Worker Advocates Urge Feds, States To Ramp Up Criminal Prosecutions In Severe Safety, Health Cases

But legal experts say it would be difficult, at least at the federal level, for government attorneys to bring criminal cases under such circumstances while OSHA is simultaneously in talks with the employer or has already reached a settlement agreement that reduces violations, for example from “willful” to “serious.”

The National Council for Occupational Safety and Health (National COSH) released a report, “Not an Accident: Preventable Deaths 2015,” containing policy recommendations for federal and state officials to bring criminal charges where they believe warranted if an employer is alleged to have knowingly broken occupational safety and health laws. At the same time the advocacy group announced a new national database of fatal occupational injuries with detailed information culled from a variety of sources on what occurred in each instance. Initially the database will cover about one-third of all workplace fatalities in a given year.

National COSH argues that more must be done on the criminal prosecution side because OSHA civil penalties are too low and only viewed by many employers as a cost of doing business. Mary Vogel, the organization’s executive director, noted in a conference call Thursday that the median OSHA fine, after the agency pursues cases involving fatalities, ends up at $5,600 — an amount one advocate described as less than the cost of a used car. “Clearly those fines are not a deterrent or impediment to employers,” Vogel said.

“Under the OSH Act, even criminally negligent behavior by employers can only result in a misdemeanor prosecution,” states the advocacy group’s policy platform, issued ahead of Workers Memorial Day. “Penalties and administrative procedures must be strengthened to ensure that employers are adequately penalized for putting workers in harm’s way.”

“State and federal prosecutors should aggressively pursue criminal indictments when evidence shows willful intent by employers whose actions — or inaction — caused death or serious injury to workers,” the platform says. “State legislatures and the U.S. Congress should create a legal framework to hold corporations and executives accountable for criminal violations of health and safety laws, and eliminate barriers to successful prosecutions.”

Safety and health activists have long sought tougher penalties and a stronger criminal prosecution structure under the OSH Act as part of comprehensive OSHA reform, but in the absence of congressional action are directly asking federal and state attorneys to independently pursue criminal cases where they find such action warranted.

Bringing criminal prosecution need not depend necessarily on OSHA pressing a “willful” violation, though that strengthens a case significantly, Vogel said in the conference call. Sometimes OSHA will agree to reduce alleged violations from “willful” to “serious” in the course of talks with the employer, as occurred recently with settlement of the OSHA citations against the Williams Companies, where a deadly explosion occurred at a Geismar, LA, olefins plant (see related story). A Williams spokesman recently told Inside OSHA Online that the company “cooperated in a full and transparent manner with the investigation” by OSHA and settled citations stemming from two incidents in 2013. “These settlement agreements with OSHA bring closure to this phase of our post-incident recovery, and we continue to work diligently to further enhance safety at the Geismar plant and across our entire organization.”

Vogel said National COSH is actively working with local district attorneys and other prosecutors, urging them to bring whatever criminal charges are appropriate in OSHA cases. “It’s the employer’s responsibility to provide a safe and healthful workplace.”

Advocates pointed to two recent cases in which prosecutors brought charges, most notably the criminal indictment of Don Blankenship, former CEO of Massey Energy, which oversaw work in West Virginia’s Upper Big Branch mine where 29 miners died in a 2010 explosion. Blankenship’s trial is this summer. Also National COSH pointed to the charges against the film director in Georgia overseeing the set where a camera assistant was killed by an oncoming train last year. Advocates say, however, that such cases are far from the norm even in egregious circumstances.

OSHA actions to settle cases and reduce penalties complicate any potential criminal enforcement, an industry legal source tells Inside OSHA Online. The concept would be bringing a charge independent of the OSHA action, and “an element of proof in that separate case would be that the employer willfully violated an OSHA standard and that violation directly caused a worker fatality,” says Eric Conn, OSHA chair at the workplace safety group of Conn Maciel Carey.

Even if OSHA reduced citations “a prosecutor could decide to bring a charge and separately attempt to prove willfulness in that criminal proceeding. Practically speaking that scenario is very unlikely, because the Justice Department pursues these cases on referral from the Department of Labor.” It would be unlikely for OSHA to pursue a civil settlement while simultaneously referring the same case to federal prosecutors, he notes.

Also, Conn says, “almost universally, civil OSHA cases are stayed if the Department of Justice is even exploring the possibility of bringing a criminal charge.”

However, there have been and there continue to be state criminal prosecutions that have proceeded out of an incident and an OSHA enforcement action, but which are not tied to OSHA’s civil case, he notes. Those are generally brought under state criminal statutes, like negligent homicide. “In my experience, federal OSHA would not engage in settlement discussions if the Department of Justice was even exploring the possibility of bringing a criminal charge,” Conn says. “There’s an openness in settlement discussions that is anathema to being a potential criminal target.”

More aggressive pursuit of criminal cases is only one of many recommendations in the National COSH policy platform, including:

• “Federal OSHA and worker advocates should hold state OSHA programs to strict standards to ensure that their enforcement efforts are at least as effective as federal OSHA, as required by the federal OSH Act. Many of these programs have failed to live up to this promise and must be held accountable.”
• “OSHA must take action to ensure that workers who speak up for job safety and health are protected from retaliation. State legislatures should also pass strong whistleblower laws that provide additional protections for workers.”
• “A proposed rule on limiting worker exposure to deadly silica dust has languished for years in the standard -setting process. This standard should be adopted to ensure that no more workers die of silica-related disease.” (See related coverage.)
• “Advance legislation to establish a comprehensive chemicals policy grounded in the fundamental principles of precaution, substituting safer alternatives and right-to-know.”
• “The U.S. Department of Labor should compile a complete listing of workplace fatality cases, with all relevant information, including names of workers on a publicly available website.”
• “Workplace Violence Prevention Programs should be required in every worksite, including written protocols, training and protections to safeguard against, prepare for and reduce the risk of workplace violence.”
• “Federal agencies and state and local governments should adopt policies for the awarding of contracts for public works projects to ensure that only responsible employers with effective safety and health programs are awarded contracts.”
• “The U.S. Workers’ Compensation system must return to its original mission: providing medical care and income support to workers injured on the job. … A state-by-state and national policy framework is required to insure prompt and certain payment to injured workers and their families. Decisions about medical care must be determined by workers and their health care providers, without interference from employers or insurance companies.”
• “The Centers for Disease Control [and Prevention] (CDC) must incorporate occupational health and safety issues in its assessment of potential burdens of disease and other outcomes resulting from the impacts of short and long-range climate projections.”

National COSH further advises that policymakers address ergonomic concerns in health care, saying a major source of injury to health and personal care workers is musculoskeletal disorders. The group urges “patient handling with safer methods using equipment to lift, transfer and reposition health care patients and residents.” — Christopher Cole ()