Be a Manager, Go to Jail
By Steven J. Pynes
California laws place a significant emphasis on creating and maintaining a "safe and healthy workplace" for all California workers. Employers not in compliance with safety and health regulations should be aware that they risk more than just fines or civil penalties if they violate these laws.
Often, the forgotten consequence of violating the California Occupational Safety and Health Act (Cal/OSHA) and other safety and health laws is that employers, and, in some cases, directors, management officials, and supervisory personnel, may incur criminal liability as well. Although criminal penalties may not be imposed on an employer for every violation, they are nevertheless available as a means of enforcing these laws.
Every violation of a Cal/OSHA standard, order, special order, or Health and Safety Code provision in which there is a death or serious injury to five or more employees must be investigated by a State agency. As part of such an investigation, a decision will be made whether to impose criminal liability. Cal/OSHA provided for criminal penalties on any employer or employee having direct management, control or custody of any employment, place of employment, or other employee who willfully violates a Cal/OSHA or Health and Safety Code standard.
An individual convicted of criminal violation under Cal/OSHA may be fined up to $70,000.00, imprisoned for up to six (6) months, or both. Conviction for a subsequent violation committed after the first conviction may bring a fine of up to $70,000.00 (but no less than $35,000.00), imprisonment for one (1) year, or both.
A person who makes a false statement in any record, report or plan that the State agency requires an employer to file or maintain may be subject to criminal liability. This would include the Injury and Illness Prevention Plans required of all California employers. Violation of this requirement could result in a fine of up to $70,000 or imprisonment of up to 6 months, or both.
Additionally, an employer whose safety violations cause the death of an employee could be prosecuted separately for manslaughter. Manslaughter is the unlawful killing of a person without malice. This includes involuntary manslaughter which is a death that occurs in the commission of an unlawful act not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.
In addition to these specific criminal penalties under Cal/OSHA, the California Corporate Criminal Liability Act of 1989 ("Be a Manager, Go to Jail") allows criminal prosecution of a corporation and certain management personnel under specified circumstances. If an employer or managerial employees have knowledge of a serious, concealed danger in the workplace, and do not notify both the appropriate State agencies and its own employees affected by the danger within fifteen (15) days, may be criminally prosecuted under the Act. This obligation to notify affected employees requires that the employer gives a sufficient description of the danger to all individuals working for or in the business entity who are likely to be subject to danger in the course of that work.
Violations of the Corporate Criminal Liability Act are punishable by imprisonment in the County jail for up to one year or by a fine of up to $10,000.00, or both, or by imprisonment in state prison for sixteen (16) months, two (2) years, or three (3) years, or by a fine up to $25,000.00, or both. If the defendant is a corporation, the fine may rise to one million dollars ($1,000,000.00 ).
Copyright © 1996, Ferris & Britton, A Professional Corporation.
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