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'Woefully insufficient'

May 1, 2012

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Dissatisfied with criminal provisions in the OSH Act, safety advocates try other legal routes

By Ashley Johnson, associate editor

KEY POINTS
  • Being limited to a misdemeanor charge against a company may discourage federal prosecutors from taking worker safety cases.
  • An initiative by the Department of Justice, OSHA and the Environmental Protection Agency uses environmental laws to secure harsher sentences for employers whose environmental violations enganger workers.
  • Criminally prosecuting an employer can cause an industry to change its practices, experts claim.
At the trial of contractor Keith Gordon-Smith, workers testified that asbestos was falling on them “like snow” as they removed pipes and scrap metal from a building in Rochester, NY, in 2007. Despite the hazard, Gordon-Smith failed to provide workers with masks or protective clothing, and repeatedly denied the material was asbestos, they said. He also allegedly lied to an OSHA inspector who visited the site following worker complaints.

After being convicted in 2010, Gordon-Smith was sentenced in 2011 to six years in prison and ordered to pay $300,000 in restitution; his company, Gordon-Smith Contracting Inc., was fined $4,400.

The lengthy sentence stemmed primarily from environmental crimes, including violating the Clean Air Act. To Peg Seminario, this highlights the inadequacy of criminal provisions in the Occupational Safety and Health Act. 

“They couldn’t even prosecute this case, except for the false statement part of it, under the OSH Act because nobody died,” said Seminario, safety and health director for the Washington-based AFL-CIO.

The OSH Act limits criminal prosecution to a willful violation of an OSHA standard that results in a worker’s death, giving advance notice of an inspection or knowingly making a false statement. Even then, worker safety advocates contend, the penalty is weak – a misdemeanor punishable by fines and a maximum of six months of jail time.

With legislation to strengthen the OSH Act stalled in Congress, environmental and other laws at the federal, state and local levels may present better avenues to justice.

High priority, low penalty

Solicitor of Labor M. Patricia Smith said the Department of Labor places a “high priority” on these cases. “The problem is,” she added, “the criminal provisions under the OSH Act are very weak, and it is difficult often to get a U.S. attorney to prosecute under the OSH Act in large part because they’re limited to a misdemeanor and they’re limited to a charge against the company.”

Former federal prosecutor William P. Sellers IV agreed. “The hurdle that all of these cases have is that the penalties are woefully insufficient,” he said.

Sellers oversaw Department of Justice prosecution of OSHA cases in the 1990s and early 2000s. He recalled winning most of his cases, but emphasized that DOJ generally does not grab cases – DOL needs to refer them for prosecution. 

A 2008 report from Democrats in the Senate Health, Education, Labor and Pensions Committee identified problems in OSHA’s handling of fatality cases. The report, “Discounting Death: OSHA’s Failure to Punish Safety Violations That Kill Workers,” criticized OSHA for downgrading citations and failing to seek prosecution of serious offenders. Of 237 eligible fatality cases from 2003 to 2008, OSHA referred only 50 to DOJ, 10 of which were prosecuted, according to the report.
 
Democrats repeatedly have reintroduced the Protecting America’s Workers Act to increase civil and criminal penalties in the OSH Act, but the bill has failed to become law. In 2011, Rep. Lynn Woolsey (D-CA) introduced a version of PAWA (H.R. 190) that would apply criminal penalties to serious bodily injuries as well as fatalities; reduce the requirement from “willfully” to “knowingly” violating an OSHA standard; lengthen the prison term – thereby making the offense a felony; and expand liability to corporate officers and directors.

In an interview with Safety+Health, Woolsey said the changes are necessary to impact employers who consider fines simply the cost of doing business.

“It could – it ought to – help them think differently about protecting their employees,” she said.
Given the divided political climate, Woolsey anticipates having to break up PAWA and pass items separately.

“Well, in this Congress, that’s the only way anything will happen, and, as the weeks and months are ticking off, I’m even doubtful that that will happen,” she said.
 
‘Really heavy hammer’

Although supportive of enhancing criminal penalties, Richard Fiore, regional solicitor for DOL from 1994 to 2004, said that criminal enforcement does not apply to most cases.

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“This is not a criminal statute,” he said of the OSH Act. “The purpose of a criminal statute is to punish you, the purpose of a civil statute is to get you to do something, to fix something, and the reason why there is a criminal provision in a civil statute is to say, ‘I guess I can’t get you to fix it unless I prosecute you.’”

Fiore insisted low penalties and resource constraints did not deter him from recommending egregious cases for prosecution.

“My experience was that we always found the resources even though sometimes we didn’t have them,” he said. “We found the resources because they were important cases; they sent a huge message to generally an industry, not just the individual.”

