Who is legally responsible for safety violations that occur on a jobsite? The Occupational Safety and Health Administration ("OSHA") can impose liability on various entities and in some cases even individuals. Increasingly, OSHA is expanding the avenues for liability, including criminal liability for individuals and civil penalties on host employers and their staffing agencies. In addition to OSHA knocking on the door, employers and the individuals who work for them may face civil liability in private lawsuits, including a variety of tort claims such as negligence and wrongful death. This paper will provide you with an invaluable legal primer of liability issues so that you know who is on the hook when it comes to workplace safety liability.

Criminal Liability under the Occupational Safety and Health Act

Title 29 U.S.C. ยง 666(e) provides criminal penalties for any employer who willfully violates a safety standard prescribed pursuant to the Occupational Safety and Health Act (the "OSH Act" or the "Act"), where that violation causes the death of any employee. The government must prove four elements in order to establish a criminal violation under section 666(e). Namely, a prosecutor must prove beyond a reasonable doubt that:

  1. the defendant is an employer engaged in a business affecting commerce;

  2. the employer violated an OSHA standard (not the general duty clause);

  3. the violation was willful; and

  4. the violation caused the death of an employee.

2 For purposes of criminal enforcement, an "employer" can be the employing business entity or an individual who is a corporate officer or director. The criminal penalty for these violations is imprisonment for up to six months and monetary penalties of up to $250,000 for individuals. For organizations, monetary penalties can be assessed up to $500,000.

In the recent past, OSHA has begun to refer more cases to the Department of Justice ("DOJ") for investigation by a U.S. Attorney and possible criminal sanctions. It is now believed that OSHA's policy is to consider a criminal referral in every case involving an employee fatality and a willful violation. Moreover, OSHA has considered more referrals to local or state prosecutors who may have more remedies available to them for criminal prosecution, particularly of individuals. There are several examples of this policy in action.

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