Safety is important to all of us, but did you know you could be subject to criminal penalties, as well as civil penalties, for violating standards set by the California Occupational Safety and Health Administration (OSHA)? These penalties include prison sentences of up to four years and up to $3.5 million in fines.

The following information, derived from Sections 6423 and 6425 of the California Labor Code and from Section 192 of the California Penal Code, is designed to give you a general overview of the penalties you could receive for committing violations of OSHA guidelines. It does not constitute legal advice! Due to the serious nature of the penalties that may be incurred for such violations, you should consult with legal counsel for further guidance and clarification.

VIOLATIONS THAT RESULT IN SERIOUS DEATH OR INJURY
UNDER LABOR CODE § 6425

Willful Violation Of Standard Causing Death Or Serious Injury To Employee

Any contractor who willfully violates an OSHA standard is guilty of a public offense and may be subject to severe penalties if the violation causes death or serious injury to any employee.

To Whom Does This Section Apply?

This section applies to any employer or employee who has direction, management, control, or custody over any employment, place of employment, or of any other employee. Basically, any person who has responsibility for, or who has control over the work place, may be liable and face penalties for committing violations under this section.

What Constitutes A Willful Violation?

The word “willfully,” as used in the Labor Code, applies to the intent with which an act is done or omitted. Basically, this implies simply a purpose or willingness to commit the violation. If a contractor deliberately violates an OSHA standard, he has made a willful violation.

What Constitutes A Serious Injury?

An injury is deemed serious under the Labor Code if it results in permanent or prolonged impairment of the body of any employee.

Penalties

In General

A contractor who willfully violates an OSHA standard resulting in death or serious injury to an employee may be imprisoned in the county jail for up to one year, or may receive a fine up to $100,000, or may receive both the imprisonment and fine; or the contractor may be imprisoned in the state prison for up to three years, may receive a fine up to $250,000, or may receive both the imprisonment and fine. In either case, if the contractor is a corporation or a limited liability company, the fine may be up to $1,500,000.

Penalty For Conviction If Received Within 7 Years Of Receiving A Prior Misdemeanor Violation Conviction

A contractor who is convicted for willfully violating an OSHA standard that results in death or serious injury to an employee may be subject to more severe penalties if the contractor was convicted of a misdemeanor violation under Labor Code § 6423 within the prior seven years. These misdemeanors are discussed in the next section, and consist of: knowingly or negligently committing a serious OSHA violation; repeatedly violating a standard if the violation creates a real and apparent hazard; failing to report a death; failing or refusing to comply with a standard if the violation creates a real and apparent hazard; and inducing another to commit any of the above acts.

The penalties under this provision are a state prison term between sixteen months and three years, a fine up to $250,000, or both the imprisonment and the fine. In either case, if the contractor is a corporation or a limited liability company, the fine will be no less than $500,000, and may be up to $2,500,000.

Penalty For Conviction If Received Within 7 Years Of Receiving A First Conviction For Willful Violation Of Standard Causing Death Or Serious Injury

A contractor who is convicted for willfully violating an OSHA standard that results in death or serious injury to an employee may be subject to more severe penalties if the contractor was convicted of a willful violation of a standard that caused death or serious injury to an employee within the prior seven years. The first conviction need not have been for the same violation. Any first conviction for such a willful violation that caused death or serious injury will trigger this provision, if it was received within seven years to the subsequent conviction.

The penalties under this provision are imprisonment in the state prison between two and four years, a fine up to $250,000, or both the imprisonment and the fine. If the contractor is a corporation or a limited liability company, the fine will be no less than $1,000,000, and may be up to $3,500,000.

A Contractor May Still Be Prosecuted Under The California Penal Code

Although specific penalties have been set out in the Labor Code for committing a willful violation of a standard that results in death or serious injury to an employee, a contractor may also be subject to more severe penalties under Section 192 of the Penal Code. Therefore, if a contractor commits a willful violation resulting in death or serious injury, a prosecutor may elect to prosecute the contractor for an offense carrying a heavy penalty under Penal Code § 192 — though s/he could have elected to prosecute for an offense carrying a much lighter penalty under the Labor Code. Under Penal Code § 192, a contractor may be prosecuted for involuntary manslaughter if the contractor commits a violation of an OSHA standard that results in death to an employee.

Penalties

If convicted for involuntary manslaughter, the contractor may receive up to four years in the state prison. Corporations may also be criminally liable for involuntary manslaughter.

VIOLATIONS THAT CONSTITUTE MISDEMEANORS
UNDER LABOR CODE § 6423

To Whom Does This Section Apply?

This section applies to any employer or employee who has direction, management, control, or custody over any employment, place of employment, or of any other employee. Basically, any person who has responsibility for, or who has control over the work place, may be liable and face penalties for committing violations under this section.

Knowingly Or Negligently Committing A Serious Violation

It is a misdemeanor for a contractor to either knowingly or negligently violate an OSHA standard if the violation constitutes a serious violation.

What Constitutes A Serious Violation?

