When we think of OSHA citations, we usually think of fines, but did you know they could put you behind bars. The owner of a Montana asphalt company may find out how real that threat is. According to an article from the Society for Human Resource Management, an employee at the MR Asphalt Inc died after he fell off an oil tank and hit his head on concrete. OSHA cited the company for 16 violations of regulations, including one willful violation for failing to provide a guardrail or fall protection. The incident is being prosecuted as a criminal case, meaning that, if there is a conviction, it could mean a six month prison term and a $10,000 fine against the owner, Martin Romano, and a $500,000 fine against the company.
The trigger for the case going to prosecutors appears to have been that MR Asphalt did not report the fatality within the required eight-hour time period and failed to record the fatality. Willful violations of OSHA regulations that cause a fatality have always carried a potential prison sentence, but it is almost never carried out. In fact, the article quotes Eric Conn, of Epstein Becker Green, as saying that of the 400,000 workplace fatalities since the OSH Act was passed 40 years ago, less than 80 were prosecuted as criminal cases and only about a dozen of those resulted in convictions. So the odds of a prison sentence following an OSHA violation are pretty low, but they could change. Conn is quoted as saying that OSHA has started referring every case that involves a fatality and a willful violation to the U.S. attorney’s office. Conn says, in order to get a prosecution in a case involving a fatality and a willful violation, prosecutors must prove four things:
- An OSHA standard other than the General Duty Clause was violated.
- The violation was committed by the employer.
- The violation of the standard was the direct cause of an employee’s death.
- The violation was committed willfully by the employer.
The owner in this case has pleaded not guilty and is awaiting trial.