By Adam R. Young, Mark A. Lies, II, A. Scott Hecker, Patrick D. JoyceJames L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: While the Solicitors at the Department of Labor (DOL) only litigate civil OSHA citations, DOL has announced enhanced coordination with criminal law enforcement for employers’ representatives in fatality cases. Criminal matters often involve highly resource intensive work that involves safety managers, operations managers, and executives.

Under the Occupational Safety and Health Act, OSHA has the power to refer employers to the United States Department of Justice for criminal enforcement. Penalties include up to six months in federal prison and up to a $250,000 personal fine. The agencies review all cases where there is an alleged willful violation resulting in a fatality for potential criminal enforcement. Accordingly, all employers should evaluate and prepare for criminal exposure following any fatal accident, even if it may not initially appear work-related.

In her FY2023 Enforcement Report, Solicitor of Labor Seema Nanda noted “enhanced criminal enforcement coordination” to criminally prosecute managers who commit willful OSHA violations. Solicitor Nanda’s report provided recent representative examples, including a recent case against ALJ Home Improvement, Inc. and its owner. This roofing contractor allegedly had a history of OSHA citations, with more than two-dozen willful OSHA citations between 2019 and 2023, “including willful egregious fall protection citations” in 2022 and 2023. During this period, two of ALJ’s workers died after falling on the job. In 2023, “the U.S. Attorney for the Southern District of New York charged [ALJ’s owner] for willfully violating OSHA regulations following a criminal referral from OSHA.” During the criminal referral to DOJ, DOL has continued to litigate civil citations against ALJ and its owner individually, obtaining an administrative settlement and a district court consent injunction that requires ALJ and its owner “to comply with a series of enhanced compliance measures to ensure employee safety.” The injunction also makes clear that ALJ’s “practice of allowing its employees to work without fall protection poses an imminent danger of death or serious harm.”

Nanda also noted that DOL and OSHA are using criminal contempt as a tool to hold employers accountable for not complying with the laws that DOL enforces. In one case, a Nebraska roofing contractor received multiple OSHA citations for serious safety violations, including failure to use fall protection. According to the Enforcement Report, “after these citations became final orders, SOL filed a petition for the Department in the Eighth Circuit Court of Appeals, pursuant to section 11(b) of the OSH Act, to enforce the orders.” Section 11(b) allows DOL to seek court intervention to enforce abatement of violations and provisions in settlement agreements, and can allow for a finding of contempt of court if an employer does not comply. The Eighth Circuit granted the petition and ordered the contractor to comply.

Following the Nebraska contractor’s failure to comply with the court’s order to abate safety violations, SOL filed a motion to hold him in contempt. The Eighth Circuit granted the motion, and concluded that the contractor was in contempt. In September 2023, after the contractor continued to ignore the Court’s order, a Special Master appointed by the court ordered him to be brought into custody after he failed to appear at a hearing regarding the appropriate penalties and sanctions to ensure compliance with the final orders. “The Court released the contractor from custody only after he agreed to an interim plan to cease and desist all business operations until a compliance plan was entered.” Ultimately, the parties agreed to a compliance plan that would ensure the contractor’s compliance with the Eighth Circuit’s final orders as well as his future compliance, which the court accepted as resolution of the contempt Order.

Employers must protect the safety and health of their employees. In the event of an unfortunate fatality at work, including from a presumed personal health condition, employers should get counsel on the phone immediately. They must be especially vigilant to preserve evidence, protect privileges, and manage the impending OSHA inspection. Managers should be prepared and defended by counsel in their interviews with OSHA, as they face potential criminal liability and prison time if the agency chooses to issue willful citations.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Environmental Team.