Facing time: Will criminal prosecutions under the OSH Act become more common?

When a roofer at a Philadelphia construction site fell to his death in 2013, his employer did everything possible ... to avoid responsibility.

First and foremost, the employer – roofing company owner James J. McCullagh – failed to provide his workers with fall protection equipment.

He also lied about it. When questioned by OSHA investigators, McCullagh lied on four occasions, claiming he had provided employees with the appropriate safety gear. He told compliance officers he had seen his employees prior to the fatal fall wearing safety harnesses that were tied off to an anchor point. He also tried to convince his other workers to tell OSHA that they wore fall protection on the day of the incident.

McCullagh was indicted for lying, obstruction of justice and willfully violating an OSHA standard. Facing a maximum sentence of 25 years in prison, he pleaded guilty in December and was sentenced to 10 months.

Convictions for crimes related to OSHA violations are rare. But McCullagh is one of a slowly growing number of employers who have been prosecuted for breaking laws in association with the federal Occupational Safety and Health Act.

A recent agreement between OSHA and prosecutors makes criminal indictments more likely to occur, giving hope to stakeholders who believe the threat of these types of penalties will lead to safer conditions for workers.

Simple cases

In previous years, it was difficult to bring OSHA violations before the criminal courts. The cases were considered too simple and didn’t yield penalties high enough to be worth prosecutors’ time, according to Robert Anello, a partner at Morvillo Abramowitz Grand Iason & Anello, a New York-based law firm that specializes in white-collar defense work.

The highest criminal category that can be pursued against employers for OSHA violations is a misdemeanor. As a result, employers convicted in a criminal court of violating OSHA law can receive a maximum of six months in jail even in the most egregious of cases. In contrast, felony convictions can lead to sentences of years or even decades behind bars.

“Federal prosecutors have totally no interest in bringing misdemeanor cases,” Anello said. “To them, a misdemeanor is a non-prosecution.”

This often left OSHA investigators struggling to find prosecutors willing to take on misdemeanor cases. Since the OSH Act was passed in 1970, only 88 cases have been prosecuted, resulting in convictions totaling only 100 months of jail time, according to the AFL-CIO’s annual “Death on the Job” report.

“It’s just terrible,” said Barbara Rahke, board chair at the National Council for Occupational Safety and Health and executive director of the Philadelphia Project on Occupational Safety and Health. National COSH is a federation of local and statewide groups advocating worker safety and health, and PhilaPOSH was one of a handful of local COSH groups that formed a committee to examine certain fatal workplace incidents and push for more criminal prosecutions.

Although OSHA is set – through a provision in the congressional budget deal signed in November – to increase its penalties by nearly 80 percent to account for the past 25 years of inflation, Rahke claims the move isn’t enough to change behaviors. As many OSHA-watchers note, more than 4,000 people still die every year on the job and thousands more are injured even though employers face the threat of being fined and cited.

“Higher penalties don’t mean much when you have a lot of insurance,” Rahke said. “Sitting in a jail cell feels a lot different.”

The government appears to share that viewpoint.

A new agreement

The Department of Justice has worked with OSHA to prosecute employers who violate safety laws – with meager results. In recent years, however, a grassroots effort has been evolving in which a handful of criminal cases have been brought forward.

At the close of 2015, DOJ and the Department of Labor formalized the partnership by entering into a new agreement that more effectively pools their resources to prosecute individuals who willfully disregard labor and environmental statutes.

Recognizing the limited penalties related to OSHA violations, DOJ moved OSH Act criminal prosecutions under the purview of the Environment and Natural Resources Division’s Environmental Crimes Section. This move stems from the belief that employers who fail to take care of workers are likely violating environmental or other related laws, according to John Cruden, assistant attorney general for DOJ’s Environment and Natural Resources Division.

“We are aligning environment, health and safety so we can look across the entire horizon for the reasons for injuries, and use our resources to combat that and make that a high priority,” Cruden said during a Dec. 17 press conference announcing the agreement. “This matters, and individuals who violate the law will suffer the consequences.”

Instead of simply investigating and prosecuting an employer for violating a section of OSHA’s Process Safety Management Standard, for example, DOJ will look at prosecuting that employer for any violations of environmental regulations. The violations under two separate statutes would be prosecuted jointly, leading to the possibility of a heftier penalty if the employer is convicted.

By moving OSH Act criminal cases under the Environmental Crimes Section, DOJ is giving OSHA a single place for pursuing prosecutions and providing local (and often overburdened) U.S. attorneys manpower to move forward on cases, said ECS Chief Deborah Harris. ECS also will handle violations under the Federal Mine Safety and Health Act.

