As the economy grows and companies’ operations are busier, workplace injuries also increase. And as companies add employees, they may fail to keep up their safety regimens, which can result in an uptick in workplace injuries.
Some businesses have so much to keep track of that they may be negligent in enforcing their safety standards and making sure that all of their safety devices are in proper operating order.
When an employee is injured due to an employer’s negligence in keeping up its safety practices, there is typically no right of action for the employee under the exclusive remedy bargain that’s implicit in all workers’ comp agreements.
In that bargain, the employee trades the ability to sue the employer for the right to receive benefits and medical care to treat the injury.
But there is a point where employer negligence spills over into a criminal issue and owners risk incarceration for flagrant violations that put employees at risk.
And during the last few years OSHA has been stepping up criminal prosecutions of employers whose actions were more than just negligent.
While criminal penalties under the federal Occupational Safety and Health Act are fairly limited, with imprisonment capped at six months and fines capped at $10,000, the fines are stiffer for willful violations that cause loss of human life, with maximum fines of $250,000 for an individual and $500,000 for an organization.
If an employer’s willful violation of an OSHA standard causes the death of an employee it is not a felony, but a “Class B” misdemeanor.
And although the act carries with it the possibility of a prison term, in practice, prison occurs only in the rare circumstances where a senior management official operates de facto as the company. Otherwise, practically, only criminal monetary fines are applied for criminal violations.
Historically, there have been few prosecutions. There have been fewer than 80 OSH Act criminal cases resulting from the more than 400,000 workplace deaths that took place since the law was enacted. That’s fewer than two a year, and only 14 have resulted in criminal convictions.
Also, it’s challenging to prove a criminal violation under the OSH Act.
But in 2016, the Department of Justice (DOJ) started encouraging all United States Attorneys to charge employers for other violations that occur in connection with OSH Act violations, such as obstruction of justice, making false statements, witness tampering and conspiracy.
U.S. Attorneys were also encouraged to consider environmental crimes, which often occur in concurrence with worker safety violations. These offenses carry more significant periods of incarceration and fines.
Two noteworthy examples of this wider implementation of the law are:
- The owner of a roofing company in Philadelphia lied to OSHA on four occasions that he’d provided fall protection to employees after one his workers fell to his death. He even went so far as to instruct other workers to tell OSHA that they had worn fall protection on the day of the incident.
He was indicted for lying, obstruction of justice and willfully violating an OSHA standard. Facing 25 years in prison, he pleaded guilty and was sentenced to 10 months in jail.
- A worker was killed in 2015 because of a trench collapse at a construction site in Manhattan’s Meatpacking District. The general contractor was convicted of manslaughter for improperly securing the work site.
To obtain a conviction under Section 17(e) of the act, a prosecutor must establish beyond a reasonable doubt (unlike the lower civil standard for ordinary OSHA enforcement actions) that:
- An OSHA standard (not the General Duty Clause) was violated;
- The violation was committed by the employer (in other words, not by a rogue employee);
- The violation of the standard was the direct cause of an employee’s death (prosecutors must prove beyond a reasonable doubt that the conduct underlying the OSHA violation resulted in the death); and
- The violation was committed willfully by the employer.
Other actions that may result in criminal action
According to a the DOJ, in addition to willful OSHA violations that caused an employee fatality, employers (and employees) can face criminal sanctions in the following circumstances:
- Falsifying OSHA documents
- Advance notice of an OSHA inspection
- Perjury during OSHA proceedings
- Violating state criminal laws – The OSH Act does not preempt prosecution under state criminal laws, such as manslaughter or negligent homicide for work-related deaths and injuries.
- Violating environmental laws.