Chapter Corner

OSHA and Department of Justice Double Teaming Employers

Posted in: Features, May/June 2016

In basketball, a double team occurs when two players from one team are defending one player from the opposing team. A double team is a two on one defense that brings an extra pair of hands to deflect passes, block shots, or steal the ball.

OSHA.gifOn December 17, 2015, the Occupational Safety and Health Administration (OSHA), an agency of the Department of Labor (DOL), and the Department of Justice (DOJ) formally agreed to “double team” employers to investigate and prosecute worker endangerment violations. While they have worked together in the past, this is now a formal arrangement that employers should be very concerned about. While facing OSHA is bad enough, it’s a walk in the park compared to tangling with the DOJ.

“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.”

In a memo sent to all 93 U.S. Attorneys across the country, Deputy Attorney General Yates urged federal prosecutors to work with the DOJ in pursuing worker endangerment violations. The worker safety statutes provide for only misdemeanor penalties. However, prosecutors are now encouraged to consider utilizing Title 18 and environmental offenses, which often occur in conjunction with worker safety crimes, to enhance penalties and increase deterrence. Title 18 of the United States Code is the criminal and penal code of the federal government. It deals with federal crimes and criminal procedure.

This cooperation could lead to hefty fines and prison terms for employers and individuals convicted of violating a number of related laws. For example, the owner of a roofing company had a potential maximum sentence of 25 years in prison in connection with the death of one of his workers who fell off a roof. All because the worker didn’t have the required fall protection equipment.

James McCullagh, 60, recently pleaded guilty in federal court to six charges in connection with the death of Mark Smith, 52, in June 2013. McCullagh was sentenced to ten months in prison, one year of supervised release, and a $510 assessment on March 29, 2016. McCullagh pleaded guilty to one count of willfully violating an OSHA regulation, which led to the death of an employee (failing to provide fall protection equipment), and four counts of making false statements. He admitted to lying to investigators, telling them he had provided safety gear and harnesses to his employees when he hadn’t. McCullagh admitted telling an OSHA inspector that he’d seen his employees in harnesses and tied off earlier on the day that Smith fell to his death. McCullagh also pleaded guilty to one count of obstruction of justice for telling workers to say to OSHA investigators that they had safety equipment when they didn’t. The company was directed to pay $71,600 in civil penalties to OSHA.

Smith fell 45 feet from a roof bracket scaffold while repairing the roof of a church in Philadelphia. “No penalty can bring back the life of this employee,” said OSHA Chief David Michaels. “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.”

double-team2.gifWhile criminal prosecution in worker fatalities is still a rarity, the likelihood of charges being brought increases when there is a suspicion of lying to OSHA or other federal officials. This partnership has been brewing for a while as the Justice Department has tried to use the nation’s tougher environmental statutes to bring stronger prosecutions of workplace safety violations by focusing on companies that put workers in danger.

OSHA has placed a larger emphasis on criminal enforcement of workplace safety violations recently by referring more cases to the DOJ and U.S. Attorneys offices for criminal prosecution. They referred or assisted with the criminal prosecution of 27 cases in fiscal year 2014 – the highest ever in its history.

HOW TO AVOID BEING DOUBLE TEAMED

An employer must know that they are responsible under the Occupational Safety and Health (OSH) Act to provide a safe and healthy workplace. They also must understand that OSHA’s mission is to assure safe and healthy workplaces by setting and enforcing standards and by providing training, outreach, education, and assistance. OSHA inspections can be conducted without advance notice, on site or by phone, by highly-trained compliance officers. Their inspection priorities are imminent danger, catastrophes/fatalities, worker complaints, and targeted inspections due to high injury/illness rates or severe violators.

One of the errors many employers make is they wait until it is too late and risk a huge fine, being placed on the Severe Violators Enforcement List, and/or having one or more their senior leaders put in jail. Before OSHA shows up, employers should establish a good safety and health program with four essential elements:

  1. Management Commitments and Employee Involvement: The manager or management team must lead the way by setting policy, assigning and supporting responsibility, setting an example, and involving employees.

  2. Worksite Analysis: The worksite is continually analyzed to identify all existing and potential hazards.

  3. Hazard Prevention and Control: Methods to prevent or control existing or potential hazards are put in place and maintained.

  4. Training for Employees, Supervisors, and Managers: Managers, supervisors, and employees are trained to understand and deal with worksite hazards.

“Every worker has the right to come home safely,” said OSHA Assistant Secretary Dr. David Michaels. “While most employers try to do the right thing, we know that strong sanctions are the best tool to ensure that low road employers comply with the law and protect workers lives. More frequent and effective prosecution of these crimes will send a strong message to those employers who fail to provide a safe workplace for their employees. We look forward to working with the Department of Justice to enforce these life-saving rules when employers violate workplace safety, workers health, and environmental regulations.”

The dedication of OSHA and the DOJ to prosecute individuals for workplace safety violations is why it’s important to have a living, breathing safety program, instead of one copied from another employer or quickly downloaded from a website. OSHA inspectors can very quickly determine if a program is real or just a binder on a shelf.

Given the formal partnership between OSHA and the DOJ, employers and their management team must note the enhanced risks and implement measures to prevent themselves from being double teamed.

Randy Boss is a certified risk architect at Ottawa Kent in Jenison, MI. As a risk architect, he designs, builds, and implements risk management and insurance plans for middle market companies in the areas of human resources, property/casualty, and benefits. He has 39 years of experience and has been at Ottawa Kent for 34 years. He is a lead instructor for the Institute of Benefit & Wellness Advisors, training agents how to bring risk management to benefits and co-founder of OSHAlogs.com, an OSHA compliance and injury management platform. Randy can be reached at rboss@ottawakent.com.