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Criminal prosecutions for violations of OSHA regulations can only result in a misdemeanor conviction with a maximum sentence of 6 months in prison. An employer can only be criminally prosecuted if a willful violation results in the death of an employee. Do you believe this punishment is adequate? Why, or why not?
Joanna PostÂ
A misdemeanor conviction with a maximum sentence of 6 months in prison is reasonable for an employer if criminally prosecuted with a willful violation resulting in the death of an employee. As employers and leaders, one of our primary roles is to protect our employees. If this is a willful violation that results in the death of an employee, the employer should face consequences that exceed penalties. Big companies will not suffer anything when paying only penalties resulting in a slap in the hand, which means they will not feel the actual burn of their negligence. I always refer to my position as a leader as a babysitter for adults. This is because I need to walk the plant every morning and shift change, ensuring that each of my employees has their PPE on and is following protocol, including tenured employees who have been here longer than me. There is not a week that goes by that I do not have to address someone on a violation. When I am on the floor, most employees will tell me what they see out there, if there are issues, unit malfunctions, etc. My job is to take care of them and ensure they are safe. If I know they are doing something that can cause them harm, resulting in death, I, as a human, should face more than penalties.
UNIT VII STUDY GUIDE
Criminal Proceedings
Course Learning Outcomes for Unit VII
Upon completion of this unit, students should be able to:
1. Examine Occupational Safety and Health Administration (OSHA) operational processes.
2. Identify the legal framework for ensuring safe and healthful working conditions.
3. Express employee rights related to workplace safety.
4. Describe legal disincentives for noncompliance with workplace safety standards.
5. Summarize employer responsibilities related to worker safety and health.
7. Summarize legal processes related to employer criminal sanctions.
8. Discuss legal liability issues employers may face regarding injuries and illnesses that occur in the
workplace.
8.1 Explain a legal liability issue that a business could face regarding employee injuries and
illnesses.
Course/Unit
Learning Outcomes
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2
3
4
5
7
8.1
Learning Activity
Unit Lesson
Unit VII PowerPoint Presentation
Unit Lesson
Unit VII PowerPoint Presentation
Unit Lesson
Unit VII PowerPoint Presentation
Unit Lesson
Unit VII PowerPoint Presentation
Unit Lesson
Unit VII PowerPoint Presentation
Unit Lesson
Webpage: “Memorandum of Understanding Between the U.S. Department of
Labor and Justice on Criminal Prosecutions of Worker Safety Laws”
Webpage: OSHA–Willful Violation of a Safety Standard Which Causes Death
to an Employee.
Webpage: OSHA — criminal violations
Unit VII PowerPoint Presentation
Unit Lesson
Webpage: “Memorandum of Understanding Between the U.S. Department of
Labor and Justice on Criminal Prosecutions of Worker Safety Laws”
Webpage: OSHA–willful violation of a safety standard which causes death to
an employee.
Webpage: OSHA — criminal violations
Unit VII PowerPoint Presentation
OSH 3302, Legal Aspects of Safety and Health
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UNIT x STUDY GUIDE
Required Unit Resources
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In order to access the following resources, click the links below.
U.S. Department of Justice. (2011). OSHA—criminal violations. http://www.justice.gov/usam/criminalresource-manual-2011-osha-criminal-violations
U.S. Department of Justice. (2012). OSHA—willful violation of a safety standard which causes death to an
employee. http://www.justice.gov/usam/criminal-resource-manual-2012-osha-willful-violation-safetystandard-which-causes-death
U.S. Department of Justice. (2015). Memorandum of understanding between the U.S. Department of Labor
and Justice on criminal prosecutions of worker safety laws.
https://www.justice.gov/enrd/file/800526/download
Unit Lesson
Introduction
In Unit VI, we spent most of our time discussing the process for adjudicating Occupational Safety and Health
Administration (OSHA) citations, to include the types of hearings available and the decision-making process.
In this unit, we are going to cover the provisions which discuss criminal charges related to violations of OSHA
standards.
