It now appears that OSHA is making a significant reform that could help improve its record of criminal enforcement. According to a Department of Justice (DOJ) official, however, there are other significant obstacles to prosecution that neither OSHA nor DOJ can easily change.
The agency is now preparing to teach its compliance officers how to do criminal investigations of workplace fatalities at the OSHA Training Institute. "Currently our inspectors are trained to do only civil investigations," said Richard Fairfax, director of OSHA's enforcement program. "Criminal cases require much more evidence than our typical civil cases to document willfulness." Fairfax says he aims to have two people in each OSHA area office who will be trained to handle criminal investigations.
Ron Hayes, founder of the FIGHT Project, an organization for family members of workers killed on the job and a frequent critic of OSHA, welcomed the news.
While OSHA does not refer the vast majority of willful violation fatality cases to the Department of Justice (DOJ) for criminal prosecution, DOJ drops most of the cases OSHA does refer. Hayes believes that botched OSHA investigations explain the figures revealed in the Times series and are also one reason the Justice Department declines so many OSHA cases.
"If trained properly, compliance officers would not mishandle these investigations," Hayes contended. "And we'd get a twofold kicker because then they wouldn't hurt families, as they do now, by falsely promising the survivors they will put those responsible for the fatality in prison."
A Justice Department official cautioned, however, that there are other impediments to criminal prosecution of OSHA cases. Criminal cases demand proof 'beyond a reasonable doubt,' whereas a civil conviction requires only a 'preponderance of the evidence.'
"People have to understand the OSH Act was not designed for criminal prosecution," he explained. "And OSHA standards are not drafted with the specificity we often need to prove a case beyond a reasonable doubt."
The official added that "there is a lot of input from industry" in the drafting of OSHA standards, so it is not the agency's fault that the regulations are written so as to make criminal prosecution difficult. It can also be difficult to convince a jury a defendant violated a regulation "willfully" because the notion of willfulness is a state of mind that can only be induced indirectly from a person's behavior.
"We have to show knowledge of the hazardous condition, the application of the regulation, and the failure to correct it," explained the official. A willful violation is not the same as an intentional killing, because that would be murder. The notion of willfulness therefore appears to exist in a somewhat fuzzy middle ground between ignorance of safety rules and homicide.
Finally, because a criminal prosecution 'turns the defendant's life upside down' and consumes scarce government resources, the Department of Justice does not prosecute cases unless it believes it will prevail in court.
Evidently, this is a judgment the Department of Justice rarely makes in OSHA cases. Since 1982, DOJ dropped 57 percent of the cases OSHA referred to the department for criminal prosecution and in another 25 percent defendants settled with the government before a trial and did not go to prison.