The Occupational Safety and Health Administration (OSHA) can refer cases to the U.S. Justice Department (DOJ) for prosecution if criminal misconduct or criminal negligence played a role in causing a workers’ death. Prosecuting employers for willful violations of safety rules is a strong deterrent for violations of safety requirements and more prosecutions could reduce workplace injuries and workers’ compensation claims.
While strong enforcement of criminal laws could make a major positive impact on worker safety, federal prosecutions rarely occur after workplace safety violations cause fatalities.
Business Insurance reports the Occupational Safety and Health Administration referred only three cases to the DOJ over the course of 2013. The 2013 referral numbers were significantly lower than in prior years. While data is not yet available for 2014 referrals, most experts expect a similar amount of referrals as during the prior year.
OSHA Not Prosecuting as Many Criminal Cases After Workplace Deaths
Some industry experts suggest OSHA is engaging in a deliberate strategy by reducing the number of cases referred to the DOJ. OSHA has limited resources to conduct investigations, and may be repurposing some of its funds to other efforts rather than to managing criminal investigations.
Instead of referring cases to the DOJ to prosecute, OSHA is counting on state and local prosecutors to pick up the slack and prosecute cases. Provisions of the Occupational Safety and Health Act do not prevent local prosecutors from making cases under state laws for negligent homicide or manslaughter. If an employer’s safety violations rise to the level of negligent homicide or involuntary manslaughter, prosecutors may have a greater ability to gather necessary evidence and move forward with imposing criminal penalties than OSHA does.
Not only can prosecutors on the stage level potentially devote more resources to criminal prosecution of grossly negligent employers, but the penalties for conviction of manslaughter or negligent homicide may be far greater than penalties available when prosecutions occur under OSHA on the federal level. Many federal charges under OSHA are misdemeanors, even when employers have created a situation so unsafe death was significantly likely to occur. State prosecutors can bring more severe charges with the potential for lengthier penalties so employers who cause the death of employees will face appropriate consequences in the criminal justice system.
Business Insider points to one case in which two managers of a canned seafood plant were charged by a local prosecutor with three felony counts under the state labor code. The state code makes it a felony offense for an employee with direct managerial control over other workers to violate OSHA rules. The maximum sentence under the state law is three years imprisonment and a fine of $250,000 for the willful OSHA violation.
Although prosecutors may be effective in bringing charges against employers, the problem is prosecutors have limited resources too. OSHA’s job is to protect employees and by abdicating its responsibility to pursue criminal investigations in cases of fatal negligence, the agency is creating a situation where laws will be inconsistently enforced depending upon the budgets and whims of local authorities. This can undermine overall effectiveness of workplace safety rules.