Employment-Related Crimes

By Clark, Christopher J.; Clement, Brittany | American Criminal Law Review, Spring 2011 | Go to article overview

Employment-Related Crimes


Clark, Christopher J., Clement, Brittany, American Criminal Law Review


  I. INTRODUCTION

 II. WORKER SAFETY
     A. Occupational Safety and Health Act
        1. Employer's Willful Violation of Standard Causing
           Death
           a. Elements of the Offense
                i. Employer
               ii. Willful Violation
              iii. Specific Standard, Rule, Order, or Regulation
               iv. Causes Death
           b. Defenses
                i. Preemption
               ii. Unpreventable or Unforseeable Employee
                   Misconduct
              iii. Impossibility of Compliance
               iv. Greater Hazard
                v. General Defenses
        2. False Representations
        3. Enforcement
        4. Penalties
     B. Federal Mine Safety and Health Act

III. THE FAIR LABOR STANDARDS ACT
     A. Elements of the Offense
        1. Employee
        2. Employer
        3. Willful Violation
     B. Penalties
     C. Enforcement

 IV. PAYMENT OR LOANS BY EMPLOYER TO EMPLOYEES OR LABOR
     ORGANIZATIONS
     A. Elements of the Offense
        1. Employer
        2. Willfulness
        3. Pay or Lend Money or Thing of Value
        4. Employee or Representative of an Employee
        5. Request or Receive
     B. Exceptions
     C. Penalties

  V. PROTECTING UNION FUNDS UNDER THE LABOR-MANAGEMENT
     REPORTING AND DISCLOSURE ACT
     A. Elements of the Offense
        1. Officer or Employee
        2. Appropriation of Union Assets for One's Own or
           Another's Purpose
        3. Fraudulent Intent
     B. Defenses
     C. Penalties

I. INTRODUCTION

This article analyzes criminal statutes that punish employers for violations of occupational safety and employment standards. The pertinent regulatory scheme was enacted to ensure worker safety, eliminate labor conditions detrimental to the nation's commerce and the general welfare of workers, and provide labor unions with greater protection from corrupt union and management officials. Section II of this article discusses criminal sanctions relevant to worker safety under the Occupational Safety and Health Act ("OSH Act") (1) and the Federal Mine Safety and Health Act ("FMSHA"). (2) Section III analyzes criminal sanctions applicable to employment practices under the Fair Labor Standards Act ("FLSA"). (3) Section IV discusses the Labor Management Relations Act ("LMRA"), which prohibits employers from making payments and loans to employees or labor organizations. (4) Finally, Section V reviews [section] 501(c) of the Labor-Management Reporting and Disclosure Act ("LMRDA"), which prevents appropriations of union funds for non-union purposes. (5)

II. WORKER SAFETY

This Section discusses criminal laws relevant to worker safety. Part A analyzes the OSH Act (6) by examining two offenses: (i) willful violation of a specific standard resulting in employee death and (ii) false representation. In addition, this Section discusses enforcement of these provisions and the applicable penalties for offenses. Part B discusses FMSHA, (7) including the elements of the offenses.

A. Occupational Safety and Health Act

Congress enacted the OSH Act in response to increasing numbers of employee deaths and injuries in the late 1960s. (8) The OSH Act's general duty clause requires employers to furnish their employees with a working environment free from recognized hazards, whether or not such hazards are covered by agency regulations. (9) The special duty clause requires employers to comply with the specific standards promulgated under this Act. (10) The statute also requires compliance with specific occupational safety and health rules promulgated by the Secretary of Labor. (11)

The OSH Act provides for criminal sanctions (12) in three situations: (i) when an employer's willful violation of a standard, rule, order, or regulation causes the death of an employee; (13) (ii) when an individual makes a false representation regarding OSH Act compliance; (14) and (iii) when any person gives advance notice of an inspection.

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