S. Bureau of Labor Statistics. But in 2017, older workers were 56% more likely to die from job-related causes than in 1992. If you are a self-employed contractor 55 or older, you are 2.3 times more likely to die from work-related causes when compared to the group of workers 54 and younger. If you are a construction manager 55 or older, your group is 1.5 times more likely to die from occupational injuries than younger managers. In 2018, the Pew Research Center reported that approximately one in four construction workers fit the immigrant category. That’s a significant risk percentage, and language barriers further amplify it. Try showing—instead of just talking—about safety. You can also improve outcomes by confirming people understand safety requirements.

Across all industries, overexertion and bodily reaction are the leading causes of injury and illness resulting in missed work. Besides pain and suffering, injuries contribute to the nation’s problem of prescription pain medication dependence and overdose. Businesses can make a difference in this national health issue by addressing the problems behind MSDs. MSDs come from repetitive motion, working overhead, bending over while lifting, and working in awkward positions for extended periods. People most frequently injure their backs, followed by the hands. Shoulder injuries and knee injuries come in third and fourth. Although injuries from overexertion and bodily reaction have declined over the years, they still remain the most common nonfatal injury type.

Strategy 4: Adjust Your Safety Program to Account for the Unique Risks of Your Specialty

Strategy 6: Increase Safety Emphasis With Temporary Workers

Incidence rates show the number of injuries and illnesses per 100 full-time workers. For instance, construction overall has an incident rate of 2.8. The rate varies considerably between different construction specialties, with framing contractors recording a rate of 4.5 while finish carpentry is 2.2. You can even get into the details about the sources of injuries and the events leading to the injuries, illnesses, or fatalities. Knowing the risks, and level of risks your workers face, helps you focus on the factors contributing to those risks as you customize your safety program.

Strategy 5: Work on Reducing Musculoskeletal Disorders Start looking at your work practices to reduce musculoskeletal disorders (MSDs). While caused mainly by overexertion and bodily reaction to forces, you can use ergonomic assessment tools to discover the activities most dangerous to your workers.

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Construction, like many other industries, is relying more and more on temporary workers. Whether the workers come from a staffing agency, state or local program, or as a direct hire for a short-term project, it’s best to assume they won’t be familiar with the hazards and how to avoid them. Work closely with the staffing agency so contract workers get the safety training applicable to the job they’ll be doing. Training temporary workers in every safety aspect might require assigning someone to stick with them throughout a few days to guide them in the proper safety protocols and teach them about the hazards. When temporary workers aren’t fluent in the dominant language of the job, they need safety training best conducted in their native language.

Strategy 7: Get Some New Tech on Board Since safety is such a high-profile issue nowadays, many tech providers are stepping up with tools that help improve safety outcomes. Today’s trend in safety tools is called ‘smart PPE,’ that is, smart personal protective equipment. T H E

This wearable tech can collect, monitor and report worker health markers. It can even provide alerts to prompt workers to change a behavior or avoid an accident. Triax Spot-r technology brings safety down to the individual level. It uses a secure network and wearable devices to give you a view of worker attendance and locations. The data flows right into your cost code and time-keeping systems in Procore. It can also ascertain your swift response to safety incidents and accidents thanks to the data collected by the wearable sensors.

Strategy 8: Make safety the first thought There’s a lot of talk about creating cultures of safety. Many companies are well on their way, if not there already. When you have a culture of safety, you have everyone working on safety. They always think before they act, and they’re not afraid to stop and consider danger before diving in. You’ve got to make it an organizational thing where leadership sets the tone, pace, and example.

Strategy 9: Adopt leading indicators Collecting and analyzing lagging indicators helps you respond to safety issues after the fact. However, when you collect and analyze leading indicators, you have time to be proactive about safety. Create leading indicators by reviewing the workplace hazards you’ve identified. By making them specific, measurable, accountable, reasonable, and timely, you end up with a program that can prevent accidents.

About the Author Duane Craig - Following roles as photojournalist, education director, landscaper and residential project manager/superintendent, Duane moved to writing for a less stressful life. For the past 14 years Duane has covered the construction, food, finance and tech industries. This article was reprinted with permission from Procore. It was originally published April 24, 2022.

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F E AT U R E How to Create a “See Something, Say Something” Safety Culture by Ben Stevens, Kent Companies The Occupational Safety and Health Administration (OSHA) reports one in ten construction site workers are injured every year. However, statistics show there are 30 minor injuries, 10 serious injuries, and one fatality for every 600 near misses.* With that statistic in mind, how do you capture and learn from those near miss incidents that don’t result in injury? A “Safety Around the Clock” culture can only be achieved by a well-rounded program that tracks near misses and applies data to better understand what makes an activity high risk.

