The June/July 2016 issue of Feed & Grain Magazine featured an article by Eric J. Conn and Dan C. Deacon, of Conn Maciel Carey’s national OSHA Practice Group, regarding OSHA’s upcoming increase in maximum civil penalties and renewed focus on criminal investigations and prosecutions. The article discusses the impact of these two new OSHA enforcement issues on the grain industry in particular, but the background and lessons reviewed apply to virtually every employer in the United States.
The Legal Backgrounder reviewed the history of OSH Act criminal cases and a new Department of Justice and Department of Labor joint initiative designed to increase the frequency of both criminal prosecutions for workplace safety violations generally, and to pursue more criminal charges against individual managers rather than just corporate defendants. The article explains:
“A key change in DOJ’s strategy for ‘upping the ante’ in workplace-safety criminal enforcement is the decision to transfer responsibility for prosecuting worker-safety violations from the Justice Department Criminal Division’s Fraud Section to the Environmental Crimes Section (ECS) of the Environment and Natural Resources Division.”
The article concluded that:
“the new Department of Justice worker-endangerment initiative will result in a renewed and more concerted effort to pursue criminal charges under environmental statutes where workers’ health and safety is allegedly being threatened. Based on this rekindled commitment by DOL and DOJ, employers should expect government officials investigating workplace-safety violations to probe for possible criminal violations—not only under the OSH Act where there has been a fatality, but under the myriad of environmental statutes and Title 18’s federal criminal code.”
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”) 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 →