Criminal Charges and OSHA–Employers Should Take Care

Any employer in New York is likely aware that OSHA can, and often does, issue monetary penalties for health and safety violations occurring at an employer’s place of business. Employers are also likely aware that in certain instances, they can even face criminal sanctions for certain actions. Under the Occupational Safety and Health Act, OSHA can and does bring criminal charges against employers when an employer’s willful violations cause an employee’s death, when the employer provides false statements on a document required by the Act, or if they provide advance notice of an OSHA inspection.

Pursuant to Title 29 U.S.C. Section 666 and Section 17 of the OSH Act of 1970, there are three separate ways an employer or individual can be criminally prosecuted. The first is a finding of a willful violation of any standard, rule, or order promulgated by Section 6 of the OSH Act of 1970, or any regulations prescribed by the OSH Act of 1970, that causes the death of an employee. 29 U.S.C. 666(e)

In order to prove a violation of 29 U.S.C. 666(e), the government must prove four elements:

  1. The defendant is an employer engaged in a business affecting commerce
  2. The employer violated a “standard, rule or order”
  3. The violation was willful
  4. That violation caused the death of an employee

If convicted pursuant to 29 U.S.C. 666(e), an individual can be punished by a fine up to $250,000. An organization that is convicted can face a fine up to $500,000. Upon a first conviction, an individual can be imprisoned up to six months in conjunction with any monetary fine imposed by court. Upon a second conviction, an individual can be imprisoned up to one year in conjunction with any fine imposed.

The second way an employer or individual can face criminal prosecution is if they violate 29 U.S.C. Section 666(f). 29 U.S.C. Section 666(f) forbids the giving of advance notice of any inspection without authority from the secretary or his designees. Upon a conviction pursuant to 29 U.S.C. Section 666(f), the individual or employer shall be punished by a fine of no more than $1,000.00, or imprisonment for no more than six months, or both.

The third way an employer or individual can face criminal prosecution under 29 U.S.C. 666 is by knowingly making a false statement, representation, or certification in any application, record report, plan, or other document filed or required to be maintained.[1] If an individual or employer is convicted pursuant 29 U.SC. 666(g), that individual can face a fine up to $10,000.00 and imprisonment up to six months.

However, many employers do not know that OSHA also refers certain safety violations to district attorney offices in fatality cases. The D.A.’s office then analyzes the case to determine if a business owner can be charged individually with manslaughter and/or any other criminal charges.

While OSHA can issue a fine of up to $10,000 and imprison an individual for up to six months, district attorney offices have much greater latitude and penalties available to them to punish wrongdoing. Just last month, the Grandby, Colorado District Attorney’s office charged the owner of a general contractor with manslaughter following the death of an employee that occurred while he worked at a job site. The business owner settled the underlying OSHA violations with one willful, 10 serious, and one other-than-serious citations. The willful citation meant the owner showed deliberate indifference to the facts or law and that he had actual knowledge of significant risks as well as the knowledge and ability to take steps to avoid the inherent risks. In 2014, a company director in Georgia pled guilty following a worksite fatality and was sentenced to 10 years in prison.

Other statutes provide additional penalties for violations perpetrated by companies. Title 18 U.S.C. Section 1001 provides felony penalties for false statements made in connection with any matter within the jurisdiction of the U.S. government. A perjury conviction can be found if it is determined that an individual falsified or concealed material facts, made a materially false statement, or presented a false document. If an individual is convicted of perjury, that individual can be fined up to $250,000 and be imprisoned up to five years. An organization can be fined up to $500,000 or two times any resulting financial gain or loss related to the falsification.

What these examples show us is that while not as frequently utilized as monetary fines, OSHA is more than willing to refer cases to local prosecuting authorities when the situation warrants it. Should a workplace fatality occur, we recommend that key management employees consult with legal counsel prior to entering into any settlements with OSHA. This will prevent any misunderstanding regarding the risks of possible future criminal charges. If not diligent in compliance, employers and employees risk not only the health and safety of their staff, but also potential future criminal liability with associated penalties.

[1] See 29 U.SC. 666(g).

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