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Agreement With U.S. Department of Justice Gives Bite to OSHA’s Bark in Criminal Cases

Dec. 17, 2015
OSHA and the U.S. Department of Justice put employers on notice on Dec. 17 that serious jail time could be in their future if employees die as a result of violations of the Occupational Safety and Health Act and other Department of Labor statutes.

At first glance, the case was no different than many other OSHA fatality investigations. An employee suffered a fatal fall, the employer claimed he had issued fall protection to his employees and this particular employee, for whatever reason, wasn’t wearing it when he fell.

OSHA cited Jenkintown, Pa.-based James J. McCullagh Roofing Inc. for 10 alleged safety violations – including three willful violations – following its investigation of the fatal June 2013 accident in which the worker fell 45 feet while performing roofing repairs on a church in Philadelphia.

“This tragic accident could have been prevented had the company provided the proper fall protection for employees,” Jean Kulp, acting director of OSHA’s Philadelphia Area Office, said at the time. “It’s vital that these hazards be corrected to protect employees in the future.”

The willful violations were due to a lack of fall protection for employees performing roofing work as high as 45 feet from the ground level and a lack of fall protection for employees working from a roof bracket scaffold. A willful violation is one committed with intentional knowing or voluntary disregard for the law’s requirements, or with plain indifference to worker safety and health.

The company contested the citations and the case remains pending before the Occupational Safety and Health Review Commission. That’s not the end of the story, however.

Employers like McCullagh Roofing rarely face criminal charges for workplace health and safety violations, even when employees are killed. As Deborah Harris, chief of the Environmental Crimes Section of the Department of Justice noted in a press call today, “Most [of these crimes] are misdemeanors with a maximum six month sentence.” Already overburdened U.S. Attorneys do not want to spend time on those cases, she added.

However, a new memorandum of understanding between the DOJ and OSHA puts some bite into the bark of criminal charges. The MOU moves some statutes – the Occupational Safety and Health Act, the Mine Safety and Health Act and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) – into DOJ’s Environment and Natural Resource Division’s Environmental Crimes Section, and the Justice Department’s Environment and Natural Resources Division and the U.S. Attorney’s offices will work with OSHA, MSHA and the Department of Labor's Wage and Hour Division to investigate and prosecute worker endangerment violations.

That means, said OSHA Administrator Dr. David Michaels, that employers like McCullagh now face prison terms of 25 years instead of 6 months if convicted of crimes that contribute to the deaths of employees.

‘Low-Road Employers’

“On an average day in America, 13 workers die on the job, thousands are injured and 150 succumb to diseases they obtained from exposure to carcinogens and other toxic and hazardous substances while they worked,” said Deputy Attorney General Sally Quillian Yates. “Given the troubling statistics on workplace deaths and injuries, the Department of Justice is redoubling its efforts to hold accountable those who unlawfully jeopardize workers’ health and safety.”

Yates today sent a letter to all 93 U.S. Attorneys across the country, urging federal prosecutors to work with the Environmental Crimes Section in pursuing worker endangerment violations. The worker safety statutes generally provide only for misdemeanor penalties. However, prosecutors now have been encouraged to consider utilizing Title 18 and environmental offenses, which often occur in conjunction with worker safety crimes, to enhance penalties and increase deterrence. 

As OSHA Administrator Dr. David Michaels noted on the same press call, “strong criminal prosecution is a powerful tool” when dealing with what he called “low-road employers.”

Roofing company owner James J. McCullagh was charged in June with four counts of making false statements, one count of obstruction of justice and one count of willfully violating an OSHA regulation causing death to an employee. On Dec. 9, he pleaded guilty to all charges.

“I would like to thank the U.S. Attorney’s Office and the U.S. Department of Labor’s Office of Inspector General for all their hard work on this case,” said Michaels, who cited the case on the press call as an example of the types of cases the agency would like to pursue via the new MOU. “No penalty can bring back the life of this employee, but the outcome in this case will send a clear message that when employers blatantly and willfully ignore worker safety and health responsibilities, resulting in death or serious injury to workers, or lie to or obstruct OSHA investigators, we will pursue enforcement to the fullest extent of the law, including criminal prosecution.”

According to the original indictment, McCullagh attempted to cover up his failure to provide fall protection by falsely stating, on four occasions, that he had provided fall protection equipment, including safety harnesses, to his employees. McCullagh told an OSHA compliance officer that his employees had been wearing safety harnesses tied off to an anchor point when he saw them earlier in the day prior to the fall. McCullagh knew that he had not provided fall protection to his employees and none of his employees had safety harnesses or any other form of fall protection. McCullagh also directed other employees to falsely state that they had fall protection, including safety harnesses, on the day of the fall.

He faces a maximum sentence of 25 years in prison, three years of supervised release, $1.5 million in fines and a $510 special assessment for the criminal conviction. 

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