Employment-related crimes.

AuthorLoewenstein, Andrew B.

    This Article surveys the criminal penalties utilized to protect workers in the areas of occupational safety and employment practices. These penalties are part of larger regulatory measures enacted to ensure worker safety, eliminate labor conditions detrimental to the nation's commerce and the general welfare of workers, and provide labor unions greater protection from corrupt union and management officials. Section II discusses criminal sanctions relevant to worker safety through the Occupational Safety and Health Act ("OSH Act"),(1) state criminal law, and the Federal Mine Safety and Health Act ("FMSHA").(2) Section III analyzes the criminal law covering employment practices in the Fair Labor Standards Act ("FLSA").(3) Section IV covers the Labor Management Relations Act ("LMRA"), which prohibits payments and loans by employers to employees or labor organizations.(4) And finally, Section V reviews [sections] 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 the criminal laws relevant to aspects of worker safety. Part A analyzes the OSH Act(6) first by examining the offense of willful violation of a standard leading to the death of an employee and the offense of false representation. In addition, the potential penalties for these offenses and the degrees of enforcement are reviewed. Next, Part B discusses state criminal law and its effectiveness in deterring violations of the OSH Act. Part B also examines current efforts in reforming occupational safety and health. And finally, Part C discusses the FMSHA,(7) including offenses and current reform efforts under the law.

    1. Occupational Safety and Health Act

      Due to increasing employee deaths and injuries in the late 1960s, Congress enacted the OSH Act in an attempt to ensure worker safety.(8) The OSH Act includes a general duty clause requiring employers to furnish their employees with a working environment free from recognized hazards.(9) The statute also requires employers to comply with specific occupational safety and health rules promulgated by the Secretary of Labor.(10) Violation of these standards may lead to criminal sanctions in addition to the civil sanctions already required by the OSH Act.(11)

      While the OSH Act provides for criminal sanctions in three situations, only two have been regularly enforced: when an employer's willful violation of a standard, rule, order, or regulation causes the death of an employee,(12) or when an employer makes a false representation regarding OSH Act compliance.(13) The third situation, the section of the OSH Act that contemplates criminal sanctions for any person giving advance notice of an inspection,(14) has not been a source of criminal prosecutions.(15) Finally, employers may be subject to both civil fines and criminal sanctions in separate prosecutions for the same violation.(16)

      1. Employer's Willful Violation of Standard Causes Death

        a. Elements of the Offense

        If (i) an employer (ii) willfully violates (iii) a specific standard, rule, order, or regulation, (iv) which causes the death of an employee, criminal sanctions may ensue.(17)

        i. Employer

        An "employer" is statutorily defined as a "person engaged in a business affecting commerce who has employees."(18) In addition, corporate officers in their individual capacities may also be criminally sanctioned under the OSH Act.(19) In the Third, Fifth, and Seventh Circuits, a "mere employee" who is not an officer cannot be liable as an aider and abettor of the employer's criminal liability.(20) The potential liability of a third party or employee, acting in a capacity separate from his or her role as an employee, who aids and abets an employer, has not been resolved.(21)

        In work places where multiple employers are present, the employer who creates or controls a hazard may be liable to employees of the other employers in that work place, such as those of a general contract or a subcontractor.(22) Use of a general contractor or subcontractor creates an employment relationship; thus, the party controlling the work or work environment may be liable to the contractor's employees.(23) Subcontractors also may be liable to others' employees, including employees of the general contractor, even if the subcontractors have not created the hazard, but have control over the work environment.(24)

        ii. Willful Violation

        The definition of willful violation is not provided in the OSH Act, but the courts have adopted the Review Commission's and Secretary of Labor's interpretation as a voluntary action, done either with intentional disregard of or with plain indifference to the statutory requirements.(25) This definition does not require malicious intent to impose liability in the majority of jurisdictions, including the First,(26) Second,(27) Fourth,(28) Fifth,(29) Sixth,(30) Seventh,(31) Eighth,(32) Ninth,(33) Tenth,(34) Eleventh,(35) and District of Columbia Circuits, impose liability without malicious intent.(36) In contrast, the Third Circuit requires a showing of knowing, conscious, deliberate flaunting of OSH regulations to support a finding of willful violation.(37) In addition, a good faith belief in compliance with the purpose of a standard through alternative measures is not sufficient to avoid liability.(38)

