Seyfarth Synopsis: Recent involuntary manslaughter charges against actor Alec Baldwin serve as a reminder of the state criminal manslaughter liability that may result from industrial accidents. Company management and employees involved in an accident face potential criminal prosecution, prison, and hefty personal fines.

The legal fallout from the unfortunate workplace fatality continues. On January 20, 2023, New Mexico state prosecutors announced they were charging actor Alec Baldwin and armorer Hannah Gutierrez-Reed with involuntary manslaughter for the death of cinematographer Halyna Hutchins on the set of the movie “Rust” in October 2021.

Criminal prosecutors can base charges solely on an OSHA citation that alleges: (1) the employer violated a specific applicable standard, (2) the employer did so willfully, and (3) that the violation caused an employee’s death. 29 USC § 666(e). The Department of Labor has entered into a Memorandum of Understanding with the Justice Department for ensuring effective prosecution of criminal workplace incidents. Federal OSHA criminal liability is punishable with six months’ imprisonment, a $500,000 fine to the Company, and a $250,000 personal fine.

With regard to the “Rust” shooting, New Mexico OSHA issued of a “Willful” citation for $136,793.00 for failing to adhere to the film industry’s safety bulletins published by the Industry Wide Labor-Management Safety Committee. The Citation, issued under New Mexico OSHA’s General Duty Clause, is currently under appeal. No criminal charges have been filed based solely on the Citation.

As the “Rust” case illustrates, even if no criminal charges are based on the OSHA citations, state authorities may evaluate criminal charges relating to a workplace fatality. After a fatality is reported, state authorities routinely open concurrent criminal inspections. Many states (here New Mexico) then bring criminal charges of manslaughter against managers and employees involved in an accident.

In the “Rust” case, under New Mexico law, the defendants face charges of involuntary manslaughter committed with a gun, punishable by a mandatory five years in prison. The involuntary manslaughter charges, which involves a killing while a defendant is acting negligently or without caution, mirror the “plain indifference” standard for acting “Willfully” for purposes of an OSHA citation. Special prosecutors on the case were quoted by media outlets as saying that there was a “pattern of criminal disregard for safety,” similarly mirroring the “Willful” standard.

The recent charges should remind employers of the absolute importance of reviewing applicable safety standards, supervising employees exposed to such hazards, and enforcing the employer’s safety rules. The charges also serve as a powerful reminder that every individual in an organization will be viewed as having a responsibility for safety and duty to comply with applicable safety standards.

Employers who have workplace fatalities should engage qualified legal counsel and effectively manage inspections to minimize the probability they get willful citations. OSHA’s employee interviews will be critical and employees must be adequately prepared — OSHA will not inform employees of their Miranda rights and may try to interview employees without management or company counsel present. If the employer receives a willful citation relating to a fatality, the employer should appeal and take all necessary steps to get the willful classification vacated.