Refusal to Cooperate With OSHA Leads to Federal Criminal Contempt
For what is believed to be the first time in OSHA history, a company recently was found in criminal contempt for refusal to comply with a warrant obtained by OSHA inspectors to conduct an inspection. A Missouri foundry, its owner, and three representatives of an independent safety-consulting company were found in criminal contempt by a federal judge for refusing access to the site by OSHA inspectors. The U.S. District Court in Kansas City ordered Martin Foundry Co., Inc., owner Darrell Stone, and representatives of Compliance Professionals, Inc. to jointly pay $10,778 to reimburse departmental costs. In addition, Martin Foundry and Darrell Stone were fined $1,000 for their failure to cooperate. Each of the three consultants were fined $2,000 for willfully impeding OSHA’s investigation and refused to comply with the warrant.
OSHA investigators attempted to inspect the foundry following a report by the Missouri Department of Health that an employee there had an elevated blood lead level. The previous year, Martin Foundry received 7 citations for serious violations of OSHA’s lead standard. Martin Foundry agreed to correct the problems and was assessed a $9,400 penalty. Stone would not permit the inspection unless he was told the name of the employee. The OSHA inspector refused to do so and left the foundry. OSHA returned a couple of weeks later, and again was denied access to the facility to conduct an inspection, leading the agency to obtain a warrant and return to complete the inspection. Despite the warrant, Stone and the Compliance Professionals’ representatives denied access. OSHA inspectors returned later that day with U.S. marshals to enforce the warrant, and the foundry and its consultants “persisted in obstructing OSHA’s investigators after the U.S. marshals left the workplace. OSHA was only able to complete the inspection after U.S. Departments of Labor and Justice attorneys initiated contempt proceedings,” OSHA stated. Prior to OSHA being allowed to complete its on-site inspection, there had been alterations to the workplace. The full extent of the alterations to the workplace is unknown.
Employers need to apply a balancing test when deciding whether to require OSHA inspectors obtain a warrant prior to inspection. On one hand, requiring a warrant gives employers leverage to negotiate the scope of the inspection and buys time for the employer’s chosen representative to get to the site to be present for the inspection. On the other hand, an employer risks the wrath of an agitated OSHA inspector. If an OSHA inspector has to obtain a warrant, they are more likely to issue citation violations, instead of working with the employer on issues. Also, asking for a warrant to correct safety operations rarely works. OSHA can interview employees to determine what changes were made over the past couple of weeks and what employees were coached to say and not say. Finally, when a warrant comes into play, employers risk running afoul of both civil and criminal law. As shown above, there is now precedent for courts to hold people criminally liable for refusal to cooperate with a court order.