Tell A Tale – Go to Jail

As most employers are, or should be aware, there are a number of potential criminal liabilities associated with occupational safety and health under Federal law. These liabilities include not only that of the employer but also management representatives. This article will discuss each of these liabilities in the context of a recent U.S. Court of Appeals’ decision, United States of America v. Maury, ____ F3d _____ (3rd Cir., Sept. 12, 2012). 

CASE

The United States indicted the employer, Atlantic States Cast Iron Pipe Company, and four of its managers, for various environmental crimes as well as violations relating to concealing work-related accidents at the workplace from OSHA, one of which resulted in an employee death. The case was tried for eight months and a jury convicted the employer and the four managers. 

OSHA-RELATED CRIMES

a. Forklift Fatality An accident occurred in which an employee was killed when he was hit by a forklift driven by another employee. The OSHA inspector was told that the forklift that she inspected had not been touched since the accident and was in “perfect operating condition” before the accident according to inspection reports. During the inspection OSHA learned that the forklift brakes were in fact defective prior to the accident, that the inspection reports were falsified and that the forklift had been repaired before OSHA inspected it. Hourly employee witnesses told OSHA they had been told to lie about the forklift or they would be fired. 

b. OSHA 300 Log Concealment During the inspection OSHA learned that a supervisor had been struck by a forklift and had apparently broken his leg. The supervisor was told to lie about the accident and deny that he had broken his leg and that he had returned to work the next day to full duty so that the injury would not have to be recorded on the OSHA 300 Log. OSHA eventually obtained medical records that indicated the supervisor had in fact broken his leg and been on restricted duty for 44 days but no entry was made on the OSHA 300 Log. 

c. Loss of Eye Accident – Machine Guarding OSHA learned about another accident in which an employee lost an eye when a piece of a rotating blade on a saw broke off and hit him in the face. When OSHA visited the worksite and inspected the machine involved in the accident there was a protective shield and screen in place to protect the operator from the equipment and OSHA was told it was in place at the time of the accident and for sixteen years previously. OSHA later learned that the shield and screen were put in place after the accident and that employees were told to lie or they would lose their jobs. 

d. Amputation Accident – Machine Guarding OSHA learned that an employee had lost three fingers in a cement mixer accident when a co-employee accidentally started the mixer. The managers told the inspector that the machine was never equipped with a safety switch or interlock to shut down the machine when the access door was opened. In fact, OSHA later learned that these devices had originally been on the machine and had been removed because they slowed down production. Again, employees had been told to lie to the inspector regarding presence and removal of these devices. 

SENTENCES 
The indictments charged the Company, the Plant Manager, the Human Resources Manager, the Maintenance Supervisor and the Finishing Department Supervisor with environmental crimes as well as obstruction of the lawful functions of OSHA in enforcing workplace safety. After the trial, the court entered sentencing on the crimes, which included the OSHA conspiracy crimes, as follows: 

• Company – a fine of $8,000,000, four years probation, and appointment of a monitor
• Plant Manager – 70 months’ imprisonment
• Human Resources Manager – 40 months’ imprisonment
• Maintenance Supervisor – 30 months’ imprisonment
• Finishing Department Supervisor – 6 months’ imprisonment

INSPECTION RISKS Obviously, the facts of this case reveal conduct that is not ever remotely anticipated by any responsible employer or manager. Unfortunately, after a serious accident when a regulatory inspection occurs, managers sometimes lose focus and attempt to avoid liability by responding to the inspector with less than complete information or outright misstatements. In such situations, there are serious risks of criminal liability for being less than truthful in the employer’s responses. 

RECOMMENDATIONS 
In order to avoid these liabilities, it is critical to pre-plan for regulatory inspections so that the employer has a strategy in how to respond with safeguards to avoid “admissions” of liability or “misstatements” of facts, that could lead to criminal liability. This preplanning should include:

• Designation of a qualified employer “point person” to direct the employer’s response to the inspection and act as the contact person for OSHA information requests
• Real time involvement of appropriate management representatives to review the agency information requests and develop accurate and timely responses
• Engagement of competent legal counsel to advise management of the respective rights of OSHA, the employer and the employees during the inspection

CONCLUSION If the employer pre-plans and executes its inspection response plan in a professional and honest manner, it will avoid the potential criminal liability for the employer and management that occurred in this case. The author has represented hundreds of employers in OSHA inspections and looks forward to assisting employers to develop their pre-plans, manage OSHA inspections and respond to any citations that may be forthcoming.