(OSH) Act

Most know that lawsuits against an employer based on an employee’s workplace injury are barred by the applicable State’s Worker’s Compensation Act. However, did you know that in some circumstances, an employer may be criminally liable for a workplace fatality?  It’s true.  Under the Occupational Safety and Health Act (OSH Act), when the cause of an employee’s death is determined to be directly related to a willful violation of an applicable health and safety regulation, criminal penalties can be assessed against the employer. The same is true (and to a typically more significant effect) under some state laws, as well.

Criminal exposure under the OSH Act can include imprisonment of up to six months in jail or a court-imposed fine of up to $500,000 (for a corporation – $250,000 for an individual), or both. Under various state laws, individuals and corporations can be subject to multiple years imprisonment for felony convictions and millions of dollars of fines.  And, based on a Memorandum of Understanding (MOU) between the Department of Labor and the Department of Justice, some criminal OSH Act violations may be prosecuted under the environmental laws, laws regarding perjury, and others, that would allow for up to twenty (20) year prison terms.

A violation can only be classified as “Willful if the Occupational Safety and Health Administration (OSHA) can show that the employer knowingly committed the violation or committed the violation with plain indifference to the safety and health requirements under the law. Under the OSH Act, a Willful violation can only will lead to criminal penalties if a fatality is involved.  But, even when an employee death is not at issue, a Willful violation can still lead to significantly large civil penalties.  Under recent legislation that required OSHA penalties to be increased to account for inflation, and subsequently tied to the Consumer Price Index, a single Willful violation can be assessed as a civil penalty of up to $126,749.

While it is true that such criminal prosecutions are rare – in over 400,000 workplace fatalities since the OSH Act was adopted in 1970, only 88 (through 2015) had been prosecuted criminally – the push to hold employers accountable has picked up steam with the MOU referenced above and new legislation (Protecting America’s Worker’s Act) that was re-introduced in January of this year. The new Act seeks to increase the statutory jail sentence for a criminal violation of the OSH Act to 10 years.  For this reason, it is absolutely critical that whenever an employer suffers a workplace accident or incident that results in an employee fatality that competent OSHA and criminal counsel be involved very early in the process.