OSH Prosecution

Whether or not Cal/OSHA acts, there may be criminal or civil laws that relate to occupational safety that may be enforced by a government prosecutor. Government prosecutors do NOT get money for an injured worker; however, they may help enforce OSH standards, remedy workplace hazards, or punish employers for violations. Workers and their representatives can participate in this process to some extent.


Can a Citizen be a Toxic Cop?

When does a City Attorney, District Attorney or the Attorney General get involved? Generally, an administrative agency contacts these law enforcers when the administrative system has failed. Unfortunately, more often than not, the administrative agency doesn't bother to bring in "bigger guns" and just lets the matter work its way through the administrative system even if the results are unsatisfactory.

Occasionally, however, private citizens are frustrated with the administrative agency and go directly to these law enforcers. This is NOT easy to do, however. Law enforcement agencies aren't used to citizens complaining about workers being killed or maimed in the course of business or environmental crimes. You may not get a good response.

Also, although local, state or federal prosecutors can prosecute based upon occupational or environmental matters using criminal or civil laws, such prosecutions usually occur only if the county, state or federal jurisdiction has allocated resources to establish some kind of special unit to handle occupational safety or health or environmental matters. More and more of these units are coming into existence in City and District Attorney offices.

 


Criminal or Civil Prosecution?

1) Criminal enforcement is available to local prosecutors using provisions in the Penal, Labor, Health and Safety, Fish and Game, Food and Ag, Government, Vehicle, and Water Codes, among others. Each prosecutor will establish his/her own criteria for what should be criminally prosecuted.

If there is a serious injury or death or a serious exposure has occurred which in the future may lead to serious injury or death -- then a prosecutor is likely to be more interested. See Labor Code§§ 6326, 6423, 6425, 6426, Penal Code §387, among other provisions. We now have more flexible laws giving prosecutors the ability to charge either a felony or misdemeanor with a significant monetary penalty against a business entity. See the penalties discussion below.

2) Civil enforcement is also available to prosecutors under the unfair competition provisions of the Business and Professions Code 17200 et.seq . Again, each prosecutor will establish his/her own criteria assuming there is a unit to prosecute these cases.

Generally, prosecutors are most interested in filing a B&P 17200 complaint when the potential defendant has repeatedly violated the law (and you have good documentation of this including warnings to the violator), when the violation is a continuing one, when the violation is likely to cause death or serious injury and has some "sex appeal" (it involves a chemical or issue which is "hot" like asbestos or lead), and when the potential defendant is not on the verge of bankruptcy (these cases punish by going for the pocketbook; if the potential defendant has no money, there is not much punishment).


Which Types of Government Attorneys Take Action: City Attorneys, District Attorneys, Attorneys General

City Attorneys in some counties have authority to bring criminal cases. If so, call them. Otherwise go to the District Attorney. Generally, the District Attorney will seek the help of the Attorney General if the problem is one of statewide concern. There are few instances where a private citizen goes directly to the Attorney General. However, if the Attorney General wants to get involved in a local issue of concern, then s/he can do so. It depends on the Attorney General.


Criminal Prosecution


Penalties

Information regarding the penalty process is found at Labor Code 6319. See also Labor Code 6423 - 6436. Prior to 2000, state and local government agencies were exempt from penalties, but this is no longer the case. (see Labor Code 6434).

Cal/OSHA has a set of procedures they follow to reduce the base penalty depending on the size, history and good or bad faith of the employer.

Criminal penalties (fines and jail time) may be levied in certain cases.

Amendments to Labor Code 6425 give prosecutors the ability to file either misdemeanor or felony criminal charges against employers who willfully violate safety and health standards and cause death or permanent or prolonged impairment. Labor Code §6425 provides for a fine up to $250,000 for an individual and $1.5 million for a company and a prison sentence of 16 months, 2 or 3 years upon a first conviction. Greater penalties are available for subsequent convictions.

The word "willfully" in criminal cases is now defined as in Penal Code 7, not according to the definition created by the OSH Appeals Board in administrative cases.

Amendments to Labor Code §6423 increase the penalty from 6 months to 1 year in jail and from $5,000 to $15,000 for an individual or $150,000 for a company for repeatedly violating safety and health standards or failing or refusing to comply after abatement period has run when that activity causes a real and apparent hazard to workers, or for inducing another to do that or inducing another to negligently violate a standard where the violation is deemed serious.

Amendments to Labor Code §6430 create a new crime if an employer submits a signed statement affirming compliance with abatement terms of a Cal/OSHA citation and such is found not to be true. This crime is a misdemeanor with up to 1 year in jail and $30,000 fine for an individual or $300,000 fine for a company.

Practically speaking, the DA will want to prosecute individuals when they have real control of the work place and are high enough up in the "food chain" that they could meaningfully allocate resources to make the workplace safe. That does not mean that someone lower down might not be charged, but in reality, if a foreman, general foreman, or even superintendent has taken reasonable steps to ask superiors for safety or health protection for their crew, and acted reasonably under all the circumstances to provide health and safety, it is not likely they will be charged.

As a precaution, it is good advice to document your communications with your superiors! If someone is to be charged and go to jail, it may as well be those who profit from the lack of safety or health.

And if intermediate supervision document up the line, perhaps those higher up will be forewarned and take the steps to prevent a serious injury or death. After all, that's the purpose of criminal prosecutions as a deterrent.


Civil Prosecution

There are also civil statutes that allow a person to use the administrative regulations and related statutes as a basis for getting relief such as prohibiting unsafe acts and compelling an employer to provide a safe and healthy place to work. See Business and Professions Code § 17200 et. seq. With the passage of Proposition 64 in 2004, however, the ability of an individual or group of individuals ("class") to use this statute was curbed.

However, for violations of the Labor Code, including violations of statutes and regulations relating to occupational safety and health, there is still a private right of action that unions and workers may use to try to achieve safety and health in the work place when the administrative agency fails. See Labor Code Section 2698 et. seq. which was authored by California State Senator Joe Dunn and signed by then Governor Gray Davis on October 12, 2003. This bill was known as SB 796 and sometimes the law is referred to by that bill number. The law was amended with a bill known as SB 1809 even before many lawsuits were filed so as to restrict how it was used, but it is still a valuable tool, although it does not provide for significant individual damages. )

Review Labor Code Section 2698 et seq. to see whether you can pursue a private right of action to enforce occupational safety and health. You are required to file with Cal/OSHA in order to pursue this approach and give them time to act. But if you file and Cal/OSHA does not act, you may want to use this law to pursue a safety or health complaint. Be sure to follow all the timelines.