Employment law violations.

• Author: Bell, Sarah

1. INTRODUCTION II. WORKER SAFETY A. Occupational Safety and Health Act 1. Employer's Willful Violation of a Standard Causing Death a. Elements of the Offense i. Employer ii. Willful Violation. iii. Specific Standard, Rule, Order, or Regulation iv. Causes Death of Employee b. Defenses i. Preemption ii. Unpreventable or Unforeseeable Employee Misconduct iii. Impossibility of Compliance iv. Greater Hazard v. General Defenses 2. False Representations 3. Enforcement 4. Penalties B. Federal Mine Safety and Health Act III. THE FAIR LABOR STANDARDS ACT A. Prohibited Acts Under the FLSA 1. Failing to Pay the Federal Minimum Wage or Overtime Compensation 2. Discharging an Employee for Filing a Complaint 3. Discriminating on the Basis of Sex B. Elements of the Offense 1. Employee 2. Employer 3. Willful Violation C. Penalties D. Enforcement E. Defenses IV. PAYMENT OR LOANS BY EMPLOYER TO EMPLOYEES OR LABOR ORGANIZATIONS A. Elements of the Offense 1. Employer 2. Willfulness 3. Pay or Lend Money or Thing of Value 4. Employee or Representative of an Employee 5. Request or Receive B. Exceptions C. Penalties V. PROTECTING UNION FUNDS UNDER THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT A. Elements of the Offense 1. Officer or Employee 2. Appropriation of Union Assets for One's Own or Another's Purpose 3. Fraudulent Intent B. Defenses C. Penalties I. INTRODUCTION

   This Article analyzes criminal statutes that punish employers for violations of occupational safety and employment standards. The pertinent regulatory scheme was enacted to ensure worker safety, eliminate labor conditions detrimental to the nation's commerce and the general welfare of workers, and provide labor unions with greater protection from corrupt union and management officials. Section II of this Article discusses criminal sanctions relevant to worker safety under the Occupational Safety and Health Act ("OSH Act") (1) and the Federal Mine Safety and Health Act ("FMSHA"). (2) Section III analyzes criminal sanctions applicable to employment practices under the Fair Labor Standards Act ("FLSA"). (3) Section IV discusses the Labor Management Relations Act ("LMRA"), which prohibits employers from making payments and loans to employees or labor organizations. (4) Finally, Section V reviews [section] 501(c) of the Labor-Management Reporting and Disclosure Act ("LMRDA"), which prevents appropriations of union funds for non-union purposes. (5)

2. WORKER SAFETY

   This Section discusses criminal laws relevant to worker safety. Part A analyzes the OSH Act (6) by examining two offenses: (i) willful violation of a specific standard resulting in employee death and (ii) false representation. In addition, this Section discusses enforcement of these provisions and the applicable penalties for offenses. Part B discusses FMSHA, (7) including the elements of the offenses.

   1. Occupational Safety and Health Act

      Congress enacted the OSH Act in response to increasing numbers of employee deaths and injuries in the late 1960s. (8) The OSH Act imposes two duties on employers. (9) The general duty, a catch-all duty, requires employers to provide employees safe employment and a safe place of employment. (10) The special duty requires employers to "comply with occupational safety and health standards promulgated under this Act." (11)

      The OSH Act provides for criminal sanctions (12) in three situations: (1) when an employer's willful violation of a standard, rule, order, or regulation causes the death of an employee; (13) (2) when an individual makes a false representation regarding OSH Act compliance; (14) and (3) when any person gives advance notice of an inspection. (15)

      1. Employer's Willful Violation of a Standard Causing Death

         a. Elements of the Offense

         Criminal sanctions may be imposed if (i) an employer (ii) willfully violates (iii) a specific standard, rule, order, or regulation, and (iv) the violation causes the death of an employee. (16)

         i. Employer

         The OSH Act defines an employer as "a person engaged in a business affecting commerce who has employees, but does not include the United States ... or any State or political subdivision of a State." (17) Although corporate officers in their individual capacities may be criminally sanctioned under the OSH Act, (18) the U.S. Courts of Appeals for the Third, Fifth, and Seventh Circuits have held that a "mere employee" (one who is not an officer) cannot be held criminally liable for aiding and abetting an employer. (19)

         In multiple-employer workplaces, the employer who creates or controls a hazard may be liable for hazards affecting employees of the other employers in that workplace. (20) Of the courts to consider the multi-employer doctrine, only the Fifth Circuit has rejected it. (21) Significantly, the employer controlling the work place may be liable for hazards to other employers' employees, even if the controlling employer did not create the hazard, (22) or if the controlling employer has none of its own employees onsite.

