Prosecutors Getting More Aggressive On Worker Safety Cases

In 2016, a New York State construction contractor received a manslaughter charge of criminally negligent homicide and reckless endangerment for his role in the worker’s death. As recent as August 2019, two employers were criminally charged for workplace fatalities. 
One employer was charged with manslaughter after a worker’s death in a trench collapse in Colorado. The employee was tying copper piping in a main water line, about 8-feet deep in a trench, according to an OSHA inspection notice, when the trench collapsed and buried him. The incident, investigated by OSHA and local police, supported a criminal prosecution.
Another incident involved an owner of a western New York tree removal service who was arrested and charged with second degree manslaughter for allegedly operating a crane too close to power lines, resulting in the death of an employee. The charges allege that the employer put the employee in danger by operating the crane too close to the power lines and failed to put known proper safety protocols in place. 
Prosecutions against employers in New York, ranging from Fortune 500 companies to small contractors, are on pace to meet and potentially exceed estimates by the end of the year, according to the Manhattan District Attorney’s Office. Since 2015, New York’s Construction Fraud Task Force investigations have resulted in 20 criminal convictions. They are becoming more efficient at predicting bad actor companies before accidents happen. 
The Construction Fraud Task Force of the Investigation Division for the Manhattan District Attorney’s Office has developed an anonymous WhatsApp number for employees to leave tips. With WhatsApp, employee statements can be anonymous and they can take live video and pictures. 
Willful Violations Can Lead to Prosecutions
OSHA commonly cites construction employers whose employees fail to use fall protection. In fact, 29 CFR § 1926.501 (Fall Protection in Construction) is the most frequently cited regulation by federal OSHA. Employers who fail to provide and enforce the use of fall protection do so at their own risk, as OSHA will cite employers with willful violations, dramatically increasing the civil penalties. In the event of a fatality, a willful citation can then lead to a criminal prosecution by the Department of Justice.
One case from July 2018 is an example of just this kind of prosecution, when OSHA cited an employer for a willful violation of the fall protection standard for steel erection. The contractor was also criminally prosecuted, convicted, and sentenced to the maximum penalty ($500,000).
The employer appealed, stating that the Department of Justice failed to prove the three elements necessary to find a criminal conviction: (1) that the company violated an applicable standard, (2) that it did so willfully, and (3) that the violation caused an employee’s death.
The employer argued that its conduct was not willful because it provided fall protection and anchorage points, and the employee was wearing a harness. The Court countered that while the employee had a personal fall-arrest harness and connectors, he was not using them to secure himself to an anchorage point. The Court explained that “the regulations state that employees ‘shall be protected’ by appropriate equipment, not that they merely be provided with or possess such equipment.”
Employers Should Contest Unfounded Citations 
Because They Can Establish Criminal Intent
The court noted that the contractor had a previous citation for violating the same standard, and concluded that the contractor was aware of its requirements. 
Employers can learn from this case. Obviously, providing a safe workplace and ensuring that employees follow safe work practices is a basic requirement. This will not only help prevent an injury from occurring, but will also allow the employer to prove the defense of employee misconduct when an employee fails to use his/her safety equipment. This case also illustrates how accepting and settling citations may set up an employer for a willful citation in the future, and even a criminal prosecution in the event of a fatal accident. Employers should consult with legal counsel regarding an OSHA citation and ensure that any defensible citations are contested.
Supreme Court Involvement
As New York prosecutors continue their work, pending cases could affect how the nation’s prosecutors do their job in the future. Local prosecutors taking on safety cases could have been left in limbo if the U.S. Supreme Court took on a California case that asked the nation’s high court to resolve whether prosecutors could have a role in worker safety law enforcement. 
The California Supreme court held that a plastics company is criminally liable for a water heater explosion that killed two of its employees. The state’s Division of Occupational Safety and Health, also known as Cal/OSHA, determined that the explosion was caused by a failed safety valve and that the heater lacked safety features due to “manipulation and misuse.” This ruling supports California State prosecutors who have been bringing criminal charges against companies for decades. In June 2017, the company petitioned the U.S. Supreme court to hear the case. On October 15, 2018 the U.S. Supreme Court denied the petition to hear the case, thereby holding up the decision of the California Supreme court.