A recent manslaughter case against the former owner of a Colorado construction company in connection with a trench fatality shows how civil workplace safety citations can occasionally lead to criminal charges.
Peter Dillon, owner of the now-defunct company, Avon-based A4S LLC, pleaded guilty to manslaughter in August in connection with the death of a worker who was installing a residential sewer line when a trench collapsed. Sentencing is set for November.
The case was referred for prosecution after U.S. Occupational Safety and Health Administration inspectors cited the company for willful violations over trenching safety failures.
The case exemplifies how workplace safety citations can sometimes become criminal matters. The frequency with which this happens, though, is difficult to determine.
“There is no average number; we evaluate each case on the merits,” an OSHA spokeswoman said.
OSHA said it evaluates each workplace fatality that results in a willful violation citation, and agency lawyers determine whether to make a criminal referral, the spokeswoman said.
In addition to potential criminal prosecution over Occupational Safety and Health Act willful violation citations, employers can be criminally charged under a separate federal law concerning making false statements to investigators or obstructing justice, she said.
Such criminal cases are “extremely rare,” said Eric Conn, an attorney with Washington-based Conn Maciel Carey LLP, who chairs the firm’s workplace safety group.
Criminal charges could be prosecuted by federal authorities under the Occupational Safety and Health Act or by state authorities, Mr. Conn said. In federal cases, the charges cannot exceed the misdemeanor level, but in state cases felony charges could be brought, he said.
“It doesn’t happen often that there’s a prosecution at the federal or the state level,” Mr. Conn said. “Usually, when you do see a prosecution there’s some other aggravating factor involved in the incident or the investigation by the government.”
Alleen Wilson, Dallas-based senior risk services manager for Safety National Casualty Corp, said, “The willful violation is what can land employers in hot water.”
Citing the Colorado case as well as other recent cases involving employers being charged criminally after worker deaths, she said, “These cases resulted in tragic loss of lives due to companies failing to comply with federal safety standards.”
One of those cases earlier this year involved Helena, Alabama-based ABC Polymer Industries LLC, which pleaded guilty to a willful Occupational Safety and Health Act violation after a worker was killed when pulled into unguarded machinery. The conviction in that case resulted in a fine but no jail time.
Companies should also be aware of the potential effect of these types of cases on insurance, Ms. Wilson said.
“Carriers review a number of activities … when determining whether or not to take on a new risk, and a couple of these include risk control and underwriters reviewing loss history and OSHA violations,” she said. “Some carriers can go back for 10 years.”