What is a near miss?

OSHA and the National Safety Council define a near miss as an “unplanned event that did not result

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in injury, illness or damage – but had the potential to do so.” It also includes the moments before an event even occurs – highlighting the significance of prevention and awareness. Near miss reporting enables safety teams to analyze trends and communicate valuable lessons learned before an incident occurs. The team can use an interaction that prevents the incident from occurring as a precedent that other teams can learn from. Subcontractors are uniquely positioned to improve culture and reduce incidents and injuries through near miss reporting because our craft professionals are performing hands-on work every day.

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Capturing dynamic moments over static ones. At Kent Companies, we’ve implemented a Good Catch program. This initiative empowers anyone in the field or office to submit a near miss, while still on the job. We offer a digital submission form with optional anonymity to keep an eye on trends. In return, our teammates have pride in knowing they are contributing to minimizing job site incidents and keeping their crews safe. It’s more about how the work is done. After job hazard analyses are completed, incidents and injuries can still occur. Paying attention to habits and behaviors is instrumental to preventing injuries. Near miss

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reporting helps to capture trends and behaviors that may cause injury. When a near miss occurs, it is reported, recorded and investigated. Once the report is complete, anyone related to that project can access it with no lag time. The report can be completed as soon as the person doing the audit is finished. These dynamic, almost-incidents provide key intel to keeping our crews safe.

Make it accessible. Safety is ubiquitous. Capture near miss incidents as they happen by making resources as accessible as possible for your team. Everyone can report a “good catch,”…not just field leaders. To that end, ease of use is the foundation of compliance. To make safety reporting available to all, we created a form on our website to submit a near miss, and we made it easily accessible via QR code. We’ve found the sticker also serves as a reminder that safety is always the first priority. Our safety team distributed the QR code stickers to each job site so crews are able to have them on their hard hat and in their work truck at all times. The sticker enables employees to access all safety resources wherever they are, including safety data sheets, the safety manual, site specific safety plans, near miss reporting and our annual safety challenge.

A safety culture you can see. Peer influence goes a long way in safety. Each year, we host the Level UP Safety Challenge – an internal video competition where teammates share practical ideas to keep others safe. When our team uses their voice to drive safety culture, we amplify the reach and impact of our entire safety program. Media consumption is changing. As video reels consume more attention

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than ever on social media, we know people love to watch their peers and friends online. Kent Companies uses this media shift strategically, using video to drive our safety culture. The Level UP Safety Challenge is comprised of safety tips, lessons and content recorded by the team, for the team. The challenge also gives employees a place where everyone can access topic-specific videos whenever they need and want to year-round. It is a good reference point for those moments when you’re unsure about how to handle certain situations safely or are facing a near miss. It fuels a sense of camaraderie among our crews. When they watch their colleagues talk about safety on video, they understand how safety is ingrained in our culture. We talk it, coach it, record it and share it.

Own what you know. Showcase your team’s expertise and experience through job-specific toolbox talks. Gear toolbox talks toward the actual type of work you do, in addition to generic toolbox talks. What is reported from a near miss program can be written into toolbox talks to share a common experience with others before it happens. Be an expert in the realm of safety. Toolbox talks are designed to help hazard recognition in the field and how to safely do the tasks that are within the scope of work. It is imperative that our employees know the risks they face with the tasks that we ask them to do.

Promote a proactive culture. Safety is a team effort that promotes individual responsibilities. The support of leadership helps immensely to enforce and encourage good safety practices. Having goals aligned with managers helps share the

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responsibility and develops a personal relationship with the safety KPI they helped create. Working alongside your team allows you to share policies, best practices and administrative forms. Encourage teams to play on the offense and report a near miss before an incident occurs and tackle the problem at hand. Having the “Good Catch” program available through company communication channels makes it part of their daily routine. Small, habitual efforts such as this make it ingrained to follow the “see something, say something” mindset. This systematic approach helps us gain understanding from an incident’s analysis and utilize that knowledge to reduce future risk of recurrence. Safety is a round-the-clock commitment. It’s our responsibility as the Leaders in Concrete to ensure our team members are safe on and off the job site. Practicing near miss reporting ensures the entire team is prepared to work safely and injury-free. Sources: • OSHA • * University of Illinois at

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About the Author Kent Companies is the 9th largest concrete contractor nationwide. Safety coordinator Benjamin Stevens oversees the organization’s Southeast region spanning across the Charlotte and Nashville markets. He brings more than six years of experience in safety management and leadership to the table.