Criminal Acts
Under Section 17(e) of the act, an employer can be charged with a criminal act if certain variables have been
met. The violation by the employer must be willful, and the violation must cause the death of an employee.
There must be compelling evidence that the act was willful and that the death of the employee was caused by
the violation. Criminal prosecution is not allowed for violations, even if they are willful, of the General Duty
Clause (Section 5(a)(1)).
The area director, in conversation with the compliance officer and regional administrator decides which willful
violations should be referred to the DOJ for criminal prosecution. The primary variables that the area director
must prove is that the violation was willful and that the violation directly caused or contributed to the death of
an employee (OSHA, 2020). The evidence of causation must be clear and not merely a speculation by the
compliance officer. Documentation is required to be placed into the employerÂ’s file. When a willful violation
occurs and a decision is made to not refer the case for criminal prosecution, the area director must document
the reasoning for not referring the case for criminal prosecution.
Intentional Disregard Versus Plain Indifference Violations
The potential for criminal prosecution for willful violations introduces a need to understand what the act
classifies as willful. There are two types of willful violations under the act: intentional disregard of violations
and plain indifference violations (OSHA, 2020).
Intentional disregard occurs when employers know the requirements of OSHA regulations and standards, and
also know of a condition or practice at their work site that violates the applicable regulation or standard, but
they do nothing to correct the violation. Intentional disregard may also be cited even if the employer was not
aware of the specific OSHA regulation or standard that applied but was aware of a comparable law or
standard from another organization like the state where the work site is located. Another example of
intentional disregard would be when an employer decides that their methods would work better than some
specific requirements of an OSHA standard, so they implement their own methods instead of the OSHA
requirements. An example of this type of intentional disregard would be where an OSHA regulation required
fall protection to be used, and an employer decided that simply putting up warning tape would suffice, and an
employee falls to his or her death as a result.
OSH 3302, Legal Aspects of Safety and Health
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Posting warning signs about safety is not enough.
(Gubisch, n.d.)
Plain indifference violations can occur if the employer is aware of an OSHA regulation that applies to a
specific situation or if he or she is unaware of the OSHA regulation. Basically, for plain indifference to be
cited, the employer has to show that he or she is not concerned with the health and safety of the employees.
This can be as a result of an employer knowing the requirements of a regulation that applies to employees
and not communicating that requirement or knowing of a hazardous condition in the workplace that could
cause harm to employees and not taking any actions to reduce the risk to employees. Some employers
mistakenly believe that they cannot be cited for requirements in regulations that they are not familiar with, so
they simply do not become familiar with the regulations. Additionally, OSHA does not have to prove that an
employer committed a violation with bad or malicious intent; OSHA simply must prove that the violation was
deliberate, voluntary, or intentional (OSHA, 2020).
The definition of willful has been challenged in court by employers. In United States v. Dye Construction
(2012), the 10th Circuit Court of Appeals decided that a violation is willful if an employer either “intentionally
disregards the standard or is plainly indifferent to its requirement.” This means that an employer’s actions can
be willful if they simply ignore OSHA regulatory requirements. This also means ignorance of the standards is
not a defensible position. They can then be held criminally liable if their indifference causes the death of an
employee.
Penalty Comparisons
OSHA does not conduct any criminal prosecutions themselves. OSHA refers the cases that meet the stated
criteria to the Department of Justice (DOJ). The DOJ then decides whether criminal charges will be filed and
prosecutes any cases. Despite the large number of willful violations that are associated with deaths in the
United States, very few actually result in criminal trials and convictions. One reason frequently given for the
lack of criminal proceedings are the limitations placed on criminal penalties under the act. Criminal
convictions under the act are limited to misdemeanor offenses with maximum prison terms of 6 months and a
maximum penalty of $10,000 for the first prosecution. The maximum term and penalty can be doubled if the
conviction occurs after an initial conviction for the same offense (OSHA, 2020). These penalties appear to be
very low for actions resulting in the death(s) of employees.