In a memorandum sent to all 93 U.S. attorneys, prosecutors were encouraged to work with their local ECS coordinator to increase the frequency and effectiveness of criminal prosecutions for worker safety violations. Specifically, prosecutors were asked to consider charging individuals under Title 18 and environmental offenses as a means to enhance penalties for worker safety crimes. Title 18 includes conspiracy and false statements, and both Title 18 and environmental crimes have penalties ranging from five to 20 years in prison.

Government officials involved in the agreement are optimistic that employers who willfully violate safety rules will be held more accountable, and the increased penalties will deter other employers from violating the law. “Strong criminal sanctions are a powerful tool to ensure employers comply with the law and protect the lives, limbs and lungs of our nation’s workers,” OSHA administrator David Michaels told reporters at the Dec. 17 press conference. “The prospect of jail time will stop some low-road employers from endangering the lives of their employees.”

Employers and company owners may not be the only ones held accountable. Harris said investigators will look beyond prosecuting corporate officers to consider all players whose choices influence workplace safety, including those at the managerial or supervisory level. “Those are the people we will be looking at – the ones making the decisions that lead to the deaths of others,” she said.

In practice

Will this new agreement work? Michaels thinks so, stating that he has already seen a difference and anticipates more cases moving forward. Anello believes prosecutors are likely to review workplace safety cases with more enthusiasm, as the agreement provides a way to turn those cases into more meaningful prosecutions.

The departments have not set a benchmark or goals for the number of prosecutions they would like to see brought forth, but Cruden said several investigations were in progress at press time and agencies would announce actions as they were taken.

Some stakeholders believe the agreement has the potential to create more productive investigations. According to Peg Seminario, director of safety and health at the AFL-CIO, the new agreement will facilitate closer relationships between the two agencies, better coordination, and better focus for investigating and prosecuting worker safety cases.

“What it does do is send a message that workplace safety violations are going to be looked at in a serious manner by the Department of Justice, which they really haven’t before,” Seminario said.

Investigators may now conduct a more thorough review of cases previously considered only regulatory or misdemeanor to find that felony charges apply, said Anello, who considers this a good thing for worker safety because it could mean more “bad actors” being caught.

However, he urged officials to take care when choosing to prosecute employers. He pointed to the case involving Don Blankenship, who was the chairman and CEO of Massey Energy in 2010 when an explosion killed 29 miners at the company’s Upper Big Branch coal mine in West Virginia. The now-retired company head was criminally charged in connection with the tragedy.

Although he was convicted in December of conspiring to commit mine safety violations, the conviction resulted in a one-year prison term. Blankenship was acquitted on other charges that could have brought close to 30 years of imprisonment. This suggests to Anello that prosecutors may have been reaching too far to bring stronger felony charges during an emotional case.

Not all employers should be criminally prosecuted for an on-the-job injury or death, he added, warning that some U.S. attorneys may feel pressure to bring charges against someone based only on the scope of the tragedy. “You can’t get caught up in the hysteria of the moment,” Anello said.

Seminario cited the Blankenship example to bring up a different point: Although the new agreement will assist in more criminal prosecutions for OSHA violations, it’s not a solution to the problem of weak penalties under the law.

“Is it adequate? No. There’s still underlying problems in OSHA and MSHA laws, as we saw from the Don Blankenship conviction,” Seminario said. “If you read the complaint and what he’s convicted of, it’s the most serious charges. But the penalties attached to them are woefully inadequate.”

Just the beginning?

The agreement between DOJ and DOL doesn’t change the law to turn OSHA misdemeanors into felonies, and it applies only to employers who violate OSHA and non-OSHA laws. An employer who violates a workplace safety standard but didn’t lie, coerce other workers, falsify documents, or break environmental or other related laws could not be prosecuted for more than the maximum the OSH Act allows.

This has led many worker safety advocates to push for legislative reform, as only Congress can strengthen OSHA penalties. “We still need OSHA reform. We still need the Protecting America’s Workers Act,” Rahke said, referring to the Democrat-supported legislation that would, among other things, turn certain OSHA violations into felonies. “Nothing is a substitute for bringing the law up to what it should be.”

As many observers have noted, however, such change is unlikely under the current partisan climate on Capitol Hill. In the meantime, OSHA and DOJ will work to make better use of the resources and tools available to indict and convict more employers who willfully violate safety laws. According to Cruden, this should send a message.

“We hope the community of companies sees this as a real significant action and a real significant reason to protect their workers,” he said.