Introduction 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. § 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: the defendant is an employer engaged in a business affecting commerce; the employer violated an OSHA standard (not the general duty clause); the violation was willful; and 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.

St. John's University was fined $3600 because they failed to monitor hazardous gases in a manhole. They also failed to ventilate the tunnel where a worker died and they failed to have an emergency evacuation system. It cost Michael Angelo's Gourmet Foods Inc. of Austin, Texas $140,220 in penalties due to citations issued for not providing employees with adequate protection or training to prevent machinery start-up during cleaning operations. This follows two inspections since 2000 and more than $63,000 in penalties for similar violations. The downside is that a worker was killed last June when he was pulled into a meat mixer. OSHA cited ConAgra Foods Refrigerated Foods Co. for failing to protect workers from electrical hazards following an investigation of a worker's death July 8 at the company's Montgomery, Alabama processing plant. The agency is proposing penalties totaling $92,000. OSHA issued one willful citation, two serious, and one repeat citation. In 1994, Chmielewski, the owner of Protech Construction Company, was cited by OSHA for several safety violations at an Illinois work site. One charge -- the failure to install a protective guardrail on a scaffold -- was characterized by OSHA as a willful violation. OSHA proposed a penalty of $35,000 for the willful violation and $4,500 for additional violations. Chmielewski then twice offered $1,000 cash bribes to OSHA officials to get out of the $35,000 willful violation charge. In November 1998, he pled guilty to one count of bribery and was sentenced to six months in jail and six months home confinement.* Employees of MIT Tank Wash, a tank cleaning company in Savannah, Ga., were required to clean fuel out of the tanks -- including a hazardous fuel additive, fleurodyne FD-100, that requires a special, poisonous solvent. Violating OSHA regulations, MIT's employees routinely cleaned tanks alone. On May 11, 1993, an employee entered a tank alone, quickly became disoriented, and died from the toxic fumes. Owner Robert Swing had previously been warned by OSHA to buy proper safety equipment -- including a retrieval system to rescue workers -- but he hadn't. In June 1995, Swing pled guilty to a willful violation of OSHA regulations, and was sentenced to six months in jail, one year probation, and a $190,000 fine.* Smith and Dennis were the owners of South East Towers, a South Carolina communications tower company. One of their employees was killed in 1995 when he fell 150 feet while retrieving equipment from a tower in Jacksonville, Fla. According to OSHA, the two men tried to cover up the fact the employee was not wearing the proper safety equipment when he fell. Smith and Dennis pled guilty to a willful violation in April 1997 and each was sentenced to three months in prison. The two men were also ordered to pay more than $7,300 restitution for the employee's funeral. *