Osha field operations manual 2011

OSH 3525, Legal Aspects of Safety and Health 1

Course Learning Outcomes for Unit VII Upon completion of this unit, students should be able to:

8. Explain enforcement and the judicial review process of criminal OSH violations. 8.1 Summarize the criteria that must be met for criminal proceedings under the OSH Act. 8.2 Summarize the maximum criminal penalties allowed under the OSH Act. 8.3 Describe the role the OSHRC plays for criminal prosecution under the OSH Act.

Reading Assignment OSHA’s Field Operations Manual (FOM): Chapter 4: Violations, pp. 4-30-4-35 Occupational Safety and Health Administration. (2011). Field Operations Manual. Retrieved from

https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-159.pdf

Unit Lesson In the previous units, we have discussed civil actions that the Occupational Safety and Health Administration (OSHA) can take under the OSH Act. The Act also contains provisions for criminal charges related to violations of OSHA standards. 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 United States Department of Justice (DOJ) includes corporate officers and directors in the definition of “employer” as it relates to who can be charged under the Act (DOJ, 2012). One question that arises frequently is what constitutes a willful violation. Does this term mean that the employer knows that a specific action could result in the death of an employee? 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” (United States v. Dye Construction, 2012). This means that an employer’s actions can be willful if they simply ignore OSHA regulatory requirements. This 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. OSHA does not conduct any criminal prosecutions themselves. OSHA refers the cases that meet the stated criteria to the 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 U.S., very few actually result in criminal trials and convictions. From 1970 to 2012, there have been over 400,000 workplace fatalities in the U.S. Of those cases, less than 80 criminal cases have been prosecuted (Schwartz & Conn, 2012). 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 low penalties. By reference, other agencies have the ability to produce much longer prison sentences and fines. OSHA has been lobbying for years to increase the penalties allowed under the Act. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, recently testified about the disparity to Congress (OSHA, 2010). His comments included references to cases where companies were fined millions of dollars for killing fish and other wildlife and only $175,000 for

UNIT VII STUDY GUIDE

Criminal Proceedings under the OSH Act

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taking the life of an employee. The disparity in punishments has resulted in some cases being tried as violations of the Clean Air Act 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 with 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 employee was transported, delaying treatment. Mr. Elias then downloaded a permit-required confined space form from OSHA’s website, back-dated the form saying he had provided training and safety equipment, and presented the form to investigators. One employee suffered permanent, severe brain damage as a result of the exposure. This case appears to be a classic willful violation of OSHA regulations. However, since no employee deaths occurred, Mr. Elias could not be criminally charged, and penalties would be limited. The U.S. Attorney’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 (“Businessman Sentenced to Prison,” 2000). The differences in potential penalties are very apparent. The OSHRC is not directly involved in criminal prosecutions because they are 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.

References Businessman sentenced to prison for exposing worker to cyanide. (2000, April 30). New York Times.

Retrieved from http://www.nytimes.com/2000/04/30/us/businessman-sentenced-to-prison-for- exposing-worker-to-cyanide.html.

Occupational Safety and Health Administration. (2010). Testimony of David Michaels assistant secretary for

Occupational Safety and Health U.S. Department of Labor. Retrieved from https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=TESTIMONIES&p_id=1062

Schwartz, J. B., & Conn, E. J. (2012). OSHA criminal referrals on the rise. OSHA law update. Retrieved from

http://www.oshalawupdate.com/2012/12/18/osha-criminal-referrals-on-the-rise/. Secretary of Labor v. S.A. Healy Company, OSHRC Docket No. 89-1508 (1989) United States v. Dye Construction, 510 F.2d 78 United States Court of Appeals,

Tenth Circuit, (2012) U.S. Department of Justice. (2012). OSHA: Willful violation of a safety standard which causes death to an

employee. Retrieved from http://www.justice.gov/usam/criminal-resource-manual-2012-osha-willful- violation-safety-standard-which-causes-death

Suggested Reading If you are interested in learning more about criminal violations in regard to OSHA regulations, review the resources below:

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Johnson, S., Brauer, B., Bird, S., Abergel, A., Davey, J., & Strayhorne, M. (2014). Environmental disasters and human health consequences: A year in review. Sustainable Development Law & Policy, 14(3), 37- 42, 53-54.

Rabinowitz, R. S. (Ed.) (2004). Occupational Safety and Health law. Retrieved from

https://www.osha.gov/dcsp/osp/osp_contested_case.pdf Schwartz, J. B., & Conn, E. J. (2012). OSHA criminal referrals on the rise. Retrieved from

http://www.oshalawupdate.com/2012/12/18/osha-criminal-referrals-on-the-rise/ U.S. Department of Justice. (2012). OSHA--willful violation of a safety standard which causes death to an

employee. Retrieved from http://www.justice.gov/usam/criminal-resource-manual-2012-osha-willful- violation-safety-standard-which-causes-death

U.S. Department of Justice. (2011). OSHA -- criminal violations. Retrieved from

http://www.justice.gov/usam/criminal-resource-manual-2011-osha-criminal-violations

Learning Activities (Non-Graded) The EPA publishes a summary of criminal prosecutions on the webpage below: http://www2.epa.gov/enforcement/summary-criminal-prosecutions. Review several of the criminal cases. Which of the cases do you believe could have been prosecuted under the OSH Act instead? Why do you believe they were prosecuted under EPA regulations instead?

http://www2.epa.gov/enforcement/summary-criminal-prosecutions