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OSHA Criminal Referrals Reach 14-Year High

Amid increasing signs that OSHA is ramping up enforcement against what it considers "bad actors," the agency referred a total of 18 cases to the Department of Justice (DOJ) for criminal prosecution during 2003 and 2004, a level not seen since 1990-1991.

A 2-year period is more indicative of trends in OSHA's criminal referral record, because the number often fluctuates greatly from year to year.

The agency also recently released and posted on its Web site a new compliance directive for OSHA officials engaged in fatality and catastrophic investigations (Instruction CPL 02-00-137).

The new instruction replaces a previous document issued in March 2003, contains a number of what it calls "significant changes," and states that, "the agency places a very high priority on fatality and catastrophe investigations, which demand a high degree of sensitivity and investigative accuracy." OSHA defines a catastrophe as a work-related event that sends at least three employees to the hospital.

Although the numbers of criminal referrals is up, it is too soon to tell whether the increase will lead to more convictions. So far, DOJ has handed down indictments in one of the 18 cases and decided not to prosecute eight others; no decision has yet been made on the remaining nine cases, according to information supplied by OSHA. In previous years, DOJ has typically declined to prosecute almost half the cases referred to it by OSHA.

The OSH Act provides criminal penalties for an employer who is convicted of having willfully violated an OSHA standard, rule or order when the violation results in the death of an employee.

While the outcomes of the new referrals are not yet clear, the new enforcement instruction contains other signs that OSHA is attempting to improve the way it handles cases in which the employer may be criminally responsible.

The instruction confirms comments made by Solicitor of Labor Howard Radzely at the American Bar Association's OSHA committee meeting in March that the Department of Labor is going beyond the OSH Act -- and increasingly cooperating with EPA's more robust enforcement program -- to mount criminal prosecutions against employers.

For example, the new OSHA document states that employers may face prosecution for a number of other sections of the United States Code, including, but not limited to:

  • Crimes and Criminal Procedures, for actions such as conspiracy, making false statements, fraud, obstruction of justice, and destruction, alteration or falsification of records during a federal investigation;
  • The Clean Water Act;
  • The Clean Air Act;
  • The Resource Recovery and Conservation Act;
  • The Comprehensive Environmental Response, Compensation, and Liability Act.

Expanding the number of statutes used in criminal cases may increase not only the number, but also the severity, of OSHA criminal prosecutions. Under the OSH Act, when a worker is killed, employers can only be charged with a misdemeanor, but violating environmental and fraud laws can lead to felony convictions.

The new compliance guidance also identifies the following significant changes from past practice with respect to fatality/catastrophe investigations:

  • Appropriate training for OSHA personnel is identified;
  • Specific witness interview procedures are presented;
  • Additional information on recording fatality-related data and tracking investigations is provided;
  • Provisions regarding fatality/catastrophe investigations and their relationship with other OSHA programs have been added;
  • Questions concerning OSHA's jurisdiction are addressed.
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