New "Worker Endangerment Initiative" May Increase Criminal Prosecutions of Workplace Safety Violations

by Sherman & Howard L.L.C.

On December 17, 2015, the Department of Labor (DOL) and the Department of Justice (DOJ) announced a plan to increase the frequency and effectiveness of criminal prosecutions of safety and environmental violations affecting workers − the “Worker Endangerment Initiative.” A new “Memorandum of Understanding” between the DOL and the DOJ explains how the Occupational Safety and Health Administration (OSHA), the Mine Safety and Health Administration (MSHA), the Wage and Hour Division (WHD), and the DOJ will cooperate more closely to investigate and where appropriate, refer employers for criminal prosecution. Only the DOJ can seek criminal prosecutions in the federal courts.

The Initiative envisions that alleged criminal violations of OSHA, MSHA, and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) will be combined with environmental crimes − such as asbestos violations under the Clean Air Act − or other federal offenses occurring during the course of an investigation − such as false statements or obstruction of justice − in a single prosecution. As the law currently stands, some OSHA, MSHA, and MSPA criminal violations are classified as misdemeanors with relatively small penalties. Corporate employers, not individual managers or supervisors, are often the only defendant. Because of these limitations, federal prosecutors have been reluctant to undertake a significant number of OSHA or MSHA criminal prosecutions. The DOJ reports that in 2013, for example, only three OSHA cases were referred for criminal prosecution.

On the other hand, some environmental crimes and other federal offenses are felonies that carry jail time for individuals and significant fines in the millions of dollars. By bundling OSHA, MSHA and MSPA criminal violations with environmental and other federal violations, the government believes it has created a bigger and better tool to deter and punish workplace safety crimes. The Initiative does not create any new laws, standards or obligations. Instead, it makes the criminal enforcement of existing worker safety laws a new priority.

Only time will tell whether the new Initiative will result in increased criminal prosecutions of workplace safety and health violations. In any event, we do not envision criminal prosecutions becoming commonplace. Instead, we believe criminal prosecutions will be reserved for more egregious cases involving deaths, catastrophic injuries or serious employer misconduct, including willful or knowing actions, false statements, or illegal tampering of evidence, to name a few. Still, the prospect of increased criminal prosecution for workplace safety violations should be of concern to all employers. The Obama Administration has made clear its intent to increase enforcement and penalties of worker safety and health laws. This Initiative is, in our view, one more example.

Criminal liability for health and safety violations has always been a risk for employers and our recommendations to avoid or minimize liability remain the same. Special care must be taken in the case of catastrophic accidents, fatalities or other significant inspections, such as those conducted as part of OSHA’s National Emphasis Programs. Because of the potential liability, both civil and criminal, employers should contact legal counsel immediately. Your company’s legal counsel, or your designated inspection representative acting with the advice of counsel, should then closely supervise and monitor all aspects of the inspection. Click here for Sherman & Howard's Employer Guide to OSHA Inspections.

We recommend that both safety and health and environmental personnel in the company be advised of this Initiative. Safety and health staff should understand that OSHA and MSHA are now being trained to identify and refer possible environmental violations, and environmental inspectors are doing the same with respect to possible safety and health hazards. Other red flags indicating an enhanced inspection leading to possible criminal charges include the involvement of government attorneys during the initial investigation, the issuance of subpoenas or search warrants, and extensive witness interviews. To defend the company’s interests, it is critical that legal counsel be involved as soon as possible.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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