OSHA Head Testifies In Support Of Major Reform

Source: ChemicalProcessing.com

By Eric J. Conn and James A. Lastowka, McDermott Will & Emery LLP

Mar 29, 2010

On March 16, 2010, the Assistant Secretary of Labor for the U.S. Occupational Safety and Health Administration (OSHA), Dr. David Michaels, testified before the U.S. House of Representatives' Subcommittee on Workforce Protections, in support of a major piece of OSHA reform legislation making its way through the U.S. Congress.

Michaels testified that "because OSHA can visit only a limited number of workplaces each year, we need a stronger OSH Act to leverage our resources to encourage compliance by employers."  And a stronger OSH Act is exactly what is before Congress right now.  The legislation, the Protecting America's Workers Act (PAWA), proposes a number of major changes to enforcement of the OSH Act, but most significantly, increases criminal and civil penalties and the frequency and targets of criminal charges under the Act.

PAWA would greatly expand criminal liability against companies and individuals.  In the proposed bill before the House, HR 2067, and in a package of modifications to the bill circulated by the House Subcommittee on March 9, 2010, the degree of available criminal charges would increase from misdemeanor to felony.  The potential targets of criminal charges would broaden to include "any officer or director."  The maximum prison sentence under the legislation would increase from six months to 10 years for a first offense, and from one year to 20 years for repeat convictions.  Significantly, under the modifications to the bill, PAWA also would lower the level of conduct triggering criminal liability. 

Specifically, the reform legislation would amend the OSH Act to change the burden of proof in a criminal case from "willfully" to "knowingly."

Michaels explained:  "Section 311 states that any employer who 'knowingly' violates any standard, rule, or order and that violation results in the death of an employee is subject to a fine and not more than 10 years in prison. . . .  This would ease the burden of proof currently required for a criminal violation under the OSH Act because it is easier to prove a knowing violation than to establish willfulness under current cases."  These proposed changes would make OSHA criminal prosecutions much more attractive to local U.S. attorneys.

Second, civil penalties also would increase significantly under PAWA -- from a current maximum of $70,000 per violation to $120,000.  If a willful or repeated violation results in the death of an employee, PAWA would increase the penalties to a minimum of $50,000 and a maximum of $250,000 per violation.

For more information, visit: http://osha.gov/pls/oshaweb/owadisp.show_document?p_table=TESTIMONIES&p_id=1062

You can e-mail the authors of this news item: James A. Lastowka jlastowka@mwe.com or Eric J. Conn econn@mwe.com.