Does anyone doubt that safety violations are considered crimes and that safety incidents could put company officials in jail? Just last week the former head of coal company, Massey Energy went on trial accused of breaking mine safety rules. A terrible explosion at a Massey mine five years ago killed 29 miners. This summer, Bumble Bee and two of its managers entered guilty pleas after being charged in the death of a worker at a California plant.
OSHA has made it very clear recently that it intends to pursue criminal charges against executives for safety violations and that it wants to increase the penalties. Here are some of the most important keys to the OSHA effort:
Justice Department crackdown on corporate wrongdoing – The so-called Yates Memo, written by Deputy Attorney General Sally Quillian Yates, is not an OSHA document, but it outlines the Justice Department’s intentions to seek criminal penalties against company executives for corporate misdeeds. It is listed here because OSHA and EPA regulations fall under this guidance. One point that jumps out from the memo is the section on how investigations should be pursued:
Both criminal and civil attorneys should focus on individual wrongdoing from the very
beginning of any investigation of corporate misconduct…by focusing on individuals from the very beginning of an investigation, we maximize the chances that the final resolution of an investigation uncovering the misconduct will include civil or criminal charges against not just the corporation but against culpable individuals as well.
The message on safety is that, no matter how far the corporate offices are from the job site, no executive should feel that he or she is shielded from the repercussions of an OSHA violation.
OSHA outreach to U.S. and state prosecutors – Individual agencies like OSHA don’t have the power to decide who will be criminally charged and who won’t. That decision rests for the Justice Department at the Federal level or state attorneys generals where state laws may apply. Attorney Howard Mavity of the Fisher & Phillips law firm is a keen observer of OSHA trends. He has written in his blog that the Region IV OSHA Administrator announced that he had met with all of the U.S. attorneys in his region “to encourage increased criminal prosecution related to OSHA violations and fatalities” and that he now plans to meet with state Attorneys General for the same purpose. Why is this important? First because it emphasizes to prosecutors that they have another tool on their Swiss Army Knife of charges they can bring against executives and second because state prosecutors may have a lower bar to successfully bring a case.
OSHA wants to increase penalties – In testimony before Congress this month, OSHA administrator David Michaels made a strong pitch for increasing civil and criminal penalties. Senate bill S. 1112, Protecting America’s Workers Act (PAWA), raises penalties to roughly the same level at EPA penalties. While it may be unlikely to pass the Republican-controlled Congress, Michaels says “OSHA’s current penalties are not strong enough to provide adequate incentives.”
As the Justice Department has made clear, ignorance of the law is not a defense and “Indifference to general safety or to a specific hazard can also be evidence of intentional disregard of or plain indifference to the requirements of the law. ”
In other word, executives cannot turn a blind eye to hazards or safety requirements without putting themselves in