Employers May Face State Criminal Liability for Safety Violations

JUPITER, FLA.—Criminal prosecutions under the federal Occupational Safety and Health Act (OSH Act) are rare and only happen in limited circumstances. But employers can be prosecuted under stricter state workplace or general criminal laws.

Under the OSH Act, an employer will face criminal penalties only if a worker was killed because of an employer safety violation that was deemed willful, explained Katie Tracy, a workers' rights policy analyst for the Center for Progressive Reform in Washington, D.C.

During a panel discussion at the American Bar Association Occupational Safety and Health Midwinter Meeting on March 9, Tracy made the case that penalties—under any law—should be significant enough to deter violations, especially willful ones.

Jason Mills, an attorney with Morgan Lewis in Los Angeles, said stringent laws can be scary for employers.

He noted that California businesses face more potential liability under state law than federal law. For example, California Division of Occupational Safety and Health (Cal/OSHA) violations can carry hefty criminal penalties—not only against employers but also against managers and supervisors.

Furthermore, Mills said, the California Bureau of Investigation is required to investigate every workplace fatality, or any incident that seriously injured five or more employees to determine whether to refer the matter for criminal prosecution.

[SHRM members-only toolkit: Complying with California Safety Standards]

Federal Limitations

The maximum penalty under the federal OSH Act for a willful violation that caused a worker's death is $250,000 and/or six months in jail for an individual and $500,000 for an organization.

Additionally, an employer may have to fork over up to $10,000 for knowingly making false statements.

Tracy said these penalties are weak, and legislative action is needed at the federal level to strengthen workplace safety laws and impose stiffer fines for violations.

One such measure, the Protecting America's Workers Act, was introduced in the current legislative session by Rep. Joe Courtney, D-Conn. (H.R. 914).

This bill aims to increase protections for whistle-blowers, raise penalties for "high gravity" violations, adjust penalties for inflation, and provide access to investigation information for victims and their families. Similar legislation, however, has been proposed in past sessions without success.

Greg Dillard, an attorney with Katten Muchin Rosenman in Houston, noted that post-accident criminal investigations or prosecutions can be conducted under other federal laws, such as the Clean Air Act, the Clean Water Act or the Mine Safety and Health Act.

There's a new multidisciplinary approach to criminal enforcement and worker safety, he said: It's now common for federal civil and criminal, state, and local investigations to proceed concurrently.

State Prosecution

Twenty-one states and one territory have a state plan approved by the federal Occupational Safety and Health Administration (OSHA). At a minimum, these plans must adopt the federal standards.

Although many states still operate under the federal standard, Tracy said, they can opt to impose more stringent criminal liability on employers.

But states aren't confined to following workplace safety statutes to investigate incidents. State prosecutors can also pursue charges against employers under the state's general criminal laws.

This isn't a new idea, Tracy said. States have the power to enforce general criminal laws that protect public safety, she said, and that includes employer safety violations.

Diana Florence, an attorney with the Manhattan District Attorney's Office in New York City, does just that. She focuses on cases related to construction fraud and construction safety.

Florence said employers should make sure they have robust safety programs in place. When violations happen, she wants to see that a corporation is following applicable safety standards and that the violation was caused by a "lone wolf" or rogue manager.

She noted that prosecutors in different states are now collaborating, and they have new resources thanks to technology advancements.

For example, workers can send her office pictures of workplace safety violations in real time using the WhatsApp application on their smartphones.

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