U.S. employers whose workers suffer a fatal accident on the job may soon be looking at a new consequence: prison time.

The Occupational Safety and Health Administration is dusting off its long-held, but seldom-used, authority to bring criminal referrals for workplace deaths that result from egregious violations of health and safety standards, a new analysis by a Washington-based law firm shows.

"In the 40 years since Congress enacted the OSH Act, there have been more than 400,000 workplace fatalities, yet fewer than 80 total OSH Act criminal cases have been prosecuted—less than two per year—and only approximately a dozen have resulted in criminal convictions," labor law attorneys Jordan B. Schwartz and Eric J. Conn, of Becker Epstein Green, note in a new article. Conn heads the firm's national OSHA Practice Group.

Now, the attorneys write, that is changing.

The Weight of Willful Violations

OSHA has recently begun referring more and more cases to the Justice Department "for investigation by a U.S. Attorney and possible criminal sanctions," the article says.

U.S. Coast Guard

Three BP executives face criminal charges in the Deepwater Horizon explosion that killed 11 employees in the Gulf of Mexico in April 2010.

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

Regardless of whether that is official policy, the attorneys add, "we have certainly seen a rise in the instances of charges being brought and/or significant plea deals being negotiated."

Willful violations are OSHA's highest level of infraction, reserved for violations "committed with intentional, knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health," according to the agency. One willful violation can carry a fine of up to $70,000.

Federal law provides criminal penalties for employers, in addition to the usual citations and fines, if:

• The employer (including a corporate officer or director) is "engaged in a business affecting commerce";
• The employer violated a "standard, rule or order" promulgated under the OSH Act;
• The violation was willful; and
• The violation caused the death of an employee.

The law notes that for criminal prosecution, the government need not prove that the employer "entertained a specific intent to harm the employee or that the employer's action involved moral turpitude."

On the other hand, as with other criminal prosecutions, the prosecutor must establish the wrongdoing "beyond a reasonable doubt" —a higher standard than for civil OSHA enforcement actions.

The current referrals reflect a shift away from OSHA's historic prosecution emphasis, Conn and Schwartz report.

"OSHA 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," they write. "The cover-up was worse than the crime."

In addition, they note: "Chronic violators and employers who demonstrated a systematic rejection of worker safety laws also appear to have been more likely to face charges."

Who's at Risk

These days, however, criminal action appears "most likely in cases involving both employee safety and environmental laws," the attorneys note.

Missouri American Water

Missouri American Water faces two willful safety violations in a worker's death. Such cases may lead to criminal referrals.

They note, for example, the indictment of the owner and former president of an environmental firm in July for illegally transporting hazardous materials that resulted in the death of two employees. 

Meanwhile, in September, four former managers from Atlantic States Cast Iron Pipe Company lost their appeal of prison sentences and an $8 million fine in connection with several safety and environmental violations, and the cover-up of those violations. The case involved multiple incidents at a company plant that resulted in an employee being killed, one losing an eye, one losing three fingers, and one breaking a leg.

In addition to willful OSHA violations that cause an employee fatality, the attorneys say, employers and workers may face criminal sanctions in these circumstances:

• Falsifying OSHA documents; 
• Advance notice of an OSHA inspection;
• Perjury during OSHA proceedings;
• Violations of envisonmental statutes; and
• Violations of state criminal laws.