Employers are guided by OSHA Act(1970) in ensuring that they provide the best and safest workingconditions for their employees. Violation of this Act can lead tocriminal proceedings in the Department of Justice. Any action thatrisks the life or health of an employee while the boss is aware ornegligently allows his/her employees to work under such conditionsamounts to a criminal violation.
In any case an accident occurs ina facility and leads to death, various issues that might have causedthe death are cited. In reference to Acme Widget Factory, thefollowing citations would be considered to be forwarded to theDepartment of Justice: Citation 2 Item 1, failure to check whetheremployees were exposed to lead fumes and failing to take air samplesfor lead sampling. Citation 2 Item 2a, 2b letting employees work inareas with potential risk, failure to train employees who work withlead alloys and areas with potential exposure.
Citation 2 Item 3a, 3b failingto develop a written plan or program that guides the employees on howto handle themselves when dealing with poisonous compounds such aslead, acetone, sulfuric and methyl ethyl ketone. The willfulcitations in Acme Widget Factory penalty notification can beforwarded to the DOJ as they amount to criminal violations.
To determine cases that areliable for presentation before the DOJ, the Area Director and RSOLdiligently examine the cases that could lead to an employee’s deathand probe for criminal violations. Evidence to be forwarded to DOJregarding a fatality that happened in a facility has to be thoroughlychecked. It will require the efforts of CSHO, RSOL, Area Director andRegional Administrator to develop sound evidence for such cases. Itmust be proved that the employer violated OSHA standards risking thelife of the employee thus leading to death. Also, during theinvestigation, if CSHO have intentions to refer citations to the DOJ,they should inform the employer.
Consequently, when a criminalproceeding has been recommended, the Area Director should send amemorandum to the Regional Administrator. The memo should have allpossible criminal charges and prove beyond reasonable doubt. Also, ifthere are issues about hazards correction, the questions should beput down in transmittal memo. Subsequently, a civil citation shouldbe issued even when the citation is being considered for criminalprosecution and Regional Director notified of it. Then the caseshould be forwarded to RSOL for potential referral to the DOJ.
If there is a successful courtcase against the employer on violation of Section 6 of OSHA Act 1970the Act provided that the boss faces a maximum penalty of 10,000dollars or six month’s incarceration or both. But, if the case wasa repeated violation after conviction, the employer would be liablefor a maximum fine of 20,000 dollars or confinement for one year orboth.
That was the case beforeSentencing Reform Act of 1984 changed the maximum sentences.Currently, an individual will be liable to pay a penalty of up to250,000 dollars. The terms of incarceration remain as they were (Chao& Henshaw, 2002). The individual can be the employer,departmental manager or site overseer. The liability falls on theperson who had the responsibility to protect, educate or train andensure safety standards are maintained at the facility according toOSHA.
On the other hand, willfulviolation attracts a fine of 500,000 dollars if the employer is acorporation, or imprisonments for six months or both. A secondconviction will probably double the jail term (Chao & Henshaw2002).
The best defenses under the lawhave been acts of God or nature, contributory negligence, privity tocontract, and exercise of duty with reasonable care. The defense ofreasonableness applies where the defendant can prove to the courtthat he carried out his duties as provided by law and there was nobreach of duty to care. The argument can be supported by proving thatthe defendant adhered to OSHA Act section 6 standards and any otherstandard that is necessary for safeguarding the employees’ healthand safety.
The reasonableness defense opensup loophole for other defenses such as contributory negligence,privity to contract and acts of God or nature. Under contributorynegligence, the defendant can prove that the death was caused due toa negligent action of the employee. Any reasonable person would haveforeseen the action and avoided the cause of mortality at a personallevel (Koffman & Macdonald, 2010).
Also, the defendant can provethat the contract did not bind him. The defense is usually appliedwhere the defendant can show the death resulted out of somebodyelse’s contractual obligation and he was not a party to it.Finally, the defendant can show that the cause of accident resultedfrom something that he/she had no control of, such as an earthquakeor a hurricane (Koffman & Macdonald, 2010).
An employer can get theproceeding of the court from OSHRC and if there is any issue ofcontention, the defendant can file a review of the case and appealthrough OSHRC.
References
Chao, E. L., &Henshaw, J. L. (2002). OSHA 2098. OSHAInspections. Retrievedfrom https://www.osha.gov/Publications/osha2098.html
Koffman, L., &Macdonald, E. (2010). Thelaw of contract. NewYork, NY: Oxford University Press.
Occupational Safety & HealthAdministration. (1970). OSHA Content Document. Retrieved fromhttps://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=OSHACT&p_id=3360
Occupational Safety & HealthAdministration. (1970). OSHA Content Document. Retrieved fromhttps://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=OSHACT&p_id=3371
Occupational Safety and HealthAdministration. (2011). FieldOperations Manual.Retrieved fromhttps://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-159.pdf
United States SentencingCommission. (1995). 1995 Guideline Manual. Retrieved fromhttp://www.ussc.gov/guidelines-manual/1995/1995-appb227
US Department of Labor. (2015).Citation andNotification of Penalty,1-29.