Prosecuting Worker Endangerment: The Need for Stronger Criminal Penalties for Violations of the Occupational Safety and Health Act
American Constitution Society for Law and Society, Forthcoming
14 Pages Posted: 5 Sep 2008 Last revised: 22 Sep 2008
Date Written: September 2, 2008
Approximately 6000 workers are killed on the job each year - and thousands more suffer grievous injuries - yet penalties for worker safety violations remain appallingly small, and criminal prosecutions are almost non-existent. Prosecution under the Occupational Safety and Health Act (the OSH Act) is rare because the Act's substantive criminal provisions are limited to (1) willful violations of worker safety regulations that (2) result in worker death. Further, even when criminal provisions apply, the crime is only a Class B misdemeanor, which provides little incentive for prosecutors and law enforcement personnel who often have to reserve their limited resources for felonies. This article argues that Congress should pass legislation to strengthen the criminal provisions of the OSH Act early in the next Administration. First, the article describes one of the cases that prompted the Justice Department to launch a worker endangerment initiative, which exposed the inadequacy of the criminal provisions of the worker safety laws. Second, the article explains why a stronger criminal program under the OSH Act would promote greater compliance with the worker safety laws. Third, the article recommends changes to the criminal provisions of the OSH Act that would provide a more effective criminal enforcement scheme. New legislation should (1) make criminal violations of the Act felonies and provide enhanced penalties for violators; (2) expand the criminal provisions to include cases involving serious bodily injury and knowing endangerment; (3) modify the mental state requirements so that ignorance of the law is not a defense; (4) expand the scope of individual liability to include supervisors who knowingly expose their workers to unsafe conditions; and (5) provide resources to investigate and prosecute criminal violations of the OSH Act effectively.
Keywords: Worker Safety, Occupational Health, Environmental Crimes, White Collar Crime, Corporate Crime, Regulatory Crime
JEL Classification: I18, J28, K23, K31, K32, K42, L5, M14
Suggested Citation: Suggested Citation