Any employer in New York is likely aware that OSHA can, and often does, issue monetary penalties for health and safety violations occurring at an employer’s place of business. Employers are also likely aware that in certain instances, they can even face criminal sanctions for certain actions. Under the Occupational Safety and Health Act, OSHA can and does bring criminal charges against employers when an employer’s willful violations cause an employee’s death, when the employer provides false statements on a document required by the Act, or if they provide advance notice of an OSHA inspection.Pursuant to Title 29 U.S.C. Section 666 and Section 17 of the OSHA Act of 1970, there are three separate ways an employer or individual can be criminally prosecuted. The first is a finding of a willful violation of any standard, rule, or order promulgated by Section 6 of the OSHA Act of 1970, or any regulations prescribed by the OSHA act of 1970, that causes the death of an employee.

(2) Subsequent adjustments.-For the second adjustment made under subsection (a) after the date of enactment of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, and each adjustment thereafter, the head of an agency shall adjust civil monetary penalties and shall make the adjustment notwithstanding section 553 of title 5, United States Code.The OSH Act Was Never Amended Pursuant to the Inflation Law, Fed-OSHA changed its regulations effective August 1, 2016 to include the increased penalty amounts set forth above. The new regulations specifically refer to the penalty provisions of the OSH Act, at 29 U.S.C. § 666(a). However, the OSH Act was never amended to reflect the increase found in the regulations, unlike in 1990, when Congress altered the OSH Act to provide for higher penalties.

(2) Subsequent adjustments.-For the second adjustment made under subsection (a) after the date of enactment of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, and each adjustment thereafter, the head of an agency shall adjust civil monetary penalties and shall make the adjustment notwithstanding section 553 of title 5, United States Code.The OSH Act Was Never AmendedPursuant to the Inflation Law, Fed-OSHA changed its regulations effective August 1, 2016 to include the increased penalty amounts set forth above. The new regulations specifically refer to the penalty provisions of the OSH Act, at 29 U.S.C. § 666(a). However, the OSH Act was never amended to reflect the increase found in the regulations, unlike in 1990, when Congress altered the OSH Act to provide for higher penalties.

00; (3) Serious—$7,000.00; (3) Other-than-Serious—$7,000.00. 29 U.S.C. §§ 666(a), (b), (c). These penalties were set in 1990, and they have remained that way ever since.Under this penalty structure, employers frequently argue that OSHA cites excessively varied violations following an investigation.

For more information on CPI figures and calculations, click here.[6]29 U.S.C. § 666.[7]S. 1580, 111 (2009); H.R. 2067, 111.

Primer on Fed-OSHA Criminal PowersWe’ll quote a few excerpts below from the US Attorneys Handbook because these USAs, not OSHA, ultimately make prosecutorial decisions.2012. OSHA -- Willful Violation of A Safety Standard Which Causes Death To An EmployeeTitle 29 U.S.C. § 666(e) provides criminal penalties for any employer who willfully violates a safety standard prescribed pursuant to the Occupational Safety and Health Act, where that violation causes the death of any employee. Four elements must be proved in order to establish a criminal violation of 29 U.S.C. § 666(e).

Seyfarth Synopsis: Recent involuntary manslaughter charges against actor Alec Baldwin serve as a reminder of the state criminal manslaughter liability that may result from industrial accidents. Company management and employees involved in an accident face potential criminal prosecution, prison, and hefty personal fines.The legal fallout from the unfortunate workplace fatality continues. On January 20, 2023, New Mexico state prosecutors announced they were charging actor Alec Baldwin and armorer Hannah Gutierrez-Reed with involuntary manslaughter for the death of cinematographer Halyna Hutchins on the set of the movie “Rust” in October 2021.Criminal prosecutors can base charges solely on an OSHA citation that alleges: (1) the employer violated a specific applicable standard, (2) the employer did so willfully, and (3) that the violation caused an employee’s death. 29 USC § 666(e). The Department of Labor has entered into a Memorandum of Understanding with the Justice Department for ensuring effective prosecution of criminal workplace incidents. Federal OSHA criminal liability is punishable with six months’ imprisonment, a $500,000 fine to the Company, and a $250,000 personal fine.With regard to the “Rust” shooting, New Mexico OSHA issued of a “Willful” citation for $136,793.00 for failing to adhere to the film industry’s safety bulletins published by the Industry Wide Labor-Management Safety Committee. The Citation, issued under New Mexico OSHA’s General Duty Clause, is currently under appeal. No criminal charges have been filed based solely on the Citation.As the “Rust” case illustrates, even if no criminal charges are based on the OSHA citations, state authorities may evaluate criminal charges relating to a workplace fatality. After a fatality is reported, state authorities routinely open concurrent criminal inspections. Many states (here New Mexico) then br

The employer is contesting the underlying OSHA citation and associated civil penalties, but the criminal charge was brought despite those ongoing contest proceedings.Chapter 15 of OSH Act, 29 U.S.C. § 666(e), generally creates a criminal penalty against “any employer who willfully violates” an OSHA standard and an employee dies as a result. Employers should remember though that OSHA’s mere issuance of a “willful” citation following an employee fatality is not sufficient to establish criminal liability because the willfulness of the alleged violation must still be proven “beyond a reasonable doubt” in the criminal proceedings, along with the other necessary elements.

OSHA’s Authority To Issue PenaltiesThe Occupational Health and Safety Act (“Act”), which creates OSHA, gives OSHA the authority to issue to civil penalties. 29 U.S.C. § 666(j). The amounts of the penalties increase with inflation and the maximum allowable, as of January 2018, is $129,336.00. 29 CFR § 1903.15.Assessment Of PenaltiesThe OSHA area director who signs off on the citation is charged with assessing penalties based on the following four factors:Gravity of the violation;Size of the employer;Good faith of the employer;History of violationsThese factors make intuitive sense.

[vii] Id.[viii] 29 U.S.C. § 666(e). [View source.]