Increased Criminal Enforcement for Worker Safety Violations?

In 2010, the Occupational Safety and Health Administration (OSHA) let employers know there was a new sheriff in town. Now there will be a new police force as well. On December 17, 2015, the U.S. Department of Justice (DOJ) announced the expansion of the Worker Endangerment Initiative. In its announcement, the DOJ stated this was a new plan for prosecuting Occupational Safety and Health (OSH) Act and Federal Mine Safety and Health Act (Mine Act) crimes. 

The change authorizes the DOJ’s Environment and Natural Resources Division (ENRD) to prosecute worker safety statute violations. The DOJ also has directed prosecutors to work to uncover environmental crimes under Title 40 of the U.S. Code of Federal Regulations and other federal crimes under Title 18 of the United States Code, “which often occur in conjunction with worker safety crimes.”  

A Memorandum of Understanding between the DOJ and U.S. Department of Labor (DOL) regarding Criminal Prosecutions of Worker Safety Laws accompanied the press release. It calls for the DOL to select and prepare the referrals for prosecution. This will include the DOL’s investigation files and relevant employer confidential information. In addition, the DOJ and DOL will conduct cross-training programs to facilitate identification of potential crimes and preparation of the referrals. 

In a Memorandum sent to all U.S. Attorneys the same day, Deputy Attorney General Sally Quillian Yates encouraged them to consider criminal referrals from the DOL. Yates suggested that the low penalties and “handful of reported criminal prosecutions” associated with OSH Act misdemeanors reflects a problem in enforcement. One of the steps proposed to address the issue includes amending the U.S. Attorneys’ Manual to address criminal prosecutions under the OSH Act, the Mine Act, and other statutes. Yates also called for all offices to appoint an attorney to actively engage with the Environmental Crimes Section of the ENRD for the purpose of handling the planned referrals.

Whether this new initiative leads to increased criminal enforcement for safety violations remains to be seen. Some observers predict that criminal prosecutions will continue to be reserved only for the most egregious of safety cases.  Regardless, it will be important for employers and their counsel to be mindful of the possibility of criminal prosecution whenever serious safety and health violations are investigated by OSHA or the Mine Safety and Health Administration.