A serious violation under the Labor Code is deemed to exist if there is a substantial probability that death or serious physical harm could result. It is of no consequence that the chances of an actual accident or harmful exposure are very unlikely. The question is not whether there is a substantial likelihood of a particular accident or harmful exposure occurring from the violation, but instead: if there were an accident or harmful exposure (however slight the chances may be of that happening), is there a substantial probability that death or serious physical harm could result? If the answer to this question is yes, such a violation would constitute a punishable misdemeanor regardless of whether the violation was intentional or arose from carelessness on the part of the contractor. As a general rule, almost any dangerous condition could constitute a serious violation.

Penalties

For knowingly or negligently committing a serious violation of an OSHA standard, a contractor may be imprisoned in the county jail for up to six months, may be fined up to $5,000, or may receive both the imprisonment and the fine.

Repeatedly Violating A Standard If The Violation Creates A Real And Apparent Hazard

It is a misdemeanor for a contractor to repeatedly violate an OSHA standard if the repeated violation creates a real and apparent hazard to employees. The Labor Code does not specify how often a violation must occur for it to be deemed a repeated violation. Therefore, committing the same violation just twice may be enough to trigger the misdemeanor.

What Constitutes A Real And Apparent Hazard?

If it is readily apparent that a condition may lead to a harmful exposure or accident that would result in any bodily harm, the hazard is real and apparent. As a general rule, any dangerous condition may constitute a real and apparent hazard.

Penalties

For repeatedly violating a standard that creates a real and apparent hazard, a contractor may be imprisoned in a county jail for up to one year, may receive a fine up to $15,000, or may receive both the imprisonment and the fine. If the contractor is a corporation or a limited liability company, the fine may be up to $150,000.

Failing To Report A Death

It is a misdemeanor for a contractor to fail to report a death to the Division of Occupational Safety and Health.

Penalties

A contractor who fails to report a death to the Division of Occupational Safety and Health may be imprisoned for up to one year, may receive a fine up to $15,000, or may receive both the imprisonment and the fine. If the contractor is a corporation or a limited liability company, the fine may be up to $150,000. Any contractor that violates this provision will receive at least a $5,000 penalty.

Failing Or Refusing To Comply With A Standard If The Violation Creates A Real And Apparent Hazard

It is a misdemeanor for a contractor to fail or refuse to comply with a standard –after notification and expiration of any abatement period — if the failure or refusal creates a real and apparent hazard to employees.

What Constitutes A Real And Apparent Hazard?

If it is readily apparent that a condition may lead to a harmful exposure or accident that would result in any bodily harm, the hazard is real and apparent. As a general rule, any dangerous condition may constitute a real and apparent hazard.

Penalties

For failing or refusing to comply with a standard that creates a real and apparent hazard, a contractor may be imprisoned in a county jail for up to one year, may receive a fine up to $15,000, or may receive both the imprisonment and the fine. If the contractor is a corporation or a limited liability company, the fine may be up to $150,000.

Inducing Another To Commit Any Of The Above Acts

It is a misdemeanor for a contractor to directly or indirectly induce another to commit any of the acts mentioned above (committing a serious violation, repeatedly violating a standard that creates a real and apparent hazard, failing to report a death, and failing or refusing to comply with a standard that creates a real and apparent hazard).

Penalties

For inducing another to commit any of the acts mentioned above, a contractor may be imprisoned in a county jail for up to one year, may receive a fine up to $15,000, or may receive both the imprisonment and the fine. If the contractor is a corporation or a limited liability company, the fine may be up to $150,000.

WHAT YOU CAN DO

Safety at the workplace should always be a high priority, not only for the sake of your employees, but for you as well, as you personally could suffer serious legal repercussions as the result of an unsafe working environment. In addition to facing criminal liability and heavy fines for maintaining an unsafe work environment, you could also be forced to hand over tax returns and other private business records to the District Attorney’s Office. If you are convicted, your insurance and bonding capacity are likely to be impacted as well.

However, there are some things you can do to protect yourself in the event that an accident occurs. First, it is important that you retain an attorney who has OSHA expertise. You should call your attorney immediately after an accident occurs because you can expect OSHA and the police to arrive imminently to conduct an investigation. It is crucial that you have an attorney on the scene who can recommend steps you should take prior to and during any OSHA/police investigation. It is also important for you and your attorney to conduct your own investigation immediately after an accident so you have a credible record of what took place in the event litigation ensues. Do not leave these matters in the hands of another employee who is likely to be unfamiliar with the law and with the proper procedures that should be followed!

Due to the severity of the penalties, which may include prison time, it is crucial that you retain a knowledgeable attorney who can ensure that you and your business are well protected in the event that an accident occurs.

For more information please contact Candace Matson and Kevin Rivera. Candace L. Matson is a partner in the Real Estate, Environmental and Construction Practice Group of Sheppard Mullin’s Los Angeles office where she specializes in construction law. Kevin Rivera is an associate in the Labor and Employment Practice Group in the firm’s Los Angeles Office.