Subcommittee Holds Hearing on PAWA's Penalty Provisions

On Tuesday, the Workforce Protections Subcommittee of the House Education and Labor Committee held a hearing on the penalty provisions contained in the Protecting America’s Workers Act (PAWA) (H.R. 2067), introduced by Rep. Lynn Woolsey (D- CA), chair of the subcommittee, last April. A companion bill (S. 1580) was introduced in the Senate by the late Sen. Ted Kennedy (D-MA) in August 2009. This bill would amend the Occupational Safety and Health (OSH) Act by expanding its coverage, increasing whistleblower protections, and enhancing employer penalties for violations, among other significant changes.

With respect to the penalty provisions under PAWA, the minimum civil penalty for willful violations would increase from $5,000 to $8,000, and the maximum penalty would increase from $70,000 to $120,000. For serious violations, the maximum penalty would increase from $7,000 to $12,000. The legislation would also create a new penalty structure that would range from a minimum of $50,000 ($25,000 for small employers) to a maximum of $250,000 for a worker’s death caused by a repeat or willful violation. A death caused by a serious violation would result in a penalty ranging from $20,000 ($10,000 for small employers) to $50,000. In addition, PAWA would remove the requirement that a workplace death must occur before criminal penalties can attach, as well as providing for felony charges as a result of an employer’s repeated and willful violations which result in a worker’s death or serious injury. Criminal penalties would increase from a minimum of six months in prison to 10 years for a first offense and from a maximum of one year to a maximum of 20 years for repeat offenses. If a willful violation causes serious bodily injury but does not cause death, criminal penalties may include imprisonment for up to 5 years for a first offense, and 10 years for a repeat violation.

In her opening statement, (pdf) Rep. Woolsey claimed that “it is clear that without a change in the penalty structure of the statute, they will never be high enough to be an effective deterrent, especially for those employers who are repeat violators.” She further noted that:

PAWA also makes needed changes to the criminal penalties, including making top management liable for criminal misconduct. Under current law, only corporations and not corporate officials, can be criminally liable for willful violations, and this liability is limited only to cases where a worker has died. . . . PAWA changes that: employers – including top executives – can serve up to 10 years in jail for criminal behavior, which causes the death or serious injury of a worker.

David Michaels, Assistant Secretary of Labor for the Occupation Safety and Health Administration (OSHA), testified (pdf) that “serious violations of the OSH Act that result in death or serious bodily injury should be felonies like insider trading, tax crimes, customs violations and anti-trust violations.” He also emphasized that the Act would amend the OSH Act to change the burden of proof from “willfully” to “knowingly,” and lauded PAWA’s expansion of potential criminal liability to any responsible corporate officer or director, and coverage to include all public employees, among other provisions.

Not surprising, witnesses John Cruden, (pdf) Acting Assistant Attorney General of the Department of Justice’s Environment and Natural Resources Division, and Eric Frumin, (pdf) Health and Safety Coordinator for Change to Win, also endorsed PAWA’s tougher criminal and civil penalties.

In contrast, Jonathan Snare, an attorney speaking on behalf of the U.S. Chamber of Commerce, testified (pdf) that PAWA would have “unintended consequences and may not achieve” the intent behind the bill. Specifically, Snare claimed that PAWA’s revision of the OSH Act with enforcement-only sanctions “appears to be driven by the conduct of the few outlier employers who fail in their workplace safety and health obligations,” adding that the proposed increase in penalties “will do nothing to assist employers to understand their obligations for workplace safety and health, such as the small business owner who is trying to understand how to comply with applicable requirements.”

Snare also criticized PAWA’s requirement that an employer immediately abate hazards pending contests of citations, which he claims “will reduce or eliminate the ability of an employer to challenge a citation through the [Occupational Safety and Health Review Commission] administrative process by requiring immediate abatement.” Such a requirement, he testified, would be akin to “asking a criminal or civil defendant to pay a fine or serve a sentence before the trial is held.”

Criticism was also directed at PAWA’s expanded whistleblower requirements and modification to the level of intent necessary for the imposition of criminal penalties from the current “willful” to “knowing.” Such a change, Snare testified, would “upend decades of OSHA law.” Snare suggested increasing OSHA’s compliance assistance, outreach, and training would better serve to prevent workplace injuries than after-the-fact penalties. 

Photo credit: Matt Collingwood

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.