Under a new Department of Justice (“DOJ”) and Department of Labor (“DOL”) initiative, more criminal cases will be pursued under the Occupational Safety and Health Administration Act (“OSHA”). The initiative seeks to protect workers’ health and safety by addressing related OSHA violations.
Since OHSA was enacted over 40 years ago, few criminal cases have been prosecuted under the Act. The cases prosecuted have primarily involved “cover-ups” by an employer of the initial crime and employers who have chronically violated worker safety laws. Few criminal cases have been pursued because it is difficult to prove a criminal violation and the consequences of these violations are less significant than other white-collar crimes.
Actions subject to criminal sanctions under OHSA include: willful violation of OSHA standards, rules, or orders; falsifying OHSA documents; providing advance notice of an OHSA inspection; committing perjury during OSHA proceedings; violating state criminal laws; and violating environmental statutes.
In order to be convicted under OSHA section 17(e), a prosecutor must establish that:
– An OSHA regulatory standard was violated,
– Such violation was committed by the employer,
– The violation caused death to an employee, and
– The violation was committed willfully by the employer.
A conviction under section 17(e) is punishable by fines up to $250,000 for individuals and $500,000 for organizations (these fines were increased by the Sentencing Reform Act of 1984) or by imprisonment for no more than six months, or both. Convictions under section 17(e) are “Class B” misdemeanors, not felonies. Historically, imprisonment has been rare, although a possibility. Criminal monetary fines are the practical result from these cases.
Although criminal sanctions were not heavily pursued in the past, OSHA has increased the number of cases it refers to the DOJ for investigation. In fact, an informal policy has developed whereby OSHA makes a criminal referral in every case where an employee has died or a willful violation has occurred. Cases with environmental and worker safety regulations violations are more likely to be pursued because of tougher consequences under environmental statutes.
On December 17, 2015, a memorandum of understanding (“MOU”) was issued by Deputy Attorney General Sally Quillian Yates. It announced a new initiative to pursue individual corporate wrongdoing, including seeking criminal charges in cases involving worker endangerment. Before this, a MOU issued in the Fall of 2015 called for greater accountability for corporate wrongs and noted that an effective way to achieve this is by holding individuals responsible for the wrongdoings.
Responsibility for prosecuting these criminal cases will be shared between the DOJ, the Attorney General’s Environmental Crimes Section (“ECS”) of the Environmental and Natural Resources Division, and the DOL. ECS has already trained hundreds of OSHA inspectors on violations.
The commitment by the DOJ and DOL to increase the criminal cases brought under OSHA serves to encourage enforcement of these regulations in order to protect the health and safety of workers. As a result, efforts to identify violations, especially violations carrying possible criminal sanctions, will likely increase.
Jeremy Fetty is a partner in the law firm of Parr Richey Frandsen Patterson Kruse with offices in Lebanon and Indianapolis. He often advises businesses and utilities (for profit, non-profit and cooperative) on organizational, human resources, and transactional matters and drafts and reviews commercial contracts.
The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.