Earlier this month, a federal jury in West Virginia found Don Blankenship, former Chairman and CEO of the Massey Energy Company, guilty of a misdemeanor charge of conspiring to willfully violate safety and health standards set forth in the Federal Mine Safety and Health Act of 1977.  Blankenship was acquitted of felony charges of securities fraud and making false statements to the U.S. Securities and Exchange Commission, which could have resulted in a sentence of 30 years.  He faces a maximum sentence of one year in prison when he is sentenced next year.  

The charges against Blankenship resulted from a coal dust explosion at Massey Energy’s Upper Big Branch mine on April 5, 2010, which killed 29 of the 31 miners who were on-site.  The Mine Safety and Health Administration (“MSHA”) investigated the accident and concluded that Massey Energy’s unlawful practices “were the root cause of this tragedy.”  Specifically, MSHA found “multiple examples of systematic, intentional, and aggressive efforts by…Massey to avoid compliance with safety and health standards, and to thwart detection of that non-compliance by federal and state regulators.”  For example, the company kept two sets of books to mislead miners and inspectors, tipped off employees prior to inspections, and threatened workers to prevent them from reporting violations.

Like the Mine Safety and Health Act, the Occupational Safety and Health Act also provides for criminal charges in certain circumstances. Earlier this year, the U.S. Department of Justice brought criminal charges against James J. McCullagh, the owner of James J. McCullagh Roofing, after an employee fell to his death from a scaffold and McCullagh attempted to cover up the fact that he failed to provide his employees with fall protection equipment, including safety harnesses.  On December 9, 2015, McCullagh pleaded guilty to four counts of making false statements to an OSHA Compliance Officer, one count of obstruction of justice, and one count of willfully violating an OSHA regulation causing death to an employee.  McCullagh faces a possible sentence of 25 years in prison.

Generally speaking, criminal charges for violations of federal safety and health standards are quite rare.  Employers can avoid such charges by following a few simple guidelines:

• Ensure that all of your establishments are in compliance with all applicable safety and health regulations.  Under the Occupational Safety and Health Act, for example, only willful violations that are found to have caused or contributed to the death of an employee can be referred to the Department of Justice for criminal prosecution.
• Do not provide employees with unauthorized advance notice of any inspection to be conducted by a federal agency such as MSHA or OSHA.
• Do not attempt to cover up violations by making false statements or providing false information to federal investigators.