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States ramp up safety prosecutions

States ramp up safety prosecutions

In the absence of stiff criminal penalties for workplace safety violations at the federal level, local prosecutors in the United States are showing signs that they are willing to go after employers who willfully violate standards when violations result in employee fatalities.

David Michaels, who until January 2017 had been the longest-serving assistant secretary of labor for occupational safety and health, recently urged federal legislators to move forward with an effort to stiffen penalties for willful violations of workplace safety standards that result in worker fatalities.

The current criminal sanctions in the Occupational Safety and Health Act are “virtually meaningless” because the maximum penalty for willful violations in cases of workplace fatalities is a misdemeanor, and company employees responsible for maintaining worker safety rarely see jail time, he said.

In the absence of federal action, states have begun to ramp up their efforts to hold employers criminally and civilly responsible for fatal workplace safety accidents.

In January, for example, Washington state’s King County Prosecuting Attorney's Office filed criminal manslaughter charges against the owner of a Seattle-based construction firm — the first time a Washington employer has faced felony charges for a workplace fatality.

The owner of Alki Construction was charged with second-degree manslaughter after a 2016 incident in which a worker was killed when the dirt walls of the trench he was working in collapsed and buried him, the Washington State Department of Labor & Industries said.

That same year, the state cited and fined the company for multiple workplace safety violations, including “willful” violations, according to the department.

“Whenever you have a serious injury or a fatality, there will always be a question about whether this was an accident or was this something that people know about and should this be investigated criminally,” said Lily Chinn, San Francisco-based managing partner with Katten Muchin Rosenman L.L.P. “It’s something that is serious and still being focused on.”

Civil litigation is also on the horizon as a recent California Supreme Court ruling sent the message to employers in the state to pay more attention to workplace safety citations, as the federal government’s position on civil suits following violations won’t protect a company from steeper civil penalties assessed by state officials.

A high court ruling in favor of civil litigation following a workplace safety violation is a first for workers compensation nationwide, legal experts say.

“No other state in the country has this,” said Mike Taylor, McLean, Virginia-based shareholder with firm Greenberg Traurig L.L.P. “It means other states could follow.”

Essentially, California’s highest court on Feb. 8 set the record: a company can face civil penalties despite the fact the federal Occupational Safety and Health Act does not allow for such penalties against employers. The court ruled that the state’s own Occupational Safety and Health law, adopted three years after the federal OSH Act, overrides that federal standard.

“(This) can dramatically increase fines associated with these types of OSHA violations,” said Mandana Massoumi, a Costa Mesa, California-based partner with Manatt, Phelps & Phillips L.L.P., referring to the case that turned heads statewide: Solus Industrial Innovations L.L.C. et al. v. The Superior Court of Orange County.

Solus, a Rancho Santa Margarita, California-based manufacturer of plastics, in 2007 installed an electric water heater that was designed for residential use at one of its facilities, according to court documents that detailed the deaths of two workers in 2009 when that water heater exploded.

The Oakland, California-based California Division of Occupational Safety and Health investigated the incident and “determined the explosion had been caused by a failed safety valve and the lack of ‘any other suitable safety features on the heater’ due to ‘manipulation and misuse,’” court documents state.

While two plant supervisors are facing criminal prosecution, it’s the civil penalties that gained attention, because Solus faces charges that it misled its workers into thinking the company took workplace safety seriously, according to documents.

Because two employees died — and there was evidence of further violations — Cal/ OSHA referred the case to the local district attorney’s office, which agreed that Solus’s practices were “egregious” and proceeded with civil litigation, said Deputy District Attorney Kelly Ernby in Santa Ana, California. Her office sought up to $2,500 per day, per employee, from Nov. 29, 2007, to March 19, 2009.

Legal experts say such costs can add up quickly. “The first practical consequence is this can make violations significantly more costly,” said Mr. Massoumi.

Solus argued that the federal OSH Act pre-empted the state’s take on the civil penalties. The California Supreme Court ruling overturned an earlier decision made by an appellate court and revives an earlier prosecution filed by the District Attorney’s Office, which says it will proceed with its case. Solus officials could not be reached for comment.

The ruling calls for “more scrutiny of citations,” said Mr. Taylor. “Whereas employers in the past have paid the fine and moved on, a prudent employer will have to take a good, hard look at what civil penalties they could face before accepting the citation as written.”

Yet, risk of penalties is “controllable,” said Carla J. Gunnin, Atlanta-based partner with Jackson Lewis P.C. The Solus case had “bad facts” and “two managers who willfully ignored safety issues,” she said.

“If you are an employer who is doing the best, your risk at being caught in something like this is fairly low,” she said.










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