By contrast, other agencies have the potential for much longer prison sentences and fines for violation of their
regulations. OSHA has been lobbying for years to increase the penalties allowed under the act. The disparity
in punishments has resulted in some cases being tried as violations of the Clean Air Act (1970) instead of
OSHA regulations. One example is the case of a businessman named Alan Elias. Mr. Elias owned a company
in Idaho named Evergreen Resources. Mr. Elias sent his employees into a confined space (an aboveground
storage tank) that contained cyanide and phosphoric acid residue. The employees had no training, no safety
equipment, and no entry permit. The actions he had his employees perform resulted in the production of
hydrogen cyanide gas. When firefighters arrived, Mr. Elias lied about the contents of the tanks, delaying
rescue, and then lied to the emergency room where the employees were transported, delaying treatment. Mr.
Elias then downloaded a permit-required confined space form from OSHAÂ’s website, backdated the form
OSH 3302, Legal Aspects of Safety and Health
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saying he had provided training and safety equipment, and presented the formUNIT
to investigators.
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employee suffered permanent, severe brain damage as a result of the exposure.
This case appears to be a
Title
classic willful violation of OSHA regulations. However, because no employee deaths occurred, Mr. Elias could
not be criminally charged, and penalties would be limited. The U.S. AttorneyÂ’s office tried Mr. Elias under the
Clean Air Act (CAA) instead. Mr. Elias was convicted and received a 17-year prison sentence and $5.9 million
in fines (Associated Press, 2000). The differences in potential penalties are very apparent.
OSHRC Involvement
The OSHRC is not directly involved in criminal prosecutions because it is an administrative court. However,
the OSHRC does sometimes become involved with criminal proceedings. In many cases, OSHA will issue
citations and penalties and concurrently recommend criminal proceedings to the DOJ. When this occurs,
there can be conflicts between the two courts. In some instances, employers have asked the courts to dismiss
the penalties assessed by OSHA based on the concept of double jeopardy, because the employer had
already been convicted in a criminal court. The OSHRC ruled that citations and penalties could still be issued
by OSHA despite criminal convictions for the same offenses (Secretary of Labor v. S.A. Healy Company,
1989). In other cases, contested hearings before the OSHRC have been stayed until the criminal case has
been settled.
Conclusion
As discussed in this unit, employers can face criminal charges for violations related to OSHA standards if
certain criteria is met. While this does not happen much, there is the possibility and it does happen.
Employers should try to minimize the risk of these consequences by staying involved in their workplace safety
program and promptly address all known or obvious workplace hazards.
References
Associated Press. (2000, April 30). Businessman sentenced to prison for exposing worker to cyanide. The
New York Times. http://www.nytimes.com/2000/04/30/us/businessman-sentenced-to-prison-forexposing-worker-to-cyanide.html.
Clean Air Act, 42 U.S.C. §7491 et seq. (1970). https://www.epa.gov/laws-regulations/summary-clean-air-act
Gubisch, E. (n.d.). ID 207261892 [Photograph]. Dreamstime. https://www.dreamstime.com/workplace-safetyoperational-safety-workplace-safety-operational-safety-prevention-danger-workplaceimage207261892
Occupational Safety and Health Administration. (2020). Field operations manual. U.S. Department of Labor.
https://www.osha.gov/enforcement/directives/cpl-02-00-164
Secretary of Labor v. S.A. Healy Company, OSHRC Docket No. 89-1508 (1989).
https://www.oshrc.gov/assets/1/18/SAHealy3.pdf?7537
U.S. Department of Justice. (2012). OSHA: Willful violation of a safety standard which causes death to an
employee. http://www.justice.gov/usam/criminal-resource-manual-2012-osha-willful-violation-safetystandard-which-causes-death
United States v. Dye Construction, 510 F.2d 78 (10th Cir. 2012).
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Suggested Unit Resources
UNIT x STUDY GUIDE
Title
In order to access the following resource, click the link below.
You may want to refer to Chapter 4, previously read in an earlier unit, as it may help you in completing your
assignment for this unit.
Chapter 4: Violations
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