In this case, we consider whether Federal regulation of workplace safety under the Occupational Safety and Health Act of 1970 (29 USC § 651 et seq.) (the Act) preempts New York’s efforts to punish culpable employer conduct under its general criminal laws. We conclude that the Act does not expressly or impliedly preempt State prosecution of employers whose criminal activity happens to be centered in the workplace or directed against employees. The order of the Appellate Division reinstating the jury’s guilty verdict against these defendants should therefore be affirmed.
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The corporate defendants Pymm Thermometer Corporation (PTC) and Pak Glass Machinery Corporation (Pak Glass) are domestic corporations that operate on two separate floors of the same Brooklyn building. PTC, which is located on the second floor, manufactures thermometers for clinical use, while Pak Glass, located on the ground floor, services and repairs the machinery used by PTC. Defendant William Pymm was vice-president of both corporations from 1981 to 1984 and has been their president since 1984. Defendant Edward Pymm, Jr. holds the title of vice-president and has served as plant manager for both operations since 1981.
Mercury contamination has been an ongoing problem at PTC, posing a serious health risk to PTC’s employees. The mercury used to fill the thermometers, although a liquid at normal temperatures, readily evaporates into the surrounding air. Once inhaled, mercury vapor passes from the lungs into
A number of inspections dating back to the early 1970’s revealed that workers at PTC’s second floor manufacturing facility were not adequately protected from the dangers of mercury poisoning. Before the enactment of the Act, the Division of Industrial Hygiene of the State Department of Labor monitored workplace safety at PTC by conducting semiannual inspections of the PTC plant. In 1975, the Occupational Safety and Health Administration (OSHA). assumed responsibility for workplace safety. OSHA conducted four inspections of the facility between 1981 and 1984. These inspections revealed hazardous working conditions in the second floor manufacturing area. Workers did not wear protective gear, such as gloves or respirators, and the workplace was dangerously contaminated with mercury. Both William and Edward Pymm were warned of the dangers of mercury poisoning and were encouraged to adopt measures that would minimize the possibility of workers either ingesting liquid mercury or inhaling mercury vapors. PTC was twice cited by OSHA as a result of the workplace conditions observed on the second floor.
In 1985, OSHA learned that PTC was operating a clandestine mercury reclamation operation in the basement of the building. The defendants had omitted the basement area from any of the earlier inspections, despite the fact that OSHA inspectors had asked to see all of the area in which mercury was being used. When OSHA agents first confronted William Pymm about the reclamation facility, he denied that it even existed. Testimony at trial established that PTC had been recovering the mercury from broken thermometers since 1983. Vidal Rodriguez, a PTC employee since 1981, testified that he had fed the broken thermometers into a glass crusher as part of the reclamation process. The machine ground the thermometers, releasing the mercury, which was passed into a filtra
Defendants were charged with conspiracy in the fifth degree (Penal Law § 105.05 [1]); falsifying business records in the first degree (Penal Law § 175.10); assault in the first degree (Penal Law § 120.10 [4]); assault in the second degree (Penal Law § 120.05 [4]); and reckless endangerment in the second degree (Penal Law § 120.20). The jury found the defendants guilty of all counts in the indictment. The Trial Justice set aside the verdict, holding that the State prosecution was preempted by the Federal Government’s regulation of workplace safety under the Act. Additionally, the Trial Justice ruled that the evidence was legally insufficient to support the conspiracy and reckless endangerment counts of the indictment. The Appellate Division reversed, and we now affirm.
IL
The Act was enacted "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions” (29 USC § 651 [b]). In declaring the purposes behind the Act, Congress also noted the importance of encouraging employers "to reduce the number of occupational safety and health hazards at their places of employment, and * * * to institute new and to perfect existing programs for providing safe and healthful working conditions” (29 USC § 651 [b] [1]). The Act directs the Secretary of Labor to promulgate health and safety standards for the workplace (see, 29 USC § 655) and authorizes the Secretary to conduct inspections and investigations to ensure that employers are complying with these standards. Section 5 requires employers to comply with all standards promulgated by the Secretary of
The Act provides for both civil and criminal penalties for certain types of violations. These are spelled out in section 17 (Pub L 91-596, § 17, 29 USC § 666). In brief, willful or repeat violations of either a standard or of the general duty to provide a safe workplace are punishable by a civil penalty of not more than $10,000 (29 USC § 666 [a]). Serious violations are punishable by a civil penalty of up to $1,000 for each violation (29 USC § 666 [b]). A serious violation exists "if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment” (29 USC § 666 [k]). Willful violations leading to the death of an employee are punishable, after conviction, by criminal fines and up to six months’ imprisonment.
Section 18 addresses State jurisdiction over occupational health and safety issues (29 USC § 667). Section 18 (a) provides that a State is free to assert jurisdiction over such an issue if there is no Federal standard already in effect (Pub L 91-596, § 18 [a], 29 USC § 667 [a]). Section 18 (b) permits each State to submit its own plan for the development and enforcement of workplace health and safety standards to the Secretary of Labor for approval. If the State plan is approved, the State can reassume responsibility over workplace issues that are already the subject of Federal standards (29 USC § 667 [b]). The Secretary cannot approve the State plan unless it is "at least as effective in providing safe and healthful employment and places of employment” as the Federal standard already in place (29 USC § 667 [c] [2]).
