OSHA has begun to refer more cases to the Justice Department for investigation and possible criminal charges, according to two labor and employment lawyers based in Washington DC.
In a post on oshalawupdate.com, attorneys Jordan Schwartz and Eric Conn with Epstein Becker Green write they have been told off-the-record from several OSHA representatives that as a matter of policy, OSHA now makes a criminal referral in every case involving an employee fatality and a willful violation.
Whether that results in a criminal charge depends on a decision by a local U.S. Attorney.
To obtain a conviction of willful violations of the Occupational Safety and Health (OSH) Act causing loss of human life, a prosecutor must establish:
- an OSHA standard (not the General Duty Clause) was violated
- the violation was committed by the employer
- the violation of the standard was the direct cause of an employee’s death, and
- the violation was committed willfully by the employer.
That’s the official line. However, Schwartz and Coon note there’s usually one additional factor: Employers are often alleged to have falsified documents and lied to OSHA in conjunction with violations related to an employee fatality.
Two cases from the second half of 2012 are recent examples of criminal prosecutions under the OSH Act.
In July 2012, a federal grand jury in Texas indicted an environmental services company and its former president on conspiracy charges for illegally transporting hazardous materials that resulted in the death of two employees. The 13-count indictment alleged Port Arthur Chemical and Environmental Services and its former president willfully failed to provide protective measures to limit employees’ exposure to hydrogen sulfide.
Two months later, four former managers from Atlantic States Cast Iron Pipe Company lost their appeal of prison sentences and fines in connection with several safety and environmental violations and the resulting cover-up. Atlantic was placed on four years’ probation and required to pay an $8 million fine. Jail sentences ranging from six to 70 months (almost six years) were upheld.
Since penalties are larger for EPA violations than those involving the OSH Act, prosecutors often use the environmental infractions to increase penalties.
Companies and individuals can also be prosecuted under state criminal laws. The OSH Act doesn’t preempt prosecution under state manslaughter or negligent homicide statutes.
Willful violations of the OSH Act causing loss of human life are punishable by fines up to $250,000 and up to six months in prison for individuals and $500,000 for organizations.
How do you think criminal prosecution should be used in worker fatality cases? Let us know what you think in the comments below.