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Despite the receding threat of federal prosecution, officers and managers of companies that suffer workplace fatalities still face the prospect of criminal charges as state and local prosecutors look to enhance their oversight of worker safety.
While the data regarding the number of cases referred to the U.S. Justice Department by the Occupational Safety and Health Administration in 2014 has yet to be released, many believe the results will closely resemble those of 2013, which saw only three criminal referrals, a sharp decline from previous years.
Valerie Butera, Washington-based member in the labor employment group at Epstein Becker & Green P.C., said the slowdown in referrals may be part of a deliberate strategy by OSHA to shift criminal enforcement to the states.
“It seems that OSHA has been relying on the fact that the Occupational Safety and Health Act doesn't prevent local prosecutors from prosecuting for manslaughter and negligent homicide under state laws,” Ms. Butera said. “So, it appears that OSHA is redistributing it funds, which are admittedly limited, to other initiatives and relying upon the localities for criminal prosecution.”
Indeed, the disparity under state and federal law regarding the severity of punishment achievable for employers convicted of endangering employers may lessen federal resolve to pursue prosecutions, said Edwin G. Foulke Jr., Atlanta-based partner at Fisher & Phillips L.L.P. and former assistant secretary of labor for occupational safety and health, noting that many federal charges against employers are classified as misdemeanors under the Occupational Safety and Health Act.
“OSHA just doesn't do that many criminal referrals to the Justice Department, because the Justice Department is not overly interested in them,” he said. “So you are seeing more charges brought at the local and state levels, especially when there are fatalities.”
An example of this local prosecutorial vigor occurred in April, when Los Angeles County District Attorney Jackie Lacey announced felony charges against two managers from San Diego-based canned seafood manufacturer Bumble Bee Foods L.L.C.
In addition to civil charges against the company, Bumble Bee's former safety manager, Saul Florez, and the company's director of plant operations, Angel Rodriguez, were each charged with three felony counts of an OSHA violation causing death. The charges, which carry a maximum sentence of three years in state prison and/or a $250,000 fine, stem from a 2012 accident that occurred when employee Jose Melena was burned to death after he became trapped inside a 35-foot-long industrial oven at the company's plant in Santa Fe Springs, California.
Hoon Chun, assistant head deputy of Consumer Protection for the Los Angeles County district attorney's office, noted that the California labor code makes it a felony for any employee that has “direction, management or control” over other employees to willfully violate OSHA safety rules. In more egregious cases, the law provides for additional liability under traditional manslaughter and homicide statutes, he said.
Mr. Chun said that while he was unable to discuss the specifics of the Bumble Bee case, it was indicative of a broader effort by Ms. Lacey to prosecute violators of workplace safety laws.
“What's occurring right now is that this district attorney has shown a very strong interest in enforcing safety laws,” he said. “She has put resources and effort into it and is very consciously sending a message to businesses that break worker safety rules.”
Woody Hill, Austin, Texas-based vice president of safety services at workers compensation insurer Texas Mutual Insurance Co., said the issue of the potential criminal liability is on the minds of the safety professionals he interacts with.
“I've talked more about this in the last six months than I have in most of my career,” he said.
Mr. Hill said safety managers could do much to mitigate the risk of both employee death and potential criminal liability by stressing training and performing a job hazard analysis on every operation they have with every employee.
“When we do a root cause analysis of a workplace loss or fatality, we see two key factors keep coming up,” he said. “One is that the injured person was not trained and oriented to the particular exposures of their job. The other is that they were trained in a language other than their primary language, even though OSHA mandates that workers are trained in a language they understand.”
Ms. Butera agreed that proper training is essential, and said the trend of local prosecutors filing criminal cases against employers for workplace fatalities is likely to continue.
“The states are not reluctant to pursue these cases,” she said. “The fact that federal OSHA is not sending over as many cases as it used to is no excuse for companies to let their guard down.”
Bradford Hammock, Reston, Virginia-based attorney with Jackson Lewis P.C., said the lack of federal prosecutions was no cause for complacency for companies when it comes to worker safety.
“I don't think any employer should take comfort in the fact that OSHA doesn't use the criminal prosecution option very often,” Mr. Hammock said. “OSHA is being very aggressive on the civil side, in respect to their enforcement actions and violations that they are issuing. The reality is that employers have to be very vigilant.”