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F E AT U R E Safety Is Profitable, Unsafe Job Sites Are Costly by Patrick Hogan, Handle.com

Unfortunately, many construction businesses see productivity and safety as being at odds. It’s the bitter truth: cutting costs could be to the detriment of job site safety as an ill-advised approach to raising productivity or seeing safety measures as a needless addition to an already complex and complicated construction project. Of course, there are basic measures built into the process of many construction businesses, even those that are not conscientious about safety. However, many fail to remind themselves that safety and productivity are aligned with the goal of increasing profitability.

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The costs of safety are not without return. And the price of overlooking safety is heavy. Construction is one of the most hazardous industries. According to data from the National Safety Council, the number of preventable fatal injuries in 2020 in construction numbered 957. According to OSHA, 1 in 5 deaths among workers in the United States happens in construction. Safety on job sites is imperative.

Safety is profitable, unsafe job sites are costly When it comes to the costs of T H E

not ensuring safety on the job site, immediate direct costs are incurred as a result of unfortunate incidents. Then there are the indirect costs that could impact the overall finances and even viability of a business. Direct costs include: • Medical bills • The cost of litigation • Regulatory fines • The rise in insurance premiums that

result from workplace accidents On the other hand, indirect costs include replacing workers, hiring, retraining, restructuring projects,

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damage to equipment, penalties for delayed work, and loss of revenue due to project delays. Workplace accidents can also lead to project loss and a permanent dent in your reputation, causing ripples in revenue generation.

Washington roofing contractor Allways Roofing Cost due to “willful serious violations” at three job sites. Some workplace accidents result in litigation, which can incur high costs.

Workforce changes

Medical costs and rising insurance premiums The National Safety Council reported that in 2019, the average cost of an injury that was medically consulted was $42,000, while each fatality incurred medical and other expenses up to $1.22 million per death. According to data from Liberty Mutual, workers comp claims for non-fatal falls and accidents tally up to $2.5 billion annually. Claims are the top reason for insurance premium increases for construction businesses. Financially, an unsafe workplace leads to higher costs.

Regulatory fines Each Occupational Safety and Health Administration (OSHA) Section 5 violation can incur a minimum of $5000 up to $70000 per violation. Section 5 violations are related to ensuring a safe workplace where employers “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Adjusted yearly for inflation, the current maximum penalties for Serious, Other-Than-Serious, and Posting Requirements violations are $14,502 per violation; $14,502 per day beyond the abatement date for Failure to Abate violations, and $145,027 per violation for Willful or Repeated violations. Of course, these fines vary depending on the severity of violations, and other agencies can also levy penalties on businesses. Some fines due to workplace hazards can be business-ending. For context, in 2021, the Department of Labor & Industries imposed a $1,242,807 fine on T H E

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Retaining workers is one of the biggest challenges in construction. Whether you’re looking for general labor or skilled workers, the turnover rate in the construction industry is acutely high. Whenever safety issues arise in workplaces, the risk for departing workers is consistently increased. Whenever an untoward incident happens in the middle of a construction project, replacing workers with the skill required to push through with the project can be costly both in time and money.

Project delays Project delays increase the costs involved throughout the project, both directly and indirectly. Additional labor and equipment usage equal more resources tied up to a project that could affect other projects in the pipeline. Another issue project delays cause is poor client experience. Many contractors are notorious for not finishing projects according to the agreed-upon timeline. Companies that are able to pride themselves on sticking to the project calendar gain the privilege of being the contractor of choice for many customers. Unsafe workplaces where delays are inevitably involved can cost the business current and future customers.

Repeat adjustments in project processes Part of any safety program is ensuring the flexibility to establish new processes as the circumstances change. However, a solid safety strategy means that many issues are appropriately anticipated, allowing businesses to make strategic time and resource investments that streamline safety. When a company takes on

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a reactive approach, the need to implement changes in the middle of a project can lead to inefficient and unoptimized decisions. These may include choosing suboptimal suppliers for safety gear, hiring safety personnel without the appropriate vetting, and losing out on days that could have been frontloaded during crucial points of the project.

Losing projects Losing business opportunities is one of the most consequential indirect costs of unsafe work conditions. Many federal projects review bidders’ citations and may even have internal rules around the acceptable number of citations before a bid gets automatically ignored. Losing work due to the number of safety violations is a real risk for contractors, especially in the hazardous nature of work in construction. Even private clients may balk at repeated serious citations even if all other factors point to you as the best contractor for a project.

Strategic safety Taking a strategic look at safety pays off manifold for contractors. Being conscientious and streamlined in the way you tackle job site safety doesn’t only save lives; it’s also financially wise. Short-term thinking and trimming the fat around safety investment can ultimately cost you profits or your business. About the Author Patrick Hogan is the CEO of Handle.com, where they build software that helps contractors and material suppliers with lien management and payment compliance. The biggest names in construction use Handle on a daily basis to save time and money while improving efficiency.

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The Contractor's Compass - June 2022

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