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When employers can be held liable for a worker's death

With more than 400,000 occupational fatalities that have occurred in South Carolina and throughout the country since 1970, it is rare that employers have been held criminally liable for an employee's death. However, when the Occupational Safety and Health Administration adopted the OSH Act in 1970, 88 employers since that time up to 2015 have been criminally prosecuted.

Under the OSH Act, if an employee suffers a fatal injury while on the job, and the death can be directly linked to the employer's willful violation of an applicable OSHA regulation, the employer may be subject to criminal penalties via a lawsuit, despite the fact that the State's Workers' Compensation Act disallows lawsuits of this type. According to the OSH Act, employers found to be criminally liable for such actions can be penalized for court-imposed fines of up to $250,000 for individuals or $500,000 for corporations and a jail sentence of up to six months, or both. Based on state laws, the consequences of a felony conviction can include millions of dollars in fines and a lengthy prison term. Further, some criminal OSH Act violations regarding perjury laws, environmental laws and others could result in increased penalties of up to 20 years in prison.

In order for the violation to be found as Willful, OSHA officials are required to show that the employer purposely committed the violation or committed the violation with plain indifference to the health and safety requirements under the law. A Willful violation typically leads to criminal penalties only when there has been a death; however, if there are no deaths, employers found to commit a Willful violation can still be significantly penalized.

People who have lost a loved one in a workplace accident have a right to file for workers' compensation. If they suspect that an employer was to blame for the death, they might wish to speak with a local law firm about filing a civil claim against the employer. Source: National Law Review, "One of Our Employees Died at Work - Am I Going to Jail?", Daniel Kaplan, February 27, 2017

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