In her 2023 Enforcement Report, Solicitor of Labor Seema Nanda revealed enhanced coordination with OSHA to hold employers and supervisors accountable for repeat and willful violations, especially those that lead to worker fatalities. The United States Solicitor of Labor (SOL) is the chief legal officer of the United States Department of Labor (DOL) and heads the DOL’s Office of the Solicitor.
Piercing the Corporate Veil to Hold Employers Personally Liable for OSHA Violations
In May 2023, the Office of the Solicitor won a favorable decision from an administrative law judge (ALJ) against Shawn D. Purvis, an employer doing business as Purvis Home Improvement Co. Inc.[1]
Although Purvis operated his roofing company as a corporation, the SOL was able to “pierce the corporate veil” and hold him personally responsible and liable for more than $1.5 million in OSHA penalties. Purvis had repeatedly and willfully exposed his employees to fall hazards at roofing worksites by failing to comply with OSHA’s fall protection standards.
The judge in this case concluded that because “the OSH Act places little importance on the organizational nature of an employer, it is appropriate to pierce the corporate veil to achieve the purpose of the OSH Act.” The ALJ found veil piercing was warranted because Mr. Purvis routinely disregarded the corporate form either by identifying himself as Shawn Purvis dba Purvis Home Improvement Co., Inc. or by not using the corporate name.
“Allowing Mr. Purvis to avoid liability by hiding behind the corporate shield stymies the goals of the OSH Act.” The ALJ further determined that no fraudulent intent was necessary to pierce the corporate veil. Thus, employers with no meaningful distinction between the individual owner and the corporate entity have exposure under a similar veil-piercing theory of liability.
“When employers refuse to comply with the law repeatedly and place their employees’ lives at risk by not ensuring the use of fall protection, the U.S. Department of Labor will hold them accountable, including by imposing individual liability if appropriate,” said the Regional Solicitor of Labor Maia Fisher who litigated the case for OSHA. “And if, like Shawn Purvis, a cited employer does not accept responsibility for its safety violations and fix them, we will use all legal tools available to get them to do so, including going to trial.”
Employers and supervisors should take heed: Corporate protections may not shield you from personal liability for OSHA penalties.
Criminal Charges for OSHA Violations Can Lead to Arrest
For employers with a history of worker safety violations, the SOL and OSHA may refer cases to the United States Department of Justice for criminal prosecution. In her Enforcement Report, the SOL cited two such cases that were prosecuted in 2023.
In one case, a New York roofing company and its owner racked up 24 willful citations between 2019 and 2023. During this period, two workers died after falling on the job. The employer, Jose Lema Mizhirumbay, was arrested in July 2023 for “willfully violating OSHA regulations, resulting in the death of an employee.” The case is currently being prosecuted by the U.S. Attorney’s Office. The maximum potential sentence is six months in prison and a maximum fine of $250,000.
In another case, Nebraska roofing contractor Francisco Esquivel received multiple OSHA citations for serious safety violations, including for the failure to use fall protection. After Esquivel failed to abate his safety violations, the SOL asked a federal Court of Appeals to enforce the abatement orders. In September 2023, Esquivel was arrested for contempt of court and only released from custody after he agreed to an interim plan to cease and desist all business operations until a compliance plan was submitted.
This month, a federal judge handed down prison sentences to grain mill officials for obstructing an OSHA investigation into a 2017 fatal explosion.
OSHA violations – especially repeat, willful, and failure to abate – can and do lead to criminal penalties and enforcement.
What Is the Office of the Solicitor?
The Office of the Solicitor provides legal advice and litigation support to the Department of Labor. The Office of the Solicitor is the second-largest litigation department in the U.S. federal government with about 400 lawyers in national and regional offices. These attorneys are tasked with supporting client agencies within the Department of Labor, including OSHA, by identifying and developing evidence to enforce civil and criminal actions and pursuing litigation.
Employers: Take OSHA Violations Seriously
OSHA has the power to refer employers to the United States Department of Justice for criminal enforcement. Willful violations that cause the death of any employee are punishable by imprisonment and/or a fine.
Contact an OSHA defense attorney immediately should a workplace incident result in a fatality. Your business, your personal finances, and even your freedom could be at risk. Penalties for criminal acts under the Occupational Safety and Health Act include up to six months in federal prison and up to a $250,000 personal fine.
[1] The complaint initially identified Shaw D. Purvis d/b/a Purvis Home Improvement Co., Inc. as the Respondent; however, the Secretary later amended the Complaint to add Purvis Home Improvement Co., Inc. as an alternative Respondent. Purvis Home Improvement Co., Inc. was incorporated in the State of Maine in 2005.
