Let’s Not Mistake “Legal” With “Smart Business Practice”

Donner pass

By Phil La Duke 

I work in organizational development focused on worker safety and I have been employed as such for the better part of 20 years. I am essentially a safety strategy consultant, an architect, if you will, of safety infrastructures that help companies to build on the services I provide them and sustain gains in safety in a changing business environment. I say this because so many of you assume that I am primarily a safety blogger, theorist, or journalist; in short that I don’t have the standing to speak about much of anything. I realize a couple of sentences won’t sway the most ardent safety blowhards who believe that the only valid insights are theirs alone but every once and awhile I need to say it. It keeps me what passes for sane.

In this role of an architect for safety management systems custom-designed and built to fit the unique needs of a business sector, geographic location, and even site I am more frequently asked one question above all others, “What does the law say?” I am not a lawyer and frankly I don’t much care what the law says, when it comes to safety. That’s not to say I can’t recite chapter and verse this regulation or that; I can’t, but that’s not what I’m saying (I solicit the advice of one of my 5,000 plus colleagues at ERM who most often know the answer, or one of my 3,000 plus business contacts, or some other expert). I don’t care what the law says because I know what the business requires and often doing the bare minimum to achieve compliance does scare little in the way of smart business. Of course I care that my clients are at a minimum compliant, but let’s face it, compliance isn’t enough to smartly manage safety.

Three weeks ago I drove from San Francisco to Reno through the Donner Pass (the site where the Donner Party were stranded one winter and resorted to cannibalism. I really wanted to stop and get something to eat there but alas couldn’t find a suitable cannibalism-themed eatery.) The speed limit was 70 mph meaning that vehicles have a legal right to traverse the treacherous incline at a pretty high rate of speed. Legal? Yes; smart? No, at least for me (a man who doesn’t drive that well and who is unfamiliar with the route). The next day I was driving the congested expressways in San Francisco and Sacramento, California. In California it is legal for motorcyclists to zip between the lanes in traffic (usually at a high rate of speed) dangerously close to vehicles as they creep along. I personally witnessed several instances where cyclists engaged in such activity narrowly and miraculously avoided injury. They exercised there legal rights, but at least from where I sat, extremely poor judgment.

In my home state of Michigan, the last couple of years have seen decades of safety legislation systematically dismantled. We now allow fireworks in the hands of drooling idiots and motorcyclists are no longer required to wear helmets, legal? Yes. Smart? Absolutely not. I won’t argue the merits of the safety of wearing a helmet while traveling 120 miles an hour with a rocket on your crotch or one’s God-given right to blow off your finger with a M80, but I do think the point worth making is that just because something is legal doesn’t make it the right thing to do, morally ethical, or a smart thing to do, but many companies manage safety as if these things are synonymous.

I have met a fair amount of safety practitioners (someone about two months ago challenged me to stop calling them “safety professionals”) who will defend the practice of managing to compliance. Their reasoning tends to hinge on the fact that if it’s good enough for the Feds than it should be good enough for me; well it’s not. There are plenty of organizations that operate under substantial risk and yet to compliance programs like VPP as proof of having climbed the safety mountain. It’s a bit like the degenerate gambler who has a “system” for beating the casino. He will point to a pile of winnings as proof that his system can’t lose; until it does.

Compliance is important; but for me the lack of compliance is a merely a symptom of a larger problem, an inability to appropriately manage operations. Aspiring to comply is to aspire to mediocrity it’s akin to shooting for a D instead of an A, and while we may not all want to be world-class in safety, I’d like to think that very few of us want to do just barely enough to squeak by.

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