|Type of paper:
|United States Business Criminal law Penal system Social issue
The facility received a notice of citations and penalties from the OSHA due to workplace safety violations. The notice outlined numerous penalties and citations. Assuming that a fatality happened at the facility one month before the OSHA inspections, citations that caused such fatality could be referred to as the United States of Justice (U.S DOJ) (Campbell, 2020). Therefore, fines for violations are usually based upon whether the violation was serious, less than serious, repeat, or willful. Violations that can cause a worker’s death may be referred to the United States DOJ for criminal prosecution. This paper outlines the citations that could be referred to the United States DOJ for criminal proceedings.
Citations That Could Be Referred to the U.S. DOJ for Criminal Proceedings
The violation examined in Citation 1 Item 1a and Citation 1 Item 1b could have induced the fatality. Citation 1 Item 1a was a serious violation; exposure levels to lead fumes in the frame assembly area were not kept below the standardized permissible exposure level (PEL) during welding operations. A MIG welder (an employee) in the frame assembly section was exposed to lead at an 80 µg/m3 to 100 µg/m3 airborne time-weighted average (TWA), nearly two times the permissible exposure limit (PEL) of 50 ug/m3 (Michaels, 2015). Citation 1 Item 1b was also a serious violation. Despite that, the MIG welder was exposed to lead above the permissible exposure limit; by the time OSHA inspection was conducted, the engineering controls had not been implemented to reduce overexposed lead exposure to employees. Engineering controls that are most effective in these cases may include modifying the current ventilation system to better capture velocity at the ventilation hoods and modifying ventilation hoods to better collect metal fumes. These two Citation 1 items 1a 1nd 1b could be referred to the United States DOJ for criminal proceedings.
Conditions That Would Have To Be Met Before the Citations Could Be Referred for Criminal Proceedings
The citations could be referred for criminal proceedings if the organization failed to submit a notice of abatement or contest or failed to request an informal conference within 15 working days of receiving the citation and penalties notice. Within these 15 days of working, the company could abate all risks or record an informal conference with relevant OSHA authorities to evade criminal proceedings.
Individuals Working At a Facility Could Face Criminal Charges under the OSHA ActUnder the OSHA Act, the agency can make criminal charges against an employer and some employees due to willful OSHA violations that caused an employee fatality. Employers and employees, including plant managers, human resources managers in charge of safety, maintenance supervisors, and even plant engineer can face criminal sanctions, including fines and jail term (McGarity et al., 2010).
Maximum Prison Sentence and Fines That Any Individual or Company Would Face
There are such strict limitations placed on criminal penalties under the OSHA act. A serious violation is when an employer and the management know of or should know of circumstances with a definite risk of causing serious injury or death but do not remedy it. OSHA issues a serious violation penalty of up to $7,000 for every serious violation; however, they can adjust penalties based on the seriousness of the particular violation, the business’s size, the employer’s previous history, and the good faith of the employer (Brenson, 2017).
A willful violation is the most serious violation category, and it is perceived as intentional violations of OSHA laws or circumstances that show disregard for worker’s health and safety. The minimum fine for any willful violation is $5,000, while the maximum penalty is $70,000. In a case where a fatality causes an employee death, the violation becomes a criminal offense that may attract a minimum fine of $250,000 and $500,000 for an individual and corporation, respectively. An individual convicted of a fatal willful violation may also face imprisonment for up to six months (Brenson, 2017).
An Employer Best Defense
Numerous substantive and procedural legal defenses exist to narrow liability in the unfortunate situation that an employer or organization receives an OSHA citation and penalties. Of the substantive defenses, the most effective defense is referred to as the “unpreventable employee misconduct” defense (Brenson, 2017). If successful, it may result in the outright dismissal of the OSHA citation and penalties. The concept is that an employer or a facility, who otherwise maintains sufficient safety procedures within the workplace, should not be penalized for a violation because of an isolated incident of employee mischief that was unpreventable and not anticipated to happen again. However, the agency uses a four-part test to assess the strength of this defense. Therefore, to invoke it, an employer must prove that it has established work rules created to limit the violation, appropriately communicated such rules to its employees, and discovered the violations. The employers will also show that they have effectively enforced such rules before the OSHA inspection.
The Occupational Safety and Health Review Commission OSHRC, in most situations, is the entity that refers the willful violations to the United States DOJ for criminal proceedings or prosecutions (Bethancourt, & Cannon, 2017). An employer or individual can go to the OSHRC for guidance and assistance in concerns that involve a fatality. It gets involved in a dispute or a case over an OSHA ruling when notified by affected employees or an employer, who are contesting a citation or a penalty. The federal OSHRC office constitutes a case file, assigns docket numbers to every contest, or a new case.
Bethancourt, J., & Cannon, M. (2017, January). OSHA, don’t tell me what to do. In ASSE Professional Development Conference and Exposition. American Society of Safety Engineers.
Brenson, K. (2017). Head to head: The NFL concussion scandal and an argument for OSHA regulation. U. Chi. Legal F., 595.
Campbell, R. (2020). Using OSHA Investigation Summaries to Profile Fatal Work Injuries Involving Fire. Fire Technology, 1-29.
McGarity, T. O., Steinzor, R. I., Shapiro, S. A., & Shudtz, M. (2010). Workers at risk: regulatory dysfunction at OSHA. Center for progressive reform white paper, (1003).
Michaels, D. (2015). US department of labor occupational safety and health administration.
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