With the new year comes a new focus on increasing criminal prosecutions against employers for worker safety violations. In the end of December, the Department of Justice (“DOJ”) and the Department of Labor (“DOL”) announced a plan to deter workplace safety violations through more stringent criminal prosecution. Under the new plan, the DOJ will work with the Occupational Safety and Health Administration (“OSHA”), the Mine Safety and Health Administration (“MSHA”), and the Wage and Hour Division (“WHD”) to prosecute worker endangerment violations.
Criminal penalties under the Occupational Safety and Health Act (“OSH Act”) are fairly limited, with imprisonment capped at 6 months and fines capped at $10,000. As part of the new plan, DOJ is encouraging all United States Attorneys to charge employers for other violations that occur in connection with OSH Act violations, such as obstruction of justice, making false statements, witness tampering, and conspiracy. United States Attorneys are also encouraged to consider environmental crimes, which often occur in concurrence with worker safety violations. These offenses carry more significant periods of incarceration and fines.
Assistant Attorney General John C. Cruden for DOJ’s Environment and Natural Resources Division said:
We have seen that employers who are willing to cut corners on worker safety laws to maximize production and profit, will also turn a blind eye to environmental laws. Working with our partners in the Department of Labor and law enforcement, we will remove the profit from these crimes by vigorously prosecuting employers who break safety and environmental laws at the expense of American workers.
Many environmental laws contain broad requirements that can easily be tacked on to a case involving worker safety. For example, the Clean Air Act’s General Duty Clause requires owners and operators of stationary sources to identify hazards that may result from releases of extremely hazardous substances, design and maintain a safe facility taking necessary steps to prevent releases, and minimize the consequences of releases when they do occur. This general duty is extremely broad, particularly given the fact that “extremely hazardous substances” is not defined.
United States Attorneys will have a designated Criminal Coordinator from the DOL. United States Attorneys are encouraged to work with this Criminal Coordinator “to increase the frequency and effectiveness of criminal prosecutions of worker safety violations . . . .”
Given the broad scope of environmental laws, identifying ancillary violations to bolster worker safety violations may not be that difficult. In addition, DOJ has trained OSHA inspectors to recognize other criminal violations. Given DOJ and DOL’s recently announced focus on increasing criminal penalties, employers should be aware of all possible violations that could be used to bolster worker safety violations.