Employers generally view workplace safety enforcement as a civil problem, with criminal prosecution seen as a rare exception reserved only for the most egregious conduct. In practice, that assumption is becoming increasingly misplaced. Although criminal safety prosecutions remain relatively uncommon, precedent shows that they tend to arise from predictable fact patterns. This article examines two such scenarios in which employers and their supervisory personnel face an increased risk of criminal prosecution for safety-related violations, even where they may have written safety rules in place.
OSHA Enforcement and the Risk of Criminal Prosecution Generally
The enforcement mechanism under the Occupational Safety and Health Act (OSH Act) is primarily civil in nature. Inspectors from OSHA (or one of its approved state plans) conduct inspections of work sites to determine whether violations of applicable safety and health standards or regulations exist. Those inspections may occur as a result of a complaint, an accident, a drive-by by an inspector, or the agency's inspection protocols and priorities. Apparent violations discovered during such inspections typically result in the issuance of citations with proposed penalties and accompanying abatement expectations. Although the penalties proposed in connection with such apparent violations can be very substantial, they are civil in nature.
Indeed, civil citations and penalties are the overwhelmingly predominant result of inspections by OSHA compliance officers. However, in appropriate circumstances, employers, including officers and directors, can find themselves in the crosshairs of a criminal indictment. This can happen because the OSH Act and its state counterparts in approved state plans allow for criminal prosecution under limited circumstances, including when the violation of a safety standard is willful and results in the death of an employee. Willful violations, very generally, relate to those violations that reflect a conscious or deliberate disregard of or indifference to the requirements imposed by a standard. Such disregard need not to be malicious or calculated to lead to injury; it is sufficient that the employer knew what was required of it, but consciously ignored or deliberately did not adhere to those requirements. Of greater concern is the risk of prosecution for workplace events under state criminal statutes for charges such as reckless endangerment, manslaughter, or negligent homicide. The prospect of criminal liability under state laws presents a much broader basis for potential liability of employers and supervisors because there is no requirement that a death occur or that the violation be willful.
Criminal Liability Related to Trenches and Overhead Powerlines
The criminal prosecution of safety-related violations is comparatively rare. Nevertheless, there are at least two scenarios in which employers may reasonably expect potential criminal prosecution. These two scenarios are instructing or permitting employees to work within an unprotected trench or excavation that collapses and causes the death of or serious injury to an employee. The second is an electrocution that occurs as the result of instructing or tolerating employees to work around energized overhead power lines without appropriate protection from contacting the lines, either with their hands or the tools and equipment with which the employees are working.
Many employers may be thinking that neither scenario is worrisome because they have rules that prohibit such work. Regrettably, this reliance on the existence of written rules is often not a safe haven for employers. Such rules do not provide a safe harbor unless the rules are found to be clear, communicated to employees, and enforced scrupulously by the company. A weak link is often the employer's own supervisors. Having placed individuals in a supervisory positions, employers are typically considered to be responsible for the decisions made by their supervisors. Approximately four years ago we published an article, Fifth Circuit to Employers: "Your Past May Haunt You," about a case in which a U.S. Court of Appeals affirmed a willful citation against a Texas highway construction business, finding that the employer was liable for the foreman's intentional disregard of safety measures and instructions from its safety manager. Angel Bros. Enterprises v. Walsh, 18 F.4th 827 (5th Cir. 2021). In that case, the court found the employer was aware of the violation and could not assert a valid misconduct defense because the foreman told employees to enter the trench in violation of OSHA standards and the employer's own rules. The court rejected the employer's assertion that it should not be held responsible for the supervisor's malfeasance in ordering the workers into the trench. In the court's view, the company was legally aware of the foreman's malfeasance: because of his supervisory authority, the foreman's direction to employees was fairly imputed to be a direction from the employer.
The court in that case also held that a supervisor's willful actions may be imputed to an employer. In our discussion, we observed that imputing the supervisor's knowledge to the company was troubling, since if a supervisor's knowledge can be imputed to an employer for purposes of proving willfulness, then all violations arguably are willful because supervisory knowledge is a required element of every alleged OSHA violation.
Most courts and the OSH Review Commission may have not gone so far as the court in Angel in imputing a supervisor's intent to the company or its officers, but the case remains persuasive on an employer's ability to assert the defense of employee misconduct against citations resulting from a supervisor's acting against instructions. See, e.g., Comtran Group, Inc. v. U.S. Dep't of Lab., 722 F.3d 1304 (11th Cir. 2013) (declining to impute a supervisor's willful misconduct to the employer absent proof of employer knowledge). Thus, the decision is in line with the majority of decisions stating that employers have "heightened duty to ensure the proper conduct of [supervisory] personnel," and finding that instructions by supervisors, foremen, or lead men to do work in violation of company rules or their tolerance of such work is not misconduct from which the company will be excused. See Angel Bros., 18 F. 4th at 831 (quotation marks and citation omitted). Rather, in those instances the supervisor's knowledge of his or her failure to enforce compliance with the company's rules—whether the supervisor actually directed or merely acquiesced to those actions—will likely be imputed to the employer and will constitute the employer's knowledge of the violations. Employee misconduct defenses will be limited to instances in which an employee (and in some cases more than one employee) violates the rule without supervisory knowledge or in which the supervisor is the one who engages in the activity, usually without participation by other employees. This limit is imposed because participation in the violative conduct by several employees "is strong evidence that implementation of the [safety] policy was lax." See Floyd S. Pike Elec. Contractor, Inc. v. OSHRC, 576 F.2d 72, 77 (5th Cir. 1978) (quotation marks and citation omitted).
The implications for employers are profound. Settled caselaw imposes a duty on employers to ensure that their supervisors know and enforce the company's safety rules: tolerating noncompliance will be construed as evidence of employer knowledge of alleged violations or lax enforcement of rules such that claims of misconduct will likely fail. More importantly, if workers are injured or killed because of such laxity, the company and its supervisors could find themselves confronting criminal allegations.
Many employers, particularly those in construction, have employees who regularly work in excavations or around overhead power lines. Most of those employers have clear rules on how such work should be performed safely. If workers are not adequately trained on those rules or if foremen or competent persons do not enforce the rules, reliance on employee misconduct as a defense against citations will be compromised. Mar-Jac Poultry MS, LLC v. Secretary of Labor, No. 24-60026 (5th Cir. July 10, 2025) ("Mar-Jac did not prove that the company adequately communicated its work rule to relevant employees, took reasonable steps to discover violations of the rule, and effectively enforced the rule. Rather, … substantial evidence supports that … floor personnel and supervisors regularly and openly violated this rule"). Likewise, the reluctance to meaningfully discipline employees and supervisors when serious infractions of the employer's rules occur may undermine an employee misconduct defense against citations.
Lax enforcement of safety rules should also raise concerns about possible criminal prosecution, particularly if employees are seriously injured or killed as a result. While concerns about prosecution may exist for any violation that could or does result in the death or serious injury of a worker, the risk is greatly magnified when the underlying violation involves employees working unprotected in excavations and trenches or around energized overhead powerlines. The risk is increased because serious injury or death from a trench collapse or from contacting overhead powerlines is seen as not merely possible, but probable. Not surprisingly, so is the risk of criminal prosecution of employers and their supervisors who allow employees to do such work without appropriate protection.
If your organization has any questions about OSHA enforcement, please contact the authors of this article or any attorney in Venable's Labor and Employment Group.