MSHA and OSHA Fines Are Not The Only Sanctions Faced When Fatalities Occur.
By Donna Pryor
In an unnerving trend, operators have been facing state criminal charges after accidents on their worksites. The owner of one New Hampshire company has been sentenced to prison time for the death of two employees, and a contractor in another case involving multiple fatalities faces murder charges.
This is a harsh reminder that MSHA and OSHA fines are not the only sanctions facing employers following fatal workplace accidents.
In November, the president and primary owner of Black Mag, LLC, a gunpowder-substitute manufacturer, was sentenced to 10-20 years in prison after being convicted on two counts of manslaughter. The case stems from an explosion in May 2010 that killed two employees.
In a statement following the sentencing, Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels said: “[This] criminal conviction and sentence won’t bring these men back to life, but it will keep [this business owner] from putting workers’ lives in peril. And it should drive home to employers this message: Worker safety can never be sacrificed for the benefit of production, and workers’ lives are not – and must never be – considered part of the cost of doing business. We categorically reject the false choice between profits and safety …. The Labor Department commends the Coös County Attorney’s Office for its successful prosecution.”
In Philadelphia, a contractor who oversaw a building demolition that resulted in the death of six people and injuries to 13 others recently was charged with murder, manslaughter and reckless endangerment. The Philadelphia District Attorney stated that the contractor ignored an architect’s warning to brace the four-story wall, which then fell onto a Salvation Army Thrift Store in June.
Of course criminal prosecutions are not limited to cases brought by state district attorneys. The U.S. attorneys have brought charges and obtained convictions in connection with the 2010 Upper Big Branch Mine tragedy that killed 29 West Virginia miners.
One Massey official pled guilty to a felony count of conspiracy to defraud the government by thwarting MSHA inspections and one misdemeanor count of conspiracy to violate MSHA standards. Another Massey official was sentenced to 21 months in prison and ordered to pay a $20,000 fine after pleading guilty to one count of conspiracy and admitting to ordering a company electrician to disable a methane monitor on a mining machine so it could continue to cut coal without automatic shutdowns.
These cases should serve as a wake-up call to all operators and their managers, foremen and supervisors about their personal liability under the Mine Act and beyond. Section 110(c) of the Mine Act provides for civil penalties up to $250,000 and prison sentences up to one year against an individual (director, officer or agent of the corporation) who “knowingly authorized, ordered, or carried out” any violation of any health or safety standard or any order issued under the Act.
While MSHA special investigations have been back-logged, inquiries into the actions of supervisors and managers are still being actively pursued (sometimes up to two years after an accident).
Moreover, a delay in an investigation should not be interpreted as indicating that the matter is not viewed by the agency as a serious one, worthy of personal penalties or a possible criminal sentence.
This same warning goes for the OSHA-regulated side of a business (e.g., ready mix, hot mix and paving). Under Section 17(e) of the OSH Act, an employer may be fined up to $10,000 or sentenced up to six months in prison, or both, where it is found to have willfully violated an OSHA standard and that violation causes the death of an employee.
OSHA-regulated operators should train their employees and manage their safety programs with increasing awareness of OSHA’s more aggressive posture.
All operators, managers and foremen should understand the extent of their potential liability under the law and the personal fines and criminal sanctions that may be involved should an employee be injured or worse.
Receiving a citation or order under Section 104(d) of the Mine Act or an OSHA willful citation may be the first step toward a special investigation of a manager’s actions.
Do not wait for a citation alleging a willful violation or an unwarrantable failure before training your team about manager liability under these safety laws; such training is crucial. Contact the Jackson Lewis Workplace Safety and Health practice about supervisor trainings.