Both Fiore and Sellers advocate considering stronger charges in other federal statutes, such as obstruction of justice, perjury and mail fraud. Additionally, Smith said DOL is attempting to develop relationships with state and local prosecutors because they have felony charges that would fit many of these situations, such as reckless endangerment and negligent homicide.

To capitalize on tougher environmental penalties, DOJ, OSHA and the Environmental Protection Agency in 2005 launched an initiative aimed at prosecuting employers whose environmental crimes coincide with safety violations that endanger workers. Through the initiative, the Environmental Crimes Section at DOJ works with OSHA and EPA to review cases and identify employers for investigation or prosecution. ECS also provides training on environmental crimes and investigations to government officials so they can spot potential cases. The Gordon-Smith asbestos case is an example of this partnership at work.

But many safety cases have nothing to do with an environmental statute, said Jane F. Barrett. Barrett is a professor and director of the Environmental Law Clinic at the University of Maryland in Baltimore and a former environmental prosecutor at the federal and state levels.

“I think that to the extent that the environmental statutes can be used to bring to justice people who have caused worker deaths as a result of their failure to comply, that’s positive,” she said. “But it’s not a fix that addresses all of the potential criminal conduct out there.”

It is important to be able to charge the individuals responsible for putting lives at risk, Barrett said. In her paper “When Business Conduct Turns Violent: Bringing BP, Massey, and Other Scofflaws to Justice,” published in the American Criminal Law Review (Vol. 48, No. 2), Barrett acknowledged that sifting through the layers of an organization to identify decision-makers takes time and expertise. She argued that while indicting a company and levying a fine may be easier, personal accountability does more to change behavior. 

Incarceration “sends the most extreme message that you cannot buy yourself out of this situation,” Barrett told S+H.

“That’s a really heavy hammer and you don’t use it a lot,” she added, “but it’s very powerful. That’s why I think a lack of criminal enforcement in these kinds of cases really does undervalue life, because we’re basically saying if it happens in the workplace, then they’re not going to face criminal charges.”

Success in California  

Among the states, California, which runs its own occupational safety and health program, stands out for its willingness to pursue criminal cases. In May 2011, a San Francisco roofing contractor and a foreman were sentenced to one year in jail after an employee fell to his death at a worksite lacking protections. And when S+H went to press, the University of California, Los Angeles, and a chemistry professor each were facing three felony counts of willfully violating occupational safety and health standards in connection with a fatal laboratory fire.
 
Part of what makes California unique is its Bureau of Investigation, which is responsible for investigating and preparing safety and health cases for prosecution. The state’s Bureau of Investigation currently has four investigators, most of whom are former police officers, according to Amy Martin, chief counsel of the California Division of Occupational Safety and Health. She said the investigators participate in joint training with district attorneys to ensure the program is effective.

Frances Schreiberg, former director of the California Bureau of Investigation, stressed that these are not easy cases. Schreiberg was hired by Cal/OSHA in the 1980s to increase criminal prosecutions, especially those of health cases. Now a pro-bono attorney with the Oakland, CA-based firm Kazan, McClain, Lyons, Greenwood & Harley, she called for manslaughter charges in the UCLA case.

“There are several factors with bringing these cases,” she said. “The first is that most prosecutors, whether they’re federal or state, don’t perceive that killing a worker is a crime. They see it as an accident.”

To change that view while at Cal/OSHA, Schreiberg met with district attorneys to convince them to look at regulatory violations and bring criminal charges when appropriate. Her office also provided training and resources, such as model search warrants.

“Whatever I could do to make their lives easier and to try and help them out, I tried to do,” Schreiberg said.

Deterrent effect

One argument for strengthening criminal penalties is that these cases deter similar behavior. As Martin said, “A successful criminal prosecution – that lets an industry know that they need to be serious about safety.”

However, James Lastowka, head of the OSHA, Mine Safety and Health Administration & Catastrophe Response Group at the Washington-based law firm McDermott Will & Emery LLP, has a different opinion.

“I think the deterrent effect frankly is overstated,” he said. “I don’t know entities or organizations that are looking at the criminal penalties and then deciding what to do and how to proceed.”

Lastowka suggested increasing penalties in the OSH Act may be unnecessary given the criminal statutes available locally. While agreeing that prosecutions have a place in the right circumstances, he said most responsible organizations already follow regulatory requirements.

For those that do not, Fiore found that being taken to court, regardless of the type of charge, made an impact.

“A criminal prosecution, even a misdemeanor prosecution, is a big deal for a company,” he said. “They do not want the publicity of a criminal prosecution, and they do not want the stigma of having been indicted and especially convicted in a criminal case.” 

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