In the June OSHA 30/30 program, Keller and Heckman partner David Sarvadi and associate Javaneh Nekoomaram discussed recent federal and state criminal prosecutions of Occupational Safety and Health (OSH) Act violations. While Congress enacted the OSH Act as primarily a civil statute that assigns monetary penalties for violations, the Act does have criminal provisions for egregious violations. Section 17 of the OSH Act prescribes for criminal misdemeanor penalties for 1) providing advance notice of an OSHA inspection, 2) knowingly making false statements to OSHA, and 3) willfully violating an OSHA standard, rule, order or regulation and that violation causes the death of an employee. A willful violation is a violation that is made intentionally, knowingly or with voluntary disregard for the law, or with plain indifference to employee safety. The Act also provides for felony penalties for the murder of an OSHA inspector while doing an investigation or inspection, or performing a law enforcement function.
In addition to the OSH Act, states may prosecute employers for violating OSHA standards because the OSH Act does not preempt such state criminal enforcement. State prosecutors can prosecute employers under state statutes for reckless endangerment, manslaughter, criminally negligent homicide, assault, and other similar criminal statutes for OSH Act violations that result in the death or serious injury of an employee.
Finally, other federal statutes may be used by federal prosecutors to address OSH Act related violations. For example, federal perjury and false statement laws provide for felony penalties for individuals who knowingly and willfully make false statements to OSHA investigative or inspection personnel. Employers should know about these criminal penalties and be aware that following the death of an employee, OSHA inspectors have the power to look for possible criminal violations, as well as other Title 18 or environmental violations.