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.
On July 17, 2018, the U.S. Court of Appeals for the Eighth Circuit affirmed a verdict that had found an employer criminally liable for an employee's fatal fall. Declining to overturn the lower court's decision, the three-judge panel found that prosecutors presented sufficient evidence to support the company’s conviction for willfully violating safety regulations and causing the worker’s death. The court of appeals also affirmed the trial court’s imposition of a $500,000 fine.1 While it is uncommon for employers to receive the maximum statutory penalty for OSHA violations, this case should serve as a reminder that significant criminal and financial penalties can result from OSHA citations.
An ironworker for a steel erection company died four years ago after he fell nearly 40 feet while working at the construction site of a 300,000 square foot warehouse in Kansas City, Missouri. The ironworker's employer was a subcontractor on the project. Following the accident, OSHA’s investigation determined that while the worker was wearing the required harness and connectors, he was not connected to an anchorage point as required under OSHA regulations. OSHA cited the subcontractor for several serious violations including improper use of scaffolding,2 failure to inspect fall arrest systems,3 and failure to train employees exposed to fall hazards.4 OSHA also alleged several willful violations of failing to protect employees from fall hazards.5 OSHA initially proposed penalties of $21,000 for the serious citations and $490,000 for the willful citations.
During the bench trial, the subcontractor was convicted of a Class B misdemeanor for willfully violating OSHA safety regulations and for causing the worker's death. At sentencing, the judge imposed the statutory maximum $500,000 fine.6 During the trial, exhibits and testimony established that the worker’s supervisor – and thus the subcontractor – knew of the safety standards and that the worker was not using his safety equipment. Other evidence further suggested that the subcontractor’s failure to ensure the worker used his equipment properly was knowing rather than accidental, and that his supervisor intentionally flouted safety requirements.
On appeal, the subcontractor argued also that the trial court erred in admitting a variety of “other-acts” evidence. The company argued that evidence admitted of other violations it committed at the construction site, and other violations from 2007 and 2015 that occurred at other sites, was irrelevant and prejudicial to its defense.
Judge Raymond Gruender, writing for the appellate court, rejected this argument, and found that the information was properly admitted because it established the company’s knowledge and intent, prior safety violations, and details about the work site where the worker fell. The court of appeals concluded that because the supervisor’s knowledge could be imputed to the company itself, sufficient evidence supported the court’s conclusion that the company committed a willful violation. The court of appeals also affirmed the $500,000 penalty imposed by the trial court, despite the company's arguments it could not pay the fine.
Why is this Case Significant?
Although this case is a rare example of employers receiving the maximum statutory penalty for OSHA violations, employers should take proper notice of the substantial risk of both financial penalties and criminal liability that may arise from violations of workplace safety requirements. This risk is significant when there exists substantial witness testimony that supervisors knew of hazardous safety conditions but took no corrective action.
1 United States v. DNRB, Inc., No. 17-3148 (8th Cir. July 17, 2018).
2 29 CFR 1926.451(f)(14).
3 29 CFR 1926.502(d)(21).
4 29 CFR 1926.761(b).
5 29 CFR 1926.451(g)(1), 1926.453(b)(2)(iv), 1926.760(a)(1).
6 See 18 U.S.C. § 3571(c)(4).