Enhanced Criminal Prosecutions of Worker Safety Violations -- Employers Beware
The U.S. Department of Justice (DOJ) and the Department of Labor (DOL)announced last week an expansion of its worker endangerment initiative to address worker safety violations through the use of enhanced criminal fines and penalties.
According to Deputy Attorney General Sally Quillian Yates, "on an average day in America, 13 workers die on the job, thousands are injured and 150 succumb to diseases they obtained from exposure to carcinogens and other toxic and hazardous substances while they worked."
"Given the troubling statistics on workplace deaths and injuries, the Department of Justice is redoubling its efforts to hold accountable those who unlawfully jeopardize workers' health and safety." Department of Labor Deputy Secretary Chris Lu stated that "today's announcement demonstrates a renewed commitment by both the Department of Labor and the Department of Justice to utilize criminal prosecution as an enforcement tool to protect the health and safety of workers." DOJ News Release (December 17, 2015).
According to the DOJ, last year it held meetings to explore a joint effort to increase the frequency and effectiveness of criminal prosecutions of worker endangerment violations. This culminated in a "decision to consolidate the authorities to pursue worker safety statutes within the Department of Justice's Environment and Natural Resource Division's Environmental Crimes Section." In a December 17, 2015 Memo, sent to all U.S. Attorneys across the country, Deputy Attorney General Yates urged federal prosecutors to work with the Environmental Crimes Section in pursuing criminal prosecutions for worker endangerment violations.
The worker safety statutes had generally provided for only misdemeanor penalties. However, prosecutors have now been encouraged to consider utilizing Title 18 and environmental offenses, "which often occur in conjunction with worker safety crimes," to enhance penalties and increase deterrence. Specifically, the Memo indicates that prosecutors can "make enforcement meaningful" by charging other serious offenses that often occur in association with OSH Act violations. Examples offered include false statements, obstruction of justice, witness tampering, conspiracy, and environmental and endangerment crimes. To facilitate interagency cooperation in implementing this initiative, the DOJ and the DOL have also executed a Memorandum of Understanding on Criminal Prosecutions of Worker Safety Laws (December 17, 2015).
Employers should be leery of these now "added" enforcement authorities. With penalties ranging from five to twenty years of incarceration and significant money fines, criminal enforcement of workplace safety accidents are now significantly more serious.
Seyfarth Shaw LLP - Brent I. Clark, James L. Curtis and Craig B. Simonsen