|November 29, 2013|
Previously published on November 26, 2013
EHS Today just reported that the Philadelphia District Attorney is taking the unusual step of charging two contractors for crimes ranging from multiple murder and manslaughter charges to risking a catastrophe as a result of the fatal collapse of the Philadelphia building last June, that killed 6 people and injured 14.
Federal OSHA rarely seeks criminal sanctions because the OSHAct does not provide very meaningful criminal provisions. Even where OSHA may be inclined to pursue a criminal action based upon issuance of willful citations associated with a fatality, the relevant U.S. attorney may show little interest in spending time for such a small punishment. One is much more likely to see Federal criminal actions based upon destruction or falsification of evidence or other misconduct associated with the OSHA inspection.
District Attorneys are another matter. We have dealt a number of criminal investigations by District Attorneys. While most District Attorneys Offices are unfamiliar with the nuances of a building collapse or other catastrophe, their Economic Crimes unit understands how to look for conspiracy and similar bad actions. Even with ethical clients, we nevertheless closely manage testimony and evidence provided following a catastrophic accident. One manager may be interviewed by agencies ranging from ATF to OSHA and the local Police. It is essential to be consistent and accurate. When multiple employers are involved or additional parties such as architects and structural engineers, there is an increased possibility that investigators might perceive a conspiracy before the incident or during the inspection.
As to the Philly DA’s analysis, we know only what is set out in the news coverage. The press coverage illustrates how decisions made before and during a job may later suggest bad behavior. Grand jury documents apparently indicate that jurors learned that it was inappropriate to demolish the building in the fashion done, and that the building should have been taken down by hand. According to EHS Today’s article, the piece-by-piece demolition method is expensive and time consuming, and the company had agreed to a deadline and a flat-fee contract. Any time a construction fatality occurs, you can bet that OSHA and others will look to see if the employer was rushed, over budget, exposed to penalties or otherwise had reason to cut corners. The article also notes that the contractor retained salvage rights to maximize profits. Supposedly , this is the reason for first removing all of the wooden joist holding up the floors because joist were valuable for resale. This action is described as leaving the exterior walls without sufficient support. Sandy Smith’s excellent EHS Today article proceeds to describe actions that were perceived as “shortcuts.”
OSHA has already announced citations for willful, egregious violations against one contractor and a willful violation against another employer, for over $400,000 in total penalties.
One lesson from this sad story is that employers should always treat workplace fatalities and the related OSHA inspection as potentially only the “appetizer” before future more involved legal challenges.
This case bears watching. Let us hope that this tragic event serves to prevent future similar occurrences.