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2012

OSHA—Willful Violation of a Safety Standard which Causes Death to an Employee

Title 29 U.S.C. § 666(e) provides criminal penalties for any employer who willfully violates a safety standard prescribed pursuant to the Occupational Safety and Health Act, where that violation causes the death of any employee. Four elements must be proved in order to establish a criminal violation of 29 U.S.C. § 666(e). The government must prove that: (1) the defendant is an employer engaged in a business affecting commerce; (2) the employer violated a "standard, rule or order" promulgated pursuant to 29 U.S.C. § 665, or any regulation prescribed under the Act; (3) the violation was willful, and (4) the violation caused the death of an employee.

The term "employer" is defined in 29 U.S.C. § 652(5) as "a person engaged in a business affecting commerce who has employees." The term "employer" for civil OSHA purposes generally encompasses only the employing business entity, whether it be a corporation, a partnership or sole proprietorship. See Skidmore v. Travelers Insurance Co., 356 F. Supp, 670, 672 (E.D. La), aff'd, 483 F.2d 67 (5th Cir. 1973).

For purposes of criminal enforcement, however, an individual who is a corporate officer or director, may be an "employer" within the meaning of the Act. United States v. Doig, 950 F.2d 411, 415 (7th Cir. 1991) (dicta). This is particularly the case where the officer's role in operating the company is pervasive as in the case of United States v. Cusack, 806 F.Supp 47 (D.N.J. 1992), where the company's officer ran the corporation as if it were a sole proprietorship. Although corporate officers or directors may be charged as principals, they cannot be charged as aiders and abettors under 18 U.S.C. § 2(a)(1991). See United States v. Doig, 950 F.2d at 415; United States v. Shear, 962 F.2d 488, 493-96 (5th Cir. 1992).

The employer must be "engaged in business affecting commerce." 29 U.S.C. § 652. OSHA's coverage is as broad as the commerce clause of the Constitution, and includes any employer in a business which generally affects commerce, regardless of whether that employer is actually engaged in interstate commerce. Usery v. Lacy (Aqua View Apartments), 628 F.2d 1226 (9th Cir. 1980); United States v. Dye Construction Co., 510 F.2d 78, 83 (10th Cir. 1975). The use of supplies and equipment from out of state sources is generally sufficient to show the business "affects commerce." See United States v. Dye Construction Co., 510 F.2d at 83, citing, Katzenbach v. McClung, 379 U.S. 294 (1964).

In United States v. Dye Construction, 510 F.2d 78, the only case to address the issue of what constitutes "willfulness" for the purpose of finding a criminal violation, the court concluded that 29 U.S.C. §  666(e) does not require that the government prove that the employer entertained a specific intent to harm the employee or that the employer's action involved moral turpitude. Id. at 82. Instead, the court approved the following jury instruction:

The failure to comply with a safety standard under the Occupational Safety Health Act is willful if done knowingly and purposely by an employer who, having a free will or choice, either intentionally disregards the standard or is plainly indifferent to its requirement. An omission or failure to act is willfully done if done voluntarily and intentionally.

Id. at 81. See also Consolidation Coal v. United States, 504 F.2d 1330, 1335 (10th Cir. 1974). This definition of "willfulness" has been widely adopted by the Circuits in the context of OSHA civil enforcement. See Valdak Corp. v. OSHRC, 73 F.3d 1466 (8th Cir. 1996); Ensign Beckford Co., v. OSHRC, 717 F.2d 1419, 1422 (D.C Cir. 1983), cert. denied, 104 S. Ct 1909 (1984), and cases cited therein.

Ignorance of the applicable standard is not a defense, where intentional disregard or plain indifference to the requirements of the law can be shown. For example, a company may not fail to make its supervisors on the job site aware of OSHA regulations, then plead ignorance when caught in a violation. Georgia Electric Co. v. Marshall, 595 F.2d at 320. Such conduct itself shows plain indifference to the requirements of the law. However, a defendant who pleads ignorance would be entitled to the bracketed portion of Devitt and Blackmar instructions 57b, 14.10 allowing professed ignorance to be considered on the question of intent. See United States v. McIntrye, 582 F.2d 1221, 1224-25 (9th Cir. 1978).

Indifference to general safety or to a specific hazard can also be evidence of intentional disregard of or plain indifference to the requirements of the law. See Georgia Electric Co. v. Marshall, 595 F.2d at 319-20 (indifference to employee safety); United States v. Dye Construction Co., 510 F.2d at 82 (gross indifference to the hazard). On the other hand, belief that a practice in violation of OSHA standards is safe is not a defense. Western Waterproofing Co. v. Marshall, 576 F.2d at 143; F.X. Messina Construction Co. v. OSHRC, 522 F.2d at 780. On the contrary, a defendant's substitution of his own judgment for the requirements of the standard may itself show intentional disregard of or plain indifference to the standard. See Western Waterproofing Co. v. Marshall, 576 F.2d at 143.

When there has been a prior criminal (or civil) disposition, an employer may seek to defend against a subsequent civil (or criminal) proceeding on the basis that it is barred by the Double Jeopardy Clause as a multiple punishment for the same offense. See, e.g., United States v. Halper, 490 U.S. 435, 442-50 (1989). Applying the Halper decision, the Occupational Safety and Health Review Commission recently held that OSHA's civil penalties were not punitive and thus barred by the Double Jeopardy Clause where they bore a rational relationship to the government's costs in investigating and litigating the case. Secretary of Labor v. S.A. Healy, 1995 BNA OSHD 30,719 at 642, 642-46 (on appeal to the Seventh Circuit).