The federal government says it will step up use of a variety of laws to bring more criminal charges for OSHA violations, particularly those with fatalities and where there was a willful violation.
The Departments of Justice and Labor have announced an expansion of their Worker Endangerment Initiative, which has been underway now for a decade.
The U.S. Attorney General’s Office has transferred responsibility for criminal worker safety prosecutions from the Fraud Section to the Environmental Crimes Section. “The changes are intended to allow ECS to provide support and resources to the U.S. Attorneys’ Offices in this important area,” according to a memo sent to all U.S. attorneys.
While civil penalties under the Occupational Safety and Health Act of 1970 (which created OSHA) are set to increase in 2016, criminal penalties have never been increased.
Compared to other criminal penalties for violations of federal laws, those under the OSH Act are small: a fine of no more than $10,000 and up to six months in prison. Criminal penalties can be brought under the OSH Act for just three infractions:
- willfully violating a specific standard which causes the death of an employee
- giving advance notice of OSHA inspection activity, and
- falsifying documents filed or required to be maintained under the OSH Act.
Prosecutors are now encouraged to “make enforcement meaningful by charging other serious offenses that often occur in association with OSH Act violations.” Those include making false statements, obstruction of justice and environmental crimes. Criminal convictions under these statutes include prison terms of up to 20 years and six-figure fines.
Criminal cases to date
The Worker Endangerment Initiative was first announced in March 2005 in connection with a guilty plea by Motiva Enterprises to a Clean Air Act negligent endangerment charge and a Clean Water Act illegal discharge violation for the death of a worker and injuries to several others caused by the collapse of a sulfuric acid tank at the company’s Delaware City, DE, refinery.
In the first contested case under the Initiative in 2006, a jury handed down guilty verdicts against Atlantic States Cast Iron Pipe Company (a subsidiary of McWane) and four of its managers: its plant manager, a maintenance supervisor, a superintendent and a human resources manager. The company and four managers were convicted of a conspiracy charge for an unlawful agreement to violate the Clean Water Act and the Clean Air Act, and to expose employees to dangerous conditions.
Federal authorities call the McWane case “the signature success of the earlier efforts” under the Initiative.
Despite the ten-year history of the Initiative, criminal prosecutions connected to safety violations are still rare: There were only three in 2013. However, there were 27 in 2014, the highest number ever.
And of course, prosecution doesn’t guarantee conviction. A trio of cases within weeks of the announcement of the expansion of the Worker Endangerment Initiative show how results can vary:
- A jury convicted former Massey Energy Company CEO Donald Blankenship of one count in connection to the mine explosion at Upper Big Branch in West Virginia in 2010 that killed 29 miners. Blankenship could be sentenced to a year in prison.
- Federal authorities got few criminal charges to stick against individuals in the BP Deepwater Horizon explosion in 2010 that killed 11 workers. Prosecutors recently dropped the remaining manslaughter charges against two supervisors who were aboard the platform at the time of the explosion.
- James McCullagh, the owner of a roofing company, pleaded guilty in federal court to six charges in connection with the death of a roofer in 2013. McCullagh faces up to 25 year in prison and a fine.
Increased criminal prosecution garners substantial support in the occupational safety and health community. In a Safety News Alert survey this fall, we asked, “Do you favor more criminal prosecution, including jail sentences, of company management when an employee dies on the job due to willful safety neglect by the employer?” The results:
- Yes: 59%
- Not sure: 26%, and
- No: 15%.
What do you think about the expansion of the Worker Endangerment Initiative that could lead to more managers going to prison for serious safety and environmental violations? Let us know in the comments.