Justice Dept. Drops Most Criminal OSHA Referrals

Critics in Congress and elsewhere have been hammering OSHA ever since a recent New York Times article revealed that over the past 20 years, the agency failed to seek criminal prosecution against 93 percent of the companies whose willful violations of safety rules caused workers to die.

Even if OSHA referred more cases to the Department of Justice (DOJ) however, it appears unlikely that many more employers would face the kind of criminal liability that victims' families and OSHA critics believe is a requisite for justice.

Put simply, the vast majority of cases OSHA does refer to DOJ are never prosecuted. While efforts to hold employers criminally responsible for workplace fatalities have targeted OSHA enforcement, it is the Department of Justice that must prosecute employers. This is the first in a series of articles that will examine the factors impeding DOJ from criminal prosecution of OSHA cases.

From 1982 to 2002, the Times reported, 2,197 workers died in 1,242 cases as a result of employers' willful violation of OSHA standards.

According to information supplied by OSHA, during this same 20-year period:

  • OSHA referred 119 of these fatal cases to DOJ for criminal prosecution, but the Justice Dept. "declined" to pursue 57 percent of them;
  • Of the remaining 51 OSHA referrals that DOJ did pursue, 63 percent resulted in pre-trial settlements in which the defendant spent no time in prison;
  • Since 1982, the Justice Department has gone to trial and won convictions in only four cases against employers whose willful violations of OSHA standards caused the death of a worker the last time this happened was 7 years ago;
  • Of the 119 cases OSHA referred to DOJ, nine resulted in prison time for at least one of the defendants; in some cases more than one person went to prison.

"The DOJ is a disgrace," commented Ron Hayes, founder of the FIGHT Project, an organization for family members of workers killed on the job. "They are too willing to drop a case rather than do the work needed to stand up for the American worker."

According to Hayes and other sources familiar with OSHA enforcement, one of the most important explanations for the weakness of the DOJ prosecution effort is that killing a worker due to a willful OSHA violation is only a misdemeanor, not a felony. It is believed that Justice Department prosecutors prefer to devote their limited resources on felony convictions.

Sen. Jon Corzine, D-N.J., has introduced a bill that would boost fines and make it a felony when a worker dies as a result of willful violations of OSHA rules. It is rumored that Republicans are contemplating similar legislation.

A Justice Department official countered that simply making these cases felonies might not lead to many more prosecutions. The problem, according to the official, is that according to the OSH Act, only employers can be charged with a crime. In large companies, the supervisor responsible for violating the OSHA rule is not the employer, while the company's owner the legal employer usually has no knowledge of the OSHA violation, making it almost impossible to prove that the violation was willful.

As a result, DOJ can usually prosecute only small companies where the employer also supervises the work, while large corporations are passed over.

"If you want to increase the number of criminal prosecutions," argued the DOJ official, "you need a 'wrong-doer provision' added to the current law that would allow us to go after the supervisor who committed the willful violation." That, along with increased penalties for willful fatality cases would lead to far more criminal prosecutions than simply making it a felony to kill a worker, the official contended.

Hayes cited a second factor inhibiting criminal prosecutions: OSHA investigators are used to developing civil cases and have no training in how to conduct criminal investigations. This issue, together with how the OSHA-DOJ relationship affects criminal prosecutions of workplace fatalities, will be the subject of the second part of this series.

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