         A subcontractor who has control over the work environment may be liable for hazards to employees of the general contractor, even if the subcontractor did not create the hazard. A subcontractor who agrees to perform any part of the contract assumes responsibility for complying with the standards. (23) Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. (24) With respect to subcontracted work, the prime contractor and any subcontractors have joint responsibility. Where joint responsibility exists, both the prime contractor and subcontractors shall be subject to the enforcement provisions of the OSH Act. (25)

         The Occupational Safety and Health Review Commission ("Review Commission") (26) has debated the issue of whether the absence of an employer's own employees on the worksite could shield that employer from OSHA citation. A 2007 decision held that a general contractor was not a "controlling employer" because its own employees were not exposed to alleged violations. That decision was vacated by the Eighth Circuit and expressly overruled in a subsequent Review Commission decision. (27)

         ii. Willful Violation

         "Willful violation" is not defined in the OSH Act. Every federal circuit has adopted some form of the Review Commission and Secretary of Labor's interpretation: a voluntary action, done with either intentional disregard of, or with plain indifference to, the statutory requirements. (28)

         As for the statute, it does not require prior action by the Occupational Safety and Health Administration ("OSHA") against the employer in order to establish intentional disregard or plain indifference; (29) a single or first-time violation may be found to be willful. (30) Finally, a simple good-faith belief that alternative measures are in compliance with the purpose of a standard is not sufficient to avoid liability. (31)

         iii. Specific Standard, Rule, Order, or Regulation

         To violate the OSH Act, an employer must willfully or repeatedly fail to comply with a specific standard, rule, order, or regulation. (32) The Secretary of Labor has the burden of proving that a willful violation occurred. (33) While employers are typically cited for willful violations of a specific safety standard, (34) they are still subject to the general duty clause requiring an employer to furnish a safe work environment. (35)

         iv. Causes Death of Employee

         For an employer to be held criminally liable, the willful violation must result in the death of an employee. (36) The legislative history of the OSH Act suggests a factual basis for determining causation, as opposed to a legal, substantial-factor basis. Because "caused death" and "resulting in death" are used interchangeably, Congress clearly sought a fact-based inquiry into whether the violation led to any deaths, as opposed to a more stringent and complicated inquiry into whether the violation was a substantial factor in causing any deaths. (37)

         The OSH Act defines employee as "an employee of an employer who is employed in a business of his employer which affects commerce." (38) Because the multi-employer doctrine extends the specific duty of employers to another's employees, courts usually focus on the definition of employer and the establishment of an employment relationship. (39)

         h. Defenses

         There are several possible defenses available to an employer: (i) preemption; (ii) unpreventable employee misconduct; (iii) impossibility of compliance; (iv) greater hazard; and (v) additional general defenses. The employer has the burden of raising and proving an affirmative defense. (40)

         i. Preemption

         An employer may be able to present an affirmative defense of preemption. Preemption occurs when a specific rule, in this case an OSHA regulation, is inapplicable because Congress or another Federal agency has precluded the enactment of future laws on the same subject. (41) OSHA regulations governing the working conditions of employees (42) are preempted by regulations or standards affecting occupational safety and health enacted by other federal agencies (43) Although the rationale supporting such preemption is broadly phrased, the determination of whether the OSH Act is preempted turns on whether other agencies have actually exercised their authority to regulate occupational safety. (44)

         ii. Unpreventable or Unforeseeable Employee Misconduct

         The unpreventable employee misconduct defense (45) is one of the most frequently litigated defenses to OSH Act citations. (46) Under this defense, employers can assert that the violation in question resulted from an isolated occurrence caused by the inappropriate or unforeseeable action of an employee. (47) When there is a violation of the general duty clause and an employer asserts this defense, the burden of proof is on the Secretary of Labor. (48)

         There is a split among the federal circuit courts as to which party has the burden of proof when the...