Just as OSHA is about to begin electronically collecting your company’s injury and illness data for possible publication on the Internet, a private group is launching a worker injury database of its own.

The Center for Progressive Reform (CPR), a private group, has just launched a new database, touted as the first of its kind. The database, called “Crimes Against Workers,” publishes information on state criminal cases and grassroots advocacy campaigns against employers, which CPR claims are responsible for workers’ injuries and deaths on the job.

At present, the database contains information on 75 incidents in 16 states that have led to criminal charges. CPR says that it is interested in promoting workers’ rights to a safe and healthy work environment.

The group is launching the new web site just as the December 15, 2017 deadline approaches for employers to submit information to OSHA regarding their 2016 employee injuries and illnesses.  As the rule stands now, OSHA intends to make some of this information available to the public on OSHA’s website.

The new administration says it is reviewing the rule to determine whether to implement it fully or revise it. When the last administration adopted the rule, it suggested that the fear of negative public exposure would provide an incentive for employers to focus more on employee safety.

Tracking and encouraging criminal prosecutions of employers

A visitor to the CPR site can search the database by state, date range, incident type, criminal charges and other charges. It contains links to case and source materials, court decisions, media and press clips, and advocacy materials available through Google Drive.

The CPR database also allows the general public to report new cases and materials to the database manager. CPR hopes to expand the database in the future. But, even in its infancy, the database already lists a fair number of cases, involving a variety of employee accidents and employer prosecutions, along with relevant source materials. Unlike federal OSHA-driven cases, all of the cases on this private website reflect charges brought by local district attorneys from a number of states.

CPR says that it hopes its emphasis on publicizing criminal prosecution of employers will amplify the message that employers risk prosecution for worker safety issues. Potentially, a corporate employee or officer of a corporation, acting on behalf of the employer, could be charged and prosecuted for putting employees’ safety at risk.

While OSHA also can seek some criminal penalties at the federal level, such penalties are not as common.  OSHA has the power to refer a case to the Department of Justice for prosecution in the case of a willful violation of a safety standard or rule that causes the death of a worker.

In particular, under the Occupational Safety and Health Act, 29 U.S.C. § 666, a willful violation that results in death of an employee subjects the employer to criminal charges, including up to six months in prison, a misdemeanor.  For purposes of the Act, courts have defined willfulness as either the intentional disregard of the rule or standard or plain indifference toward it. The Act also authorizes criminal penalties for providing advance notice of inspections or providing false statements or documents to OSHA.

Some, including groups such as CPR, believe that prosecutors should bring criminal charges more frequently. In fact, in 2015, OSHA and DOJ teamed up to try to increase criminal prosecutions of worker safety violations, reflected in a DOJ memo encouraging federal prosecutors to consider charging both worker safety and environmental crimes together.

What can you do to protect yourself?

First, prepare your employees in advance. There is no substitute for effective emergency response and accident investigation plans and policies. You don’t want to be creating these on the fly when an emergency occurs, and employees need strong training to be ready. Consider bringing in an outside trainer, such as a safety and health attorney, to prepare everyone for what to expect and how to handle these difficult situations.

Second, reach out to safety and health counsel as soon as a significant incident occurs. You may just need some advice and counsel by phone to be sure your investigation strategy is sound. But, you also may need counsel on site to manage both the internal investigation and the company’s participation in government investigations. If not handled appropriately, documents, witnesses, and forensic analysis can create significant risk. In addition, findings by one agency can lead to charges or evidence used by others.

Ready to make sure you have the right policies and training in place to be prepared? Please contact your Husch Blackwell safety and health counsel or Avi Meyerstein with any questions.