Michaels’ Congressional Testimony Points to Discrepancies between OSHA and EPA Fines and Criminal Penalties

The Clean Air Act, the Clean Water Act, and the Resource Conservation and Recovery Act all provide for criminal prosecution for knowing violations of the law, and for knowing endangerment that places a person in imminent danger of death or serious bodily harm, with penalties of up to 15 years in jail. There is no prerequisite in these laws for a death or serious injury to occur. Other federal laws provide for a 20-year maximum jail sentence for dealing with counterfeit obligations or money, or mail fraud; and for a life sentence for operating certain types of criminal financial enterprises.

“It defies logic that serious violations of the OSH Act that result in death or serious bodily injury are treated as lesser crimes than insider trading, tax crimes, customs violations and anti-trust violations,” said Michaels.

The Miner Safety and Health Act would amend the criminal provisions of the OSH Act, as it would also amend the Federal Mine Safety and Health Act, to change the burden of proof from “willfully” to “knowingly.” Specifically, Section 706 states that any employer who “knowingly” violates any standard, rule, or order and that violation caused or contributed to the death of any employee is subject to a fine and not more than 10 years in prison.

Increase OSH Act Protections for Whistleblowers

Michaels also took note of provisions in the Miner Safety and Health Act that would protect whistleblowers who speak out against unsafe working conditions. The OSH Act was one of the first safety and health laws to contain a provision – 11(c) – for protecting employees from discrimination and retaliation when they report safety and health hazards or exercise other rights under the OSH Act. That provision now is one of the weakest whistleblower provisions in any federal law.

The Miner Safety and Health Act strengthens whistleblower protections for workers in both mining and general industries. It makes explicit that a worker may not be retaliated against for reporting injuries, illnesses or unsafe conditions to employers or to a safety and health committee, or for refusing to perform a task that the worker reasonably believes could result in serious injury or illness to the worker or to other employees.

Additionally, the act increases the existing 30-day deadline for filing an 11(c) complaint to 180 days, bringing 11(c) more in line with most of the other whistleblower statutes enforced by OSHA. In addition, the Miner Safety and Health Act amends section 17(j) of the OSH Act to include an employer’s history of violations of section 11(c) as a consideration in assessing civil penalties.

Victims’ Rights

The Miner Safety and Health Act would place into law, for the first time, the right of a victim (injured employee or family member) to meet with OSHA, to receive copies of the citation at no cost, to be informed of any notice of contest and to appear and make a statement during settlement negotiations before an agreement is made to withdraw or modify a citation.

The act also requires the secretary to designate at least one employee at each OSHA area office to serve as a family liaison, similar to the program already in existence at MSHA. The OSHA family liaisons would keep victims informed of the status of investigations, enforcement actions and settlement negotiations, and assist victims in asserting their rights.

Hazard Abatement During the Contest Period

One of the most significant changes that the Miner Safety and Health Act makes to the OSH Act is the provision that requires abatement of serious, willful and repeat hazards during the contest period. Currently, if an employer contests an OSHA citation, that employer is not obligated to correct the hazard during the administrative contest period, leaving workers exposed to serious or deadly hazards for months or years after the hazards have been identified.

“The lack of any requirement for employers to abate hazards during the contest period also seriously undermines the effectiveness of OSHA’s already low penalties,” said Michaels. He added that OSHA is pressured to negotiate away penalties in order to avoid employer contests and ensure that hazards quickly are fixed.

The alternative can be a lengthy contest proceeding, some lasting a decade or more. A recent OSHA analysis found that between FY 1999 and FY 2009, there were 33 contested cases that had a subsequent fatality at the same site prior to the issuance of a final order. The Miner Safety and Health Act would enable OSHA to issue failure to abate notices to a workplace with a citation under contest, which would carry a penalty of up to $7,000 for each day the hazard goes uncorrected, which should serve as motivation for employers to abate hazards.

“Clearly, OSHA can never put a price on a worker’s life and that is not the purpose of penalties – even in fatality cases,” Michaels acknowledged. “By giving OSHA the authority to require abatement during contest, we not only ensure that workers are protected immediately but also can hold employers accountable for keeping a safe and healthful workplace. We must not forget that the stronger the message OSHA sends, the better the deterrence and more lives are saved.”