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SAFE PRACTICE Criminal Prosecution and the Recent OSHA Memo DARREN J. HUNTER, ROONEY, RIPPIE & RATNASWAMY LLP, CHICAGO O


n December 17, 2015, the U.S. Department of Labor (DOL) and the Department of Justice


(DOJ) entered into a memorandum of understanding that gives the Oc- cupational Safety and Health Admin- istration (OSHA) significantly more incentive to refer certain violations of the Occupational Safety and Health Act (OSH Act) for criminal enforce- ment. Te criminal liability provision of the OSH Act is limited in scope and has little bite. As a result, OSHA has not referred many matters to DOJ for criminal enforcement since the OSH Act went into effect in 1970. Tat is about to change. On March 8, DOJ an- nounced a ferrous and non- ferrous scrap processor pled guilty to a criminal violation of the OSH Act related to an incident resulting in the death of an employee. The employer admitted it failed to provide lockout/tagout and confined space protection as required by OSHA’s regulations. The em- ployer further admitted those violations caused the death of the employee who became caught in an unguarded con- veyor. The employer is subject to the maximum sentence of five years’ probation, a $500,000 criminal fine and restitution to the victim’s family, determined at a sentencing hearing in July. Over the last few years, a handful of high-profile cases have resulted in criminal liability. In 2013, for example, a safety manager was sentenced to six- and-a-half years in prison after being found guilty of providing false and misleading information about injuries and underreporting the number and severity of injuries at three nuclear facilities. Te safety manager’s bonus was tied to injury and illness rates, giving him an economic incentive to underreport. Going forward, virtually every will- ful violation of the OSH Act resulting


in the death of an employee will result in a criminal referral to DOJ. Tis doesn’t mean DOJ will prosecute every case, but DOJ will prosecute signifi- cantly more cases based on violations of the OSH Act. Under the OSH Act, OSHA may


refer the following types of cases to DOJ for criminal enforcement: • Any employer who commits a willful violation of the OSH Act, which causes the death of an employee.


• Any person who gives advance notice of any inspection to be conducted under the OSH Act, without author- ity from OSHA.


even more. In it, DOJ emphasized its commitment to pursue criminal pros- ecutions under the OSH Act. DOJ noted the criminal liability provision in the OSH Act is not sufficiently meaningful, but it can make criminal enforcement more meaningful by bringing charges for other serious offenses that may occur in associa- tion with OSH Act violations, such as obstruction of justice, false statements, witness tampering, conspiracy and en- vironmental and endangerment crimes. Tese types of offenses are felonies and carry much more substantial penalties and terms of imprisonment. What is behind the


“Virtually every willful violation of the OSH Act resulting in the death of an employee will result in a criminal referral, meaning significantly more cases will be prosecuted.”


• Any person who knowingly makes any false statement, representation, or certification in any application, record, report, plan or other docu- ment filed or required to be main- tained pursuant to the OSH Act. Notably, under the Sentencing Re-


form Act of 1984, Congress substan- tially increased criminal penalties for willful OSHA violations resulting in the death of an employee to $250,000 for individuals and $500,000 for orga- nizations. Because the OSH Act still references criminal penalties of only $10,000, many employers are not aware that their potential criminal exposure is significantly greater by virtue of the Sentencing Reform Act. Te memorandum of understanding between DOL and DOJ ups the stakes


memorandum of un- derstanding, and why is there a greater focus on criminal enforcement? Bluntly stated, OSHA has expressed its concern publicly that civil and criminal penalties do not have sufficient bite to force employers to comply with health and safety standard. As a result, certain employ- ers do not take compliance with the appropriate degree of seriousness. To add more teeth to its enforcement


authority, DOL has reached an un- derstanding with DOJ to coordinate and cooperate with one another in criminal enforcement matters. While the criminal liability provision in the OSH Act focuses on enforcement against the employer rather than an individual, DOJ will consider related crimes against individuals, such as fal- sification and tampering. A concerted effort will be made to prosecute the employer for criminal violations and individuals, such as plant managers, safety managers and other people who serve in a supervisory capac- ity, for related crimes. Individual employees also may be targets for criminal prosecution.


Contact the author at darren.hunter@r3law.com, www.r3law.com.


April 2016 MODERN CASTING | 41


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