• Criminal Prosecution under the Occupational Safety and Health Act
  • July 29, 2009 | Author: Michael Robert Lied
  • Law Firm: Howard & Howard Attorneys PLLC - Peoria Office
  • Employers do not typically think about the possibility of criminal liability under the Occupational Safety and Health Act (“Act”).  However, Section 17(e) of the Act punishes any employer convicted of willfully violating any standard, rule, order or regulation prescribed pursuant to the Act, if that violation caused an employee’s death.  Upon conviction, the violator can be sentenced to a fine of not more than $10,000 or imprisonment for not more than six months, or both.  A second conviction may result in a fine of not more than $20,000, imprisonment for not more than one year, or both.  A willful violation exists where evidence shows either an intentional violation of the Act or plain indifference to its requirements.  It is not necessary that the violation be committed with a bad purpose or an evil intent to be deemed willful.  It is enough that the violation was deliberate, voluntary or intentional as distinguished from inadvertent, accidental or merely negligent. 

    The Obama administration has signaled an increased emphasis on enforcement in a variety of employment and labor related areas.  One hundred and thirty new inspectors will be hired.  Recently, Jordan Barab, the Acting Assistant Secretary for the Occupational Safety and Health Administration (“OSHA”), told a House Subcommittee that OSHA will be implementing a new program to identify and inspect employers with egregiously poor safety records.  The program, called the Severe Violators Inspection Program, will entail a detailed revision of the existing Enhanced Enforcement Program and will focus on large employers.  Barab indicated that OSHA is considering mandatory follow-up inspections, more inspections of other locations of an identified company, additional provisions relating to settlements, and a review of the employer’s history to identify any systemic issues which could lead to additional inspections.

    In a recent case, an employer escaped, for the time being, liability for a willful violation, based on faulty jury instructions.

    L.E. Myers had a longstanding contractual relationship with ComEd to perform maintenance and repair work on ComEd’s power transmission network in the Chicago area.

    Electrical transmission towers typically have six energized power lines.  A static wire runs above the power lines on each side and acts as a lightning rod.  A static wire usually will not have any insulator between itself and the tower.  It is a grounded “dead” wire.  ComEd asked L.E. Myers to perform emergency service on Tower 97 in Mt. Prospect, Illinois.  The pin holding the static wire on the east side of the tower was loose.

    The L.E. Myers crew arrived at Tower 97 and briefly discussed the work to be done.  Foreman Darin West did not read ComEd’s construction specifications.

    West sent Blake Lane to check the west-side static wire.  West told Lane not to touch the static wire—but not because he believed that it was energized.  Lane accidentally touched the energized west-side static wire and was electrocuted.

    About three months later, Wade Cumpston, a journeyman linesman, was part of an L.E. Myers crew replacing insulators on another set of transmission lines.  The wires on the side where the crew was working had been de-energized, but the wires on the other side had not.  Deenergized wires can sometimes become energized by induction from high voltage in the energized wires.  Therefore, the crew was required to use grounding cables.

    The crew complained to the foreman that the grounding cables were too short.  Nevertheless, the linemen replaced two insulators without incident using the grounding cables they thought were too short.  As they removed the grounds from the next insulator, Cumpston and another member of the crew were zapped.  Cumpston was killed.

    L.E. Myers was charged under 29 U.S.C. § 666(e) with two counts of willfully violating numerous OSHA regulations, related to the deaths of Lane and Cumpston.  There was a jury trial before a magistrate judge.

    The government’s proposed jury instructions told the jury that as to each of the two counts, the government must prove that at least one willful violation of an OSHA regulation caused the death of an employee.  The instructions went on to define “willful” as follows:

    A violation of an OSHA regulation or safety standard is willful if the employer had actual knowledge that its actions did not comply with the regulation or standard and the employer intentionally disregarded the requirements of the regulation or standard or was deliberately indifferent to those requirements.  The employer need not have acted maliciously or specifically intended to harm its employees.

    The instructions also defined the “actual knowledge” of a corporation as follows:

    In deciding whether the defendant corporation acted knowingly, you must consider that a corporation can act only through its employees and agents.  Accordingly, knowledge obtained by the corporation’s employees acting within the scope of their employment that concerns a matter within the scope of their employment is knowledge possessed by the corporation.  Once a corporation acquires that knowledge, it remains with the corporation even if the employee is no longer employed by the corporation, if the knowledge is of continuing importance to the business of the corporation.

    In addition, the government asked for a “conscious avoidance” instruction (sometimes called an “ostrich instruction”).  The ostrich instruction permitted the jury to infer knowledge from a “combination of suspicion and indifference to the truth.” 

    The jury found L.E. Myers guilty on the count involving Lane’s death, but not the death of Cumpston.  The magistrate judge imposed a sentence of three years’ probation and a fine of $500,000.

    L.E. Myers moved for a new trial.  The magistrate judge denied the motion.  L.E. Myers appealed to the district court.

    The district court held that the jury instruction on corporate knowledge improperly omitted the requirement that the employee acquiring knowledge of a hazard must also have a duty to report the hazard up the corporate chain for the employee’s knowledge to be considered the corporation’s.  In addition, the court held that the evidence did not support the magistrate judge’s decision to give the ostrich instruction.  Even so, the court concluded that these instructional errors were harmless.  L.E. Myers appealed again.

    As noted above, the Act punishes employers who willfully violate any standard, rule, or order promulgated by OSHA if that violation caused an employee’s death.  The appeals court had previously discussed the “willfully” requirement, holding that it is synonymous with “knowingly” and thus requires awareness of the essential facts and applicable legal requirements.  The employer must have actual knowledge of both the hazardous condition and associated legal obligations. 

    L.E. Myers argued that the corporate-knowledge jury instruction was inaccurate because it contained no reference to the requirement that the employee who acquires knowledge of the safety hazard must have a duty to report that knowledge to the company for his knowledge to be deemed the corporation’s knowledge.  The court agreed.

    L.E. Myers also argued the magistrate judge should not have given the ostrich instruction.  The appellate court accepted this argument.  The ostrich instruction is appropriate only when it addresses an issue reasonably raised by the evidence.  It is appropriate where the actions of the defendant and the surrounding circumstances indicate that the only way the defendant could not have known of the illegal activity is by affirmatively avoiding the knowledge.

    The court of appeals noted that evidence that a defendant reasonably should have had strong suspicions about the illegality is not sufficient to support the ostrich instruction.  There must be evidence that the defendant took steps to make sure that he did not acquire full or exact knowledge of the nature and extent of the illegal activity.  Failing to display curiosity is not enough.

    Here, the government offered no evidence that any L.E Myers employee took deliberate steps to avoid learning the truth.  Accordingly, it was error to give the ostrich instruction.

    The court of appeals reversed the district court and remanded for further proceedings.  United States of America v. L.E. Myers Company, 562 F.3d 845 (7th Cir. 2009).