by Brian Hendrix and Erik Dullea
Husch Blackwell LLP is an IMA B2B Partner
Can mis-steps with OSHA land you in jail? Several recent cases are a reminder that the risk is real. While OSHA rarely makes a criminal case out of safety violations, it does pursue criminal charges when people mislead the agency through false statements, falsified records, or destroyed documents. A company that does not take great care in handling an investigation risks such costly errors, leading to criminal prosecution and stiff penalties under federal law.
In 2018, OSHA announced it intended to dedicate additional resources to curb fraud and abuse and to refer criminal activity to the Department of Labor Office of Inspector General (“DOL-OIG”) for criminal prosecution. Not too long thereafter, in February of this year, a joint investigation by DOL-OIG and the Department of Justice resulted in a guilty plea by an OSHA certified trainer, who submitted false outreach training reports and issued false OSHA 10 certification cards to construction workers. The false records incorrectly certified that they completed specialized safety and health training.
A press release from the U.S. Attorney’s Office in New Jersey announced that the OSHA trainer had issued over 100 fake OSHA 10 cards, selling them for $200.00 each. The charges carry a maximum penalty of 5 years in prison and a $250,000 fine. OSHA maintains a nationwide watchlist of trainers who have failed to adhere to OSHA’s training program requirements and asks the public to report fraudulent activity.
Another recent case is a nightmare scenario for any safety professional. There, DOJ indicted two people – a plant general manager and a safety coordinator/human resources director – on allegations of conspiracy, obstruction of justice, and false statements in conjunction with an OSHA investigation. The indictment alleges that managers and employees knew that a conveyor and rack system moving hot aluminum was hazardous, and the managers discussed safety concerns on numerous occasions.
However, after a fatal accident in which the racks fell on an employee, the two managers allegedly failed to disclose to OSHA investigators an email from employees reporting the hazard. OSHA and DOJ also allege that the managers attempted to coerce employees, using threats of termination, to recant prior emails that reported the hazard. The managers deny wrongdoing, and the case is ongoing.
Preventing criminal charges – “do no harm” – should be a key focus of accident investigations
This latest case is a reminder that one of the biggest risks in a serious or fatal accident investigation is often not the accident itself, but rather mis-steps during the investigation. For that reason, the Husch Blackwell crisis management team is often called to manage significant investigations on site.
Setting up a counsel-directed, privileged internal investigation in parallel with any government inquiry not only strengthens claims that certain investigative material is privileged, but it also helps prevent intentional or unwitting mistakes. For instance, as we interview witnesses, we have an opportunity to remind them not only of their rights but also of their responsibilities, especially impressing upon them the importance of always telling the truth. Under the pressure of a traumatic event and government investigation, even the best-intentioned witnesses can forget these core principles without guidance.
A thorough attorney-led investigation also provides a heads-up of, and time to prepare for, potential issues. Internally reviewing documents, analyzing forensic evidence, and interviewing key employees provides early insight into possible areas of inconsistency or confusion. Having counsel closely involved also helps ensure that all employees know how to preserve and respect evidence and avoid any allegations of tampering.
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