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California employer criminally responsible for "willful conduct"

In our previous post, we discussed ways that California employers can protect themselves from claims of willful and serious violations of safety requirements. In this post, we will describe a case of a California company that was held criminally responsible for a worker's injury.

The company, California C&R, is a San Francisco roofing contractor. This company had been under investigation in 2002 for failure to have a site safety plan. The owner of the company did agree to take a safety course and create a safety plan.

However, the California Division of Occupational Safety and Health (DOSH) did not re-inspect California C&R and the company could not show that it improved safety. Unfortunately, a fatal accident did occur when a roofing employee who was working on the edge of an apartment building fell four stories. His 38-foot fall resulted in his death.

The employees of this roofing company worked without personal fall protection equipment or any other such protective devices. Neither did they receive training according to the DOSH investigation. Apparently, two employees were again working on the same roof without protection the day after the fatal accident.

The California Division of Occupational Safety and Health found that California C&R did not have a safety plan, six years after it agreed to implement one. Under such a plan, fall prevention and fall protection should have been addressed.

California C&R received a willful violation regarding roof hazards. The district attorney brought criminal charges against the company's owners and the site foreman. Among other charges, in May of this year, the owner pleaded guilty to involuntary manslaughter and willfully violating a Cal/OSHA safety order causing death.

The owner of California C&R was sentenced to a year in prison. The foreman pleaded guilty to a misdemeanor of leaving a worker unprotected and was sentenced to six months to a year in prison.

As we discussed in the previous post, charges of failure to address the serious citation of not having a safety plan, which the owner promised, are hard to defend. If the company had implemented a safety plan, including the requiring of fall protection of its employees, it is possible that the fatal accident would not have occurred, but even if it did, it is less likely that this California employer would have been held criminally responsible.

Source: hr.blr.com, "CA Employers: Could You Be Criminally Liable for an Employee's Injury?," Sept. 13, 2011

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