Editor’s Note – Mark A. Lies II is a labor and employment lawyer and partner with the Chicago, IL, law firm of Seyfarth Shaw, LLP. Meagan Newman is an associate with Seyfarth Shaw whose practice focuses on environmental and occupational safety, and health law and related litigation. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
It is no secret that under the Obama Administration businesses can expect to face increased Occupational Safety and Health Administration (OSHA) inspections, resulting in more citations and increased penalties. Businesses should also be aware that heightened enforcement of workplace safety regulations could result in penalties that reach beyond company monetary liability. Criminal sanctions for violations of OSHA standards are not new, however, referrals for prosecution of businesses and individuals where OSHA deems the violation to be willful are expected to rise in the coming years. This article revisits some recent workplace safety cases that led to criminal charges and discusses the steps that companies, safety managers, and supervisors should take to reduce the likelihood of criminal sanctions for workplace safety violations.
Construction Supervisors Indicted Following Firefighter Deaths
In August 2007, a fire at the former Deutsche Bank building in Manhattan caused the deaths of two New York City firefighters. The building had been badly damaged on September 11, 2001, and it was in the process of being taken down. Prior to the fire a pipe connection to the building fire water standpipe system in the basement had been cut to facilitate the demolition work. The firefighters responding to the fire were told that the standpipe was working and they pumped hundreds of gallons into the pipe, mistakenly believing that the water was reaching the upper floors. Additionally, asbestos contractors were supposed to build plywood walls around the stairwells to contain asbestos dust. Instead the contractors apparently sealed off the stairwells completely causing the firefighters’ access to be blocked.
The investigation following the fire revealed numerous previous unreported fires and other safety issues at the building during demolition. OSHA cited the general contractor and the asbestos subcontractor for numerous violations related to fire safety, access, fall hazards, and electrical safety. The general contractor was cited for 19 violations, including two willful citations resulting in $193,000 in proposed penalties. The subcontractor was cited for 25 violations, including three willful citations resulting in $271,500.
The incident also led to state criminal charges. The subcontractor, its abatement director, and its foreman were charged with manslaughter, criminally negligent homicide, and reckless endangerment. The site safety manager for the general contractor was also charged with manslaughter, criminally negligent homicide, reckless endangerment, and other charges related to false paperwork regarding the disconnected standpipe. While the general contractor was not charged criminally, they agreed to fund an independent monitor, approved by the district attorney, to oversee safety and subcontractor hiring procedures.
Homicide Charges Follow Crane Collapse
Following a March 2008 crane collapse in New York City that led to the deaths of the crane operator, five crew members, and an occupant of an adjacent building, the crane company and its owner faced numerous OSHA citations as well as criminal charges.
According to the post accident investigation, Rapetti Rigging Services, Inc., was hired to erect a tower crane at a high-rise construction site. William Rapetti was supervising a rigging crew in “jumping” the crane on the 18th floor. During this process, polyester straps that were being used as temporary slings snapped and the steel collar slid down. This ultimately led to the crane collapsing against the roof of an apartment building across the street. The top of the crane, including the cap, was sent flying over the apartment building and landed on a townhouse. The crane’s operator, five members of the rigging crew, and an occupant of the townhouse were killed.
The regulatory investigation revealed that the slings that snapped had substantial pre-existing damage that should have been discovered during an inspection prior to their use. Furthermore, the slings had been tied, without padding, around sharp metal edges of the crane tower exposing the slings to damage. The investigation following the accident also revealed that the manufacturer’s specifications were not followed in that eight slings should have been used, while only four were used at the time of the collapse.
OSHA issued multiple citations to Rapetti Rigging Services for failure to comply with the manufacturer’s recommendations for mounting the sling, totaling $220,000 in proposed penalties. In addition, William Rapetti and Rapetti Rigging Services were charged with manslaughter, criminally negligent homicide, assault, and reckless endangerment.
Falsification of Records Leads to Large Fines
Early this year, Stone and Webster Construction, Inc., a contractor for the Tennessee Valley Authority, paid $6.2 million to settle charges related to falsified safety records. The attorney prosecuting the case claimed that Stone and Webster failed to maintain required safety logs and gave false information about employee injuries.
Stone and Webster’s contract gave them a bonus for meeting employee safety goals. The prosecutor alleged they falsified the records in order to receive money under this bonus program. Between 2003 and 2006, it is alleged that they provided false information that underestimated the number and severity of employee injuries.
It is imperative that safety profes-sionals and managers understand that they are potentially at risk for criminal charges for safety violations – especially when those violations cause death or serious injury. Currently, OSHA laws allows for criminal prosecution for willful violations that lead to the death of any employee. The offense is classified as a misdemeanor and is punishable by up to six months in prison and a fine of up to $250,000 for individuals and $500,000 for organizations.
The Protecting America’s Workers Act, which was introduced by Senator Ted Kennedy, is expected to be considered for passage by Congress in the coming year. This act increases the potential criminal penalties for OSHA violations and will broaden the scope to include willful and repeat citations that lead to serious injury or death. Currently, the OSHA Act allows for criminal penalties only where a willful violation leads to the death of an employee; the Protecting America’s Workers Act as currently proposed expands the scope of criminal liability to include repeat as well as willful violations that not only lead to death, but also to serious injury, which would include amputations, disfigurement, or brain injuries. Additionally, these criminal sanctions can be applied to the company as well as individual managers, supervisors, and employees.
Even now, absent a willful citation from OSHA, or an injury that causes death, criminal sanctions are currently available under various state criminal codes. For companies and professionals it is especially critical that means of ingress and egress are maintained at all times on the jobsite.
False statements to OSHA are also punishable as a misdemeanor under current law and can also be a felony under federal law as obstruction of justice. This includes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under OSHA. The offense is punishable by up to six months in jail and fines of up to $250,000 for individuals and $500,000 for organizations.
In order to avoid potential criminal liability, employers and managers are encouraged to consider the following actions.
Confirm that job hazard analyses (JHA) or similar hazard assessments are conducted for all expected work activities to identify hazards and develop a corresponding safety and health procedure or practice.
Confirm that an emergency action plan is in place to protect employees against the hazard of fire and conduct drills with local fire responders to ensure that all fire protection equipment is functional.
Confirm that all manufacturers’ safety recommendations are incorporated in the JHAs to ensure that they are followed for use of equipment.
Conduct periodic audits of all records, such as training records and certifications that are required to be kept by regulatory agencies, including OSHA, to determine that the recordkeeping is being maintained in accordance with such regulations.
Discipline any employee who fails to comply with any aspect of their involvement in the foregoing activities.
Document the employer’s actions to conduct the foregoing actions, including its corrective actions taken when non-compliance is identified.
If the foregoing actions are taken, the employer and managers can demonstrate that they are making a “good faith effort” to comply with these legal obligations, which will thoroughly undercut any claim by a prosecutor that there was any criminal intent by the employer or a manager to intentionally or willfully violate any regulations or expose an employee to the hazard of serious injury or death.
The cases discussed above represent a consistent pattern of conduct that will likely lead to criminal charges. In instances where recognized safety standards are ignored, manufacturers’ specifications are not followed, or false records or statements are provided to investigators, criminal sanctions are likely. An era of increased enforcement and heightened civil and criminal penalties is upon us. Every business owner and manager needs to be aware of their safety obligations and ensure that operations are in compliance. If someone is injured or killed on your site, the penalty you face could be more than money – it could be jail time.
Labor and the Law – April 2009 RENDER | back