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Company Owner Faces Prison in Death of Employee
 

By Roy Maurer  4/29/2014
 

The owner of an asphalt plant faces up to six months in prison if convicted of violating a federal safety standard and causing the death of an employee.

Martin Romano, president of Corvallis, Mont., asphalt company MR Asphalt Inc., pleaded not guilty April 1, 2014, during a hearing in U.S. District Court in Missoula.

Romano also faces a $10,000 fine and the company a $500,000 fine if convicted.

The charges stem from September 2012 when employee William Irby Jr. slipped off an oil tank and fell 15 feet, hitting his head on concrete. Irby died from the injuries.

The Occupational Safety and Health Administration (OSHA) cited the company with 16 safety and health violations, including one willful violation for failing to provide a guardrail or fall protection for Irby. “By ignoring fall protection requirements, this employer showed plain indifference and intentional disregard to worker safety,” said Jeff Funke, director of OSHA’s Billings Area Office. “Employers who knowingly expose workers to life-threatening hazards will be held fully accountable,” he said in a news release.

The company was charged with two other-than-serious violations for failing to record the fatality and failing to notify OSHA within the required eight-hour time frame after an occupational fatality occurs.

OSHA initially issued $54,000 in fines, but the company settled for $36,500.

Criminal Charges on the Rise?

Willful violations of the Occupational Safety and Health (OSH) Act causing loss of human life are punishable by fines up to $500,000 for organizations and $250,000 and up to six months in prison for individuals.

In the 40 years since Congress enacted the OSH Act, there have been more than 400,000 workplace fatalities, yet fewer than 80 OSH Act criminal cases have been prosecuted and only about a dozen have resulted in criminal convictions, explained Eric Conn, head of Epstein Becker Green’s national OSHA Practice Group based in Washington, D.C.

“Historically, the prosecutions have typically targeted cases in which the employers were alleged to have falsified documents and lied to OSHA in conjunction with violations related to an employee fatality,” he said. “The cover-up was worse than the crime.”

The potential “cover-up” in the MR Asphalt case was the company’s failure to report the fatality within the required eight-hour time period and failure to record the fatality as required by OSHA.

Conn said recently OSHA has begun to increase the frequency in which it refers cases to the Justice Department for investigation by a U.S. Attorney and possible criminal sanctions. 

“In fact, we have been told off-the-record from several representatives within OSHA and the Department of Labor Solicitor’s office that as a matter of policy, OSHA now makes a criminal referral in every case involving an employee fatality and a willful violation,” he said.

Whether that results in a criminal charge depends on the Justice Department.

To obtain a conviction of willful violations of the OSH Act causing loss of human life, a prosecutor must establish that:

  • An OSHA standard other than the General Duty Clause was violated.
  • The violation was committed by the employer.
  • The violation of the standard was the direct cause of an employee’s death.
  • The violation was committed willfully by the employer.

Conn remarked that employers can also face criminal sanctions for falsifying records, giving advance notice of an OSHA inspection or committing perjury during OSHA proceedings. 

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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