Seyfarth Synopsis: A construction contractor twice orders, via text message, his employees to work on a roof, and both times the employees fall through. The contractor later testifies in a deposition that he did not ask them to work on the roof. Lesson No. 1: don’t lie when you’re providing sworn testimony, especially when there exists discoverable evidence to the contrary. Lesson No. 2: be properly prepared and familiar with all relevant facts before providing testimony or statements during an investigation.

Between May and July 2018, New Jersey-based RSR Home Construction was cited twice by OSHA after two incidents on the same job in which workers fell from a roof and were seriously injured. As part of its investigation into the safety incidents, OSHA took the sworn deposition of the company’s owner, Robert Riley.

According to the criminal complaint filed against RSR earlier this month in Federal District Court in New Jersey, OSHA specifically questioned Riley at his deposition about whether he had directed a construction worker, at any time, to perform repairs on the roof, or to direct others to perform repairs to the roof. United States v. Riley, No. 19-MJ-3515 (D.N.J. Feb. 14, 2019). Riley testified, unequivocally, that that he had not.

OSHA, however, discovered that Riley had in fact sent text messages to employees on both occasions directing them or others to perform repairs on the roof. Riley now faces a perjury charge in federal court where, if convicted, he faces a potential penalty of five years in a prison and a $250,000 fine.

For employers, this case provides yet another reminder that it is never a good idea to lie to government inspectors, especially when providing sworn testimony. This also demonstrates the importance of being properly prepared and familiar with all relevant facts before providing testimony or statements during an OSHA investigation. In this age of electronic media, emails, video, and text messages, data is simply too readily available to those parties needing it to prove the truth.