Proposed OSHA Legislation – Go Directly to Jail
The Protecting America’s Workers Act
By Clyde H. Jacob III, Director
Coats Rose – New Orleans
Winding its way through Congress is the most significant and dramatic piece of legislation to change the Occupational Safety and Health Administration (OSHA) since the passage of the original Act in 1970. Changes to the Protecting America’s Workers Act propose a remarkable escalation in enforcement and penalties under OSHA, including criminal penalties. In general, the legislation proposes to increase civil and criminal penalties, significantly change the whistleblower structure, mandate immediate abatement, and expand victim’s rights.
For criminal penalties, the law proposes to change the intent necessary from the current “willful” to “knowing,” and there is no definition of this standard in the legislation. Also, a change from “any responsible corporate officer” to “officer or director” will expand potential liability, making corporate personnel subject to prosecution when they have no involvement in day to day operations. Corporate employees will feel that any decision they make on a jobsite could lead to their prosecution.
The whistleblower provisions of the law are expanded to cover an employee who has simply a “reasonable apprehension” that a particular job duty would result in serious injury. That employee would be protected from refusing to perform that job function. Employees would be allowed to recover against the employer their attorney’s fees and costs if they are successful.
The proposed law would impose mandatory abatement, reducing or doing away with the ability of an employer to challenge the citation through the administrative process. One commentator has said that mandating abatement before allowing the employer to exhaust its adjudicated process would be like asking a criminal or civil defendant to pay a fine or serve a sentence before the trial is held.
Expanding victim’s rights, the law would allow a worker who has suffered a workplace injury or a family member, if that employee was killed or unable to exercise his right, to make a statement before an administrative law judge at the Occupational Health and Safety Review Committee (OSHRC) for those cases which have been contested. Further, the employees or their family members can make presentations to the U.S. Department of Labor (DOL) and must be kept informed of the investigation and any citations issued. If there are any modifications in the citations or settlement negotiations, they can object to such modifications or settlements.
The current civil penalties for OSHA violations would be increased. For example, proposed is the elimination of the $50,000 cap on penalties for fatalities under “other than serious” violations.
The Protecting America’s Workers Act would change OSHA more significantly than any modification since its passage in 1970. Diminished are the agency’s outreach and support programs to assist employers, particularly small employers. The threat of going to jail becomes a real possibility for “any officer or director.”
Stay tuned to this legislation because it could become law before the 111th Congress adjourns.