ELR Citation: ELR 20623
No(s). 83601 (Mich. Jul 3, 1989)

The court holds that the Occupational Safety and Health Act (OSH Act) does not preempt a state criminal manslaughter action. The intermediate appeals court had found, sua sponte, that the OSH Act preempted criminal prosecution of a company supervisor for involuntary manslaughter of an employee who died of carbon monoxide intoxication while working in a company-owned van. The Supreme Court reverses, concluding that Congress did not intend to preclude the enforcement of state criminal laws simply because the alleged criminal activity occurred in the employment setting. Starting its analysis of whether express, implied, or conflict preemption had occurred, the court notes that historic state police powers are not preempted by a federal act unless that was Congress' clear and manifest intent. The court first holds that the preemptive language in §18(b) of the OSH Act is expressly limited to the development and enforcement of state standards relating to occupational safety and health. Next, the court holds that §17(e) of the OSH Act, which provides criminal sanctions for the willful violation of a specific standard that results in an employee's death, is not a standard preempted by §18(b) because it does not literally prescribe or proscribe conduct. Instead, §17(e) is a penalty provision and §18(b) preempts only state standards relating to workplace safety and health with respect to which no federal standard exists. Similarly, the court holds that the manslaughter statute under which the defendant was charged is not a standard and is not subject to the §18(b) approval process. Invoking a federal circuit court ruling that §18 of the OSH Act does not preempt state or local regulations that have a legitimate purpose apart from promoting occupational health and safety, the court concludes that Michigan has a legitimate and substantial interest in enforcing its criminal laws, apart from regulating occupational safety and health. Whereas the OSH Act is concerned with protecting employees from specific occupational safety and health hazards, the state is concerned with protecting employees as members of the general public from criminal conduct, whether that conduct occurs in public or in private, in the home or in the workplace. Thus, the court concludes that §18 was not intended to deprive citizens, merely by virtue of their status as employees, of the historic protection of state criminal laws.

The court notes that the inclusion of a saving clause in OSH Act §4(b)(4), although perhaps never intended by Congress specifically to save criminal law from preemption, is best read to include criminal laws among those laws specifically not superseded. The court also relies on its own commonsense interpretation of Supremacy Clause preemption analysis established by the U.S. Supreme Court. Introducing a hypothetical in which an explosion occurs in a factory as a result of hazardous conditions amounting both to a violation of a specific OSH Act standard and to criminal negligence, the court observes that it would be unreasonable to interpret the provision in §17(e) of six months imprisonment as preempting a state criminal prosecution of an employer for an employee's death, while the state's ability to prosecute the deaths of any visitors, passersby, or members of the surrounding community is unaffected. Moreover, if the employer actually intended to cause the employees' deaths, no reasonable construction of §17 would allow the state to be precluded from charging the employer with murder, instead having to settle for a six-month prison term for willful violation of an OSH Act standard. Finally, the court concludes that Congress, merely by including in the OSH Act a few minor criminal sanctions for willful violations that result in death, did not intend to subordinate the traditional state police powers to the extent that the state is unable to enforce its law against serious criminal conduct directed at its citizens.

Counsel for Appellant
L. Brooks Patterson, Prosecuting Attorney
3001 W. Big Beaver Rd., Ste. 200, Troy MI 48084
(313) 643-7300

Counsel for Appellee
Kenneth M. McGill
Dickinson, Wright, Moon, Van Dusen & Freeman
800 First National Bldg., Detroit MI 48226
(313) 962-7210

RILEY, C.J., and GRIFFIN, CAVANAGH, LEVIN, BRICKLEY, and ARCHER, JJ., concur.