        iii. Specific Standard

        To willfully violate the OSH Act, an employer must fail to comply with a specific standard, rule, order or regulation.(39) The burden of proof lies with the Secretary of Labor.(40) Although an employer is still subject to the general duty clause, typically employers are cited for willful violations of a specific safety standard.(41)

        iv. Causes Death

        Finally, for an employer to be held criminally liable, a violation must result in the death of an employee.(42) An "employee" is statutorily defined as "an employee of an employer who is employed in a business of his employer which affects commerce."(43) Causation has not been a significant issue because the legislative history of the OSH Act seems to support a lenient definition of causation.(44)

        b. Defenses

        Defenses available to an employer include (i) preemption, (ii) isolated occurrence, (iii) impossibility of compliance, (iv) greater hazard, and (v) technical issues.

        i. Preemption

        First, an employer may be able to present a defense of preemption. In 1992, the Supreme Court held that state regulation of occupational safety and health issues already regulated by a federal standard is preempted by the OSH Act.(45) States may, however, regulate worker safety if a state plan is approved by the Secretary of Labor as meeting the requirements of [sections] 18(c) of the OSH Act.(46) Thus far, twenty-one states and two territories have received the Secretary's approval for their plans.(47)

        Occupational Safety and Health Administration ("OSHA") regulations governing the working conditions(48) of employees are themselves preempted by regulations or standards affecting occupational safety and health enacted by other federal agencies.(49) Although the rationale supporting such preemption is broadly phrased,(50) individual determinations based upon preemption tests often turn on specific aspects of the other agency's regulation.(51)

        ii. Isolated Occurrence

        Second, employers may argue that the death in question resulted from an isolated occurrence caused by the inappropriate or unforeseeable action of a single employee.(52) In order to assert the defense successfully, the employer must demonstrate that it established a safety rule, communicated the rule to employees, took steps to discover noncompliance, and enforced the rule when it was violated.(53) The burden of proof for the affirmative defense lies with the employer.(54)

        iii. Impossibility of Compliance

        When compliance cannot be achieved, an employer may claim the defense of impossibility.(55) To establish this defense, the employer must prove that compliance was impossible or infeasible,(56) and that it used alternative safety measures if any were available.(57) The burden of proof is on the employer to establish the defense.(58)

        iv. Greater Hazard

        Fourth, "avoidance of a greater hazard is also an affirmative defense."(59) If the hazard of compliance with a standard is greater than that of noncompliance and there are no alternative means,(60) an employer may escape liability.(61)

        v. Technical Issues

        At least one court suggests there may be a technical defense when delay in prosecution prejudices the employer's case.(62)

      2. False Representations(63)

        Anyone who "knowingly makes a false statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained pursuant to [the OSH Act]" may be criminally prosecuted.(64) Such prosecution, however, is infrequently pursued.(65)

      3. Penalties

        To enforce the OSH Act's worker safety mandate, Congress provided for the possibility of both civil and criminal penalties.(66) For a first conviction for a willful violation causing death to an employee, an employer faces a fine of up to $10,000, imprisonment for up to six months, or both.(67) For subsequent convictions, an employer faces fines of up to $20,000, imprisonment for up to one year, or both.(68) A person convicted of providing unauthorized advance notice of any inspection conducted under the OSH Act may be subjected to a fine of up to $1,000, imprisonment for up to six months, or both.(69) Convictions for making false representations in documentation required under the OSH Act are punished with fines of up to $10,000, imprisonment for up to six months, or both.(70)

      4. Enforcement

        As of September 1997, the Department of Justice had received only 121 referrals for OSH Act violations.(71) Of these, only three employers have been imprisoned,(72) but sentences involving home confinement and time in halfway houses are occasionally imposed.(73) Also, the...

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