A felony charge brought against the owner of Zeeland Township construction firm Black River Builders by the Michigan Attorney General’s office was dismissed by a Kent County judge in late May.
Joe Novak was personally charged with violating the Michigan Occupational Safety & Health Act after one of his sub-contracted workers fell through a roof deck of the Federal Mogul Corp. building in Sparta in 2012. Brian Tarachanowicz, who was not using personal fall protection gear, was killed when he fell 26 feet onto a concrete slab.
The law states an employer who “willfully violates” the MiOSHA act can be sentenced to a maximum of one year in prison, plus fined.
A MiOSHA inspection found other employees who had been working on the roof project were not wearing fall protection equipment. MiOSHA also determined that no engineering survey or daily inspections of the roof had been done as required to determine if there were unsafe conditions.
Kent County Circuit Court Judge Paul Sullivan agreed with Novak’s attorneys, who argued that criminal charges should have been brought against Black River Builders.
Andrew Bitely, a spokesperson for the Attorney General’s office, said last week there had not been a decision about whether the case would be taken to the Michigan Court of Appeals, or if the charge would instead be brought against the corporation.
According to law professor Nelson Miller, criminal prosecution has occurred in the past in Michigan against both an employer corporation and a responsible supervisor for willful violation of MiOSHA.
In 2002 in Monroe County, a foreman for the J.A. Morrin Concrete Construction Co. of Toledo was sentenced to 360 days in jail and three years of probation for the death of an employee, the first time in the state an employer was served to imprisonment for violation of MiOSHA, according to the Winter 2003 MiOSHA News.
Miller, who is a professor of employment law and associate dean of the WMU-Cooley Law School Grand Rapids campus, said other states have laws based on OSHA principles that are criminal prosecutions for willful violations of their act, but those are misdemeanor charges. Michigan’s act is different: It labels willful violations a felony.
He said part of the reason criminal prosecutions are rare is “because of the corporate responsibility issue raised in this recent case. The employer bears the responsibilities under the act. The act's felony provision, MCL 408.1035(5), specifically refers to ‘an employer.’”
The act in full states: An employer who willfully violates this act, an order issued pursuant to this act, or a rule or standard promulgated under this act which causes the death of an employee is guilty of a felony and shall be fined not more than $10,000, or imprisoned for not more than 1 year, or both. If the conviction is the second under this act, the person shall be fined not more than $20,000, or imprisoned for not more than 3 years, or both."
Miller said despite the fact that the act’s felony provision refers specifically to “an employer,” the Michigan act and its implementation history “suggest some possibility, however slim the probability may be, of prosecutions of individual supervisors.”
“The act’s definition of willful violation — requiring knowledge of the violation and purpose to violate — is key to criminal prosecutions under the Act,” said Miller. “The complete definition … refers to ‘an individual’ rather than ‘an employer.’"
Novak’s legal team argued the criminal charges should have been filed against the corporation, not an individual, because the individual and the corporation are two separate legal entities.
Assistant Attorney General Paul Cusick argued that Novak was the sole owner of Black River Builders and was supervising at the site when Tarachanowicz was killed.
Novak’s attorneys were Mike Bartish from Springstead & Bartish, and Paul Van Oostenburg, E. Thomas McCarthy Jr. and Stephanie C. Hoffer from Smith Haughey Rice & Roegge.
“Interestingly, the Michigan Attorney General rather than the local county prosecutor decides whether to issue a felony charge under the act,” said Miller. “Under MCL 408.1037, the MiOSHA agency investigates the death and turns the results of its investigation over to the agency attorney, effectively to the state Attorney General's office. An American Bar Association publication from a few years ago indicates … that the MiOSHA investigators use a Willful Violation Worksheet to decide whether to seek charges, with the main factor whether the employer had a ‘heightened awareness’ of the hazard.”