The New York Times Series on OSHA: How Will It Affect OSHA Criminal Enforcement? Two Distinguished Management Attorneys Examine the Impact of a Newspaper Series Faulting OSHA's Infrequent Pursuit of Criminal Penalties
Bailey, Melissa A., Yohay, Stephen C., Occupational Hazards
In late December 2003, the New York Times published a series of articles that was highly critical of the Occupational Safety and Health Administration (OSHA). (1) The articles recounted tragic workplace accidents that resulted in fatalities and willful violations, but were not referred by OSHA to the Department of Justice ("DOJ") for potential criminal prosecution.
While the long-term impact of the series is not clear, Congress has clearly taken notice, and legislation has been introduced that would increase the criminal penalties available for willful violations of federal OSHA standards that cause employee fatalities. It also seems likely that in high-profile cases, OSHA may become more reluctant to enter into settlement agreements and may refer more cases to DOJ. Also, even without an OSHA referral, DOJ has the power, so far seldom used, to initiate its own investigation of a workplace fatality, and the Times series may spur DOJ to take this initiative more often. Finally, employee advocacy groups have begun to clamor for criminal investigations where major accidents have occurred.
Criminal Penalties Under the OSH Act
A willful violation of an OSHA standard that results in the death of an employee is a misdemeanor that carries a maximum prison sentence of 6 months and a maximum fine of $250,000 for an individual and $500,000 for an organization. A "willful" violation is generally defined as an intentional violation or a violation committed with "plain indifference" to the requirements of the standard. Of course, to prove a crime, the government must prove the elements of the violation beyond a reasonable doubt, a substantially greater burden of proof than in the usual OSHA civil case.
All workplace fatalities must be reported to OSHA within 8 hours, and OSHA typically arrives at the worksite to investigate soon after the report. OSHA's internal fatality investigation procedures state that an "initial determination whether there is potential for a criminal violation" must be made "early in investigations." The "potential" for a criminal violation is based upon "evidence that an OSHA standard has been violated and that the violation contributed to the death," and whether "there is reason to believe that the employer was aware of the requirement of the standard and knew it was in violation of the standard." If the local OSHA area office believes that a criminal investigation should be conducted, the case is referred to an OSHA regional office for review, and then to the Office of the Solicitor, the branch of the Department of Labor whose attorneys represent OSHA. Nominally, the Office of the Solicitor makes the final determination as to whether a matter will be referred to DOJ for criminal investigation and prosecution. In practice, criminal referrals are often discussed and approved by the OSHA national office, including the assistant secretary of labor for OSHA. In especially high profile cases, the secretary of labor's staff may become involved.
In states subject to federal OSHA enforcement, (2) criminal investigations normally result from OSHA referring a matter to DOJ. As noted, however, even if OSHA does not conclude that a violation is "willful," DOJ may still investigate and criminally prosecute an employer. In addition, local prosecutors may investigate and prosecute for state law crimes such as manslaughter and criminally negligent homicide. In fact, the Times series points out that some states now require OSHA inspectors to report fatalities caused by safety violations to prosecutors, and other states, including Arizona, California and Michigan, have increased penalties for violations that result in fatalities or severe injuries. (3)
The New York Times Series
The first article described a trench collapse that killed a 22-year old plumber's apprentice in June 2002. According to OSHA's investigation, the employer failed to place a trench box into the trench or slope the sides to keep the trench from collapsing. …