By Robert G. Chadwick, Jr.,  Partner, Freeman Mathis & Gary, LLP.

On October 21, 2016, two employees of Atlantic Drain Service, Inc. died when the approximately 12-foot deep trench in which they were working in Boston collapsed, breaking an adjacent fire hydrant supply line and filling the trench with water. In February 2017, a Suffolk County grand jury indicted Atlantic Drain and its owner on two counts each of manslaughter and other charges in connection with the deaths.

On April 11, 2017, OSHA cited Atlantic Drain for a total of 18 willful, repeat, serious and other than serious violations.  The citations propose $1,475,813 in penalties. The citations are also the first publicly announced by the agency on its website since President Trump’s inauguration on January 20, 2017.  In this announcement, OSHA noted previous citations against Atlantic Drain for trench hazards in 2007 and 2012.

Although Massachusetts law forms the basis for the Suffolk County indictments, the Occupational Safety & Health Act (“OSH Act”) may also be implicated in the worker deaths.  The Act provides that “[a]ny employer who willfully violates any [OSHA] standard … , and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months.”

On December 17, 2015, in fact, the U.S. Department of Justice announced a new Initiative to expand the prosecution of OSH Act crimes.  On January 20, 2017, a Missouri company was convicted of OSH Act violations in connection with the death of an ironworker.  On March 8, 2016, an Illinois company pleaded guilty to OSH Act violations in connection with the death of an employee resulting from an unguarded conveyor belt.  On March 29, 2016, a Pennsylvania roofing company owner was sentenced to prison for OSH Act violations which included failure to provide fall protection for an employee who fell to his death.  Accordingly, there likely exists a Justice Department file regarding the October 21, 2016 fatalities.

Historically, worker deaths have resulted in few criminal prosecutions, and even fewer criminal convictions.  The Department of Justice initiative and the Suffolk County prosecution show that this pattern has changed significantly.  High fines may be the least of an employer’s worry in the wake of an employee fatality; more than ever before, imprisonment is a possibility that must be considered.