Employment-related crimes.

AuthorCollins, Jillian M.
PositionTwenty-Fifth Edition of the Annual Survey of White Collar Crime
  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 b. Defenses i. Preemption ii. Unpreventable or Unforseeable 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. Elements of the Offense 1. Employee 2. Employer 3. Willful Violation B. Penalties C. Enforcement 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. Requests or Receives 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 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)


    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's general duty clause requires employers to furnish their employees with a working environment free from recognized hazards, whether or not such hazards are covered by agency regulations. (9) The special duty clause requires employers to comply with the specific standards promulgated under this Act. (10) The statute also requires compliance with specific occupational safety and health rules promulgated by the Secretary of Labor. (11)

      The OSH Act provides for criminal sanctions (12) in three situations: (i) when an employer's willful violation of a standard, rule, order, or regulation causes the death of an employee; (13) (ii) when an individual makes a false representation regarding OSH Act compliance; (14) and (iii) 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, (iv) which 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) in the Third, Fifth, and Seventh Circuits 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) The D.C. Circuit has specifically avoided ruling on the issue. (22)

        Significantly, the employer controlling the workplace may be liable for hazards to other employer's employees, even if the controlling employer did not create the hazard. (23) While this long-standing principle was called into question by a 2007 decision of the Occupational Safety and Health Review Commission ("Review Commission"), (24) the Ninth Circuit vacated the decision in February 2009. (25)

        ii. Willful Violation

        "Willful violation" is not defined in the OSH Act. Most federal circuits have 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. (26) Only the Third Circuit requires a showing of malice or bad intent in order to impose liability. (27) The statute does not require prior action by OSHA against the employer in order to establish intentional disregard or plain indifference; (28) a single or first-time violation may be found to be willful. (29) Finally, a simple good faith belief that alternative measures are in compliance with the purpose of a standard is not sufficient to avoid liability. (30)

        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. (31) The Secretary of Labor has the burden of proving a willful violation occurred. (32) While employers are typically cited for willful violations of a specific safety standard, (33) they are still subject to the general duty clause requiring an employer to furnish a safe work environment. (34)

        iv. Causes Death

        For an employer to be held criminally liable, the willful violation must result in the death of an employee. (35) The legislative history of the OSH Act suggests a factual basis for determining causation, as opposed to a legal, substantial factor basis. (36) The OSH Act defines employee as "an employee of an employer who is employed in a business of his employer which affects commerce." (37)

        b. Defenses

        This section discusses possible defenses available to an employer: (i) preemption; (ii) isolated occurrence; (iii) impossibility of compliance; (iv) greater hazard; and (v) additional general defenses. The employer has the burden of raising and proving an affirmative defense. (38)

        i. Preemption

        An employer may be able to present an affirmative defense of preemption. Occupation Safety and Health Administration ("OSHA") regulations governing the working conditions of employees (39) are preempted by regulations or standards affecting occupational safety and health enacted by other federal agencies. (40) 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. (41)

        ii. Unpreventable or Unforeseeable Employee Misconduct

        The unpreventable employee misconduct defense (42) is one of the most frequently litigated defenses to OSH Act citations. (43) 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. (44) 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. (45)

        There is a split among the federal circuit courts as to who has the burden of proof when the unpreventable employee misconduct defense is raised in the context of a violation of the special duty clause. In the majority of circuits, once the Secretary of Labor has made a prima facie case of violation of the special duty clause, the burden shifts to the employer to prove unpreventable employee misconduct. (46) In order to assert the defense successfully, the employer must demonstrate that it: (i) established a safety rule; (ii) adequately communicated the rule to employees; (iii) took steps to discover noncompliance; and (iv) effectively enforced the rule when violations were discovered. (47) However, the Third, Fourth, and Tenth Circuits require the Secretary to establish, as part of his prima facie case, that the violation was not the result of unforeseeable employee misconduct. (48)

        iii. Impossibility of Compliance

        An employer can assert the defense of impossibility if compliance cannot be achieved. (49) To establish this defense, the employer must prove that: (i) compliance was not possible or would preclude performance of the work; (50) and (ii) alternative safety measures were used when available. (51)

        iv. Greater Hazard

        For violations of a specific duty under OSHA, an employer may also assert the avoidance of a greater hazard as an affirmative defense. (52) To establish the greater hazard defense, the employer must prove that: (i) the hazards of compliance are greater than the hazards of noncompliance; (53) (ii) alternative means of protection were unavailable; (54) and (iii) a variance was unavailable or inappropriate. (55)

        v. General Defenses

        The OSH Act imposes a six-month statute of limitations on the issuance of citations. (56) In addition, an employer may claim that OSHA's failure to issue a citation "with reasonable...

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