OSHA Criminal Cases on the Rise

By: Eric J. Conn and Kate M. McMahon

In the forty plus years since Congress enacted the OSH Act, there have been more than 400,000 workplace fatalities, yet fewer than eighty total OSH Act criminal cases have been prosecuted – fewer than two per year – and only approximately a dozen have resulted in criminal convictions. Historically, the prosecutions typically have targeted cases in which the employers were alleged to have falsified documents and lied to OSHA in conjunction with underlying regulatory violations relating to an employee fatality. In other words, the “cover-up,” so to speak, was worse than the crime. Chronic violators and employers who demonstrated a systematic rejection of worker safety laws also were more likely to face charges.

One primary reason that historically so few criminal cases have been pursued under the Occupational Safety and Health Act (“OSH Act”)OSH Criminal 3 is that it is challenging to prove a criminal violation under the Act. Combine that with the fact that, even with a conviction, the consequences are less significant than the consequences for many other white collar crimes and you end of with a situation where the criminal provision of the OSH Act is rarely employed.

Here is how it works. Section 17(e) states:

“Any employer who willfully violates any standard, rule, or order promulgated pursuant to Section 6 of this Act, or of any regulations proscribed pursuant to this Act, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both.”

Pursuant to the Sentencing Reform Act of 1984, 18 USC § 3551 et seq., which standardized penalties and sentences for federal offenses, the criminal penalty for willful violations of the OSH Act causing loss of human life was amended to be punishable by fines up to $250,000 for individuals (18 U.S.C. Sec. 3574(b)(4)), and $500,000 for organizations (id. at Sec. 574(c)(4)).

Accordingly, if an employer’s willful violation of an OSHA standard causes the death of an employee, Continue reading