The following is a guest blog post by Brandon Jaynes, Attorney at King Law Offices, Greenville SC. The views expressed are the opinions of the author and do not reflect those of Rand Mintzer.

For many years, the sanctions to which employers were subject with regards to occupational safety workplace violations remained civil; that is, the thrust of the sanction was monetary in nature.  Although these sanctions could be substantial in nature, the trend at such workplaces continued, for the most part, statistically unabated.  Therefore, newer regulations have appeared to deal with the issue in a more forceful manner, to wit, criminal sanctions and liabilities.

The main point of criminal liability is not only a fine, but the threat of jail time for an employer who willfully commits a certain violation.  There are a number of potential recourses for the state or the Occupational Safety and Health Administration (“OSHA”), et al., to employ in order to correct the perceived or actual problem.  These can be through existing state laws, such as misdemeanor or felony reckless homicide, manslaughter, etc.; general federal law prohibitions, such as 18 U.S.C. § 1001; and, more to the point, 29 U.S.C. 666(e), et seq., as follows:

Any employer who willfully violates any standard, rule, or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both; except that if the conviction is for a violation committed after a first conviction of such person, punishment shall be by a fine of not more than $20,000 or by imprisonment for not more than one year, or by both.

29 U.S.C. 666(e).

Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this chapter shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than six months, or by both.

29 U.S.C. 666 (g).

These are the main statutes by which an appropriate federal agency can pursue criminal sanctions.  The important language in this first statute begins at “willful”; that is, some deliberate action, willful and wanton conduct, or otherwise actual knowledge of the safety violation that led to the death of an employee.  Of course, not all deaths will trigger criminal sanctions, but the requisite foreknowledge of the employer as to the safety violation will be reviewed in order to determine whether or not criminal sanctions (or civil sanctions) should apply.

As to the second, death or even injury does not need to occur.  In the normal course of things, it would typically be after such an injury or death; however, it certainly isn’t required by the statute.  Only the knowingly (as opposed to willfully) making a false statement, etc., triggers this section.  Further, there is no mention of “employer” here, and the statute would therefore apply to anyone within the organization.

Violations of workplace safety regulations have always been pervasive, and while the main weapon that has been used to fight these violations have, at most times, been civil, statutes have recently come into existence that can be used criminally.  The standard of proof changes, of course, to where a prosecutor would need to prove the violation and each element of the statute beyond a reasonable doubt, but so too does the sanction.