The Act also contains a savings clause that addresses the continued viability of State statutory and common-law duties and liabilities in light of the comprehensive Federal regula
Ill
The appellants argue that the Act’s extensive scheme for regulation of occupational health and safety preempts State enforcement of general criminal laws to punish conduct that arises out of an employer’s failure to provide his employees with a safe workplace. It is a well-established principle that the Supremacy Clause of the United States Constitution (art VI, cl 2) invalidates State laws that "interfere with, or are contrary to” Federal law (Gibbons v Ogden, 9 Wheat [22 US] 1, 211). State laws can be preempted by Federal regulations as well as by Federal statutes (see, e.g., Hillsborough County v Automated Med. Labs.,
As a preliminary matter, we note that "[wjhere * * * the field which Congress is said to have pre-empted has been traditionally occupied by the States * * * 'we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ ” (Jones v Rath Packing Co.,
Despite the fact that Federal preemption of State criminal law will not be presumed, the appellants argue that their prosecution under New York’s Penal Law is both expressly and impliedly preempted by the Act. We will consider each of these contentions in turn.
Appellants argue that section 18 of the Act expressly preempts the application of State criminal law to workplace conditions that are already subject to a Federal standard. As noted above, section 18 (b) permits States to assume responsibility for the regulation of occupational health and safety issues by submitting a plan to the Secretary of Labor for approval. Appellants contend that because the State of New York has not submitted a plan to the Secretary, the criminal prosecution at issue here is impermissible standard-setting that is expressly preempted by the Act.
Section 18 (b), however, relates only to the development and enforcement of standards, and does not speak to State enforcement of general criminal laws. The Act defines "occupational safety and health standard” as "a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably
Appellants also argue that the State prosecution is impliedly preempted in two ways: first, because Federal regulation occupies the field of occupational health and safety; and second, because enforcement of State criminal law is in conflict with the Act’s comprehensive scheme for workplace regulation. They contend that the penalties imposed here are inconsistent with the penalty scheme contained in the Act and violate Congress’ intent that the penalties contained in the
In reaching our conclusion that Federal regulation of occupational health and safety does not occupy the field, we note first that the comprehensiveness of a Federal statute or regulation does not necessarily indicate that Congress intended it to have preemptive effect. In New York Dept. of Social Servs. v Dublino, the United States Supreme Court stated that "[t]he subjects of modern social and regulatory legislation often by their very nature require intricate and complex responses from the Congress, but without Congress necessarily intending its enactment as the exclusive means of meeting the problem” (
The Act explicitly encourages States to "assume the fullest responsibility for the administration and enforcement of their occupational safety and health laws” (29 USC § 651 [b] [11]). This alone would seem to indicate that Congress believed States should have a continuing role in the oversight of occupational health and safety concerns. Our reading of the detailed provisions for the retention and assumption of State jurisdiction over workplace issues contained in section 18 further convinces us that Congress did not intend to fill the field and preempt State regulation. Rather, it is clear that Congress intended to foster continuing State oversight over the workplace by ensuring that States would continue to exercise jurisdiction where there was no Federal standard in place and by providing that States could decide to reassert jurisdiction and impose stricter health and safety standards than those already in place by submitting a State plan to the Secretary of Labor. Section 18 carefully balances the continued importance of a State’s interest in regulating workplace concerns against the need for minimum standards that ensure some level of employee health and safety.
While enforcement of the State’s Penal Law in the context of workplace safety will necessarily touch upon conduct that is already subject to Federal regulation under the Act, we do not find that this is impermissible or even undesirable. State prosecution of cases such as this one may cause employers to pay stricter attention to the standards promulgated by OSHA. This we find to be entirely consistent with the Act’s self-
Our decision here is also consistent with the United States Supreme Court’s holding in Silkwood v Kerr-McGee Corp. (
It is true that the Act contains limited civil and criminal penalties for willful and repeated violations of standards or of the general duty to provide a safe workplace. That these penalties are so skeletal, however, argues against their being considered preemptive of State criminal law. While the Act imposes criminal liability for willful violations leading to the death of an employee, there is currently no provision for violations leading to serious injury. Given that promotion of worker health and safety is the primary goal of the Act, it would make absolutely no sense to hold that employers who engage in willful criminal conduct, which coincidentally constitutes a violation of an OSHA standard or of the Act’s general duty clause, should be insulated from criminal prosecution simply because the culpable conduct leads to serious injury and not death. Instead, we believe that the Act’s penalties operate as a floor and that States can supplement these penalties with sanctions authorized by their own criminal laws (see, People v Hegedus,
Having concluded that Federal regulation of workplace safety does not occupy the field, we next consider appellants’ arguments that State enforcement of criminal laws in the workplace conflicts with the Federal scheme and is preempted for that reason. We do not accept the appellants’ argument that Congress’ foremost purpose in drafting the Act was to ensure uniformity of workplace health and safety standards and that individual State prosecutions stand as an obstacle to the accomplishment of that purpose. The Act’s detailed provisions for the exercise of State jurisdiction over workplace concerns, when considered together with the savings clause, indicate to us that Congress was willing to accept a multiplicity of regulatory approaches provided that the safety and health of workers were not compromised. We believe that Congress’ concern was not uniformity per se; rather, it was
In that uniformity does not appear to have been Congress’ primary goal in enacting the Act, we believe that State enforcement of criminal law does not conflict with Federal law by "standing] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (Hines v Davidowitz,
In addition, we do not believe that it is a physical impossibility to comply with both State and Federal law in this area, which is the second ground for a finding of conflict preemption. The Act does not require an employer to engage in conduct that is prohibited by the State of New York, nor is the reverse true.
Finally, we would conclude by noting that our holding today is consistent with decisions from the Supreme Courts of Illinois and Michigan, which have already considered this same issue (People v Hegedus,
Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.
Order affirmed.