On December 17, 2015, the U.S. Departments of Justice (DOJ) and Labor (DOL) announced a new memorandum of understanding (MOU) to increase the frequency and effectiveness of criminal prosecutions of so-called worker endangerment statutes. The MOU transfers the prosecution of violations of some statutes – the Occupational Safety and Health (OSH) Act, the Mine Safety and Health (MSH) Act, and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) – from the DOJ Criminal Division’s Fraud Section to the DOJ’s Environment and Natural Resource Division’s Environmental Crimes Section. The memorandum says that the DOJ has trained “hundreds” of inspectors to recognize and document prosecutable offenses, and that it would be providing a designated Criminal Coordinator from the DOL to work with local U.S. district attorneys on prosecuting these crimes.
This announcement follows the DOJ’s criminal conviction of former Massey Energy CEO Don Blankenship of just one misdemeanor charge following the death of 29 miners in the Upper Big Branch mine explosion. Mr. Blankenship was convicted of one misdemeanor count of conspiring to violate MSHA provisions. In a substantial defeat for the DOJ, the verdict exonerated Mr. Blankenship of felony charges of securities fraud and false statements that could have led to a prison term of 30 years. As it stands, when he is sentenced, Mr. Blankenship will likely get less than 12 months in prison.
Although there is no change in the law as a result of the MOU, it is a strong indicator that OSHA and other governmental entities are seeking to increase their efforts to hold employers accountable for criminal violations that put workers in danger by focusing on individual liability.
There are three types of criminal conduct under the OSH Act: (1) willfully violating a specific standard, and thus causing the death of an employee, (2) giving advance notice of OSHA inspection activity, and (3) falsification of documents filed or required to be maintained under the OSH Act. Employers rarely face criminal charges for workplace health and safety violations, even when employees are killed, because these crimes are misdemeanors with a maximum six-month sentence. Already overburdened U.S. attorneys do not want to spend time on such minor cases.
However, criminal prosecution can also occur under general federal criminal law for making false statements to a government investigator, obstruction of justice (usually through document or evidence destruction), witness tampering, and conspiracy. These general federal criminal law provisions are felonies that can carry 25-year prison sentences. When these issues are combined with a willful violation resulting in a death, DOJ prosecutors are more interested in pursuing the case.
As an example, in January 2015, OSHA cited Jenkintown, Pennsylvania.-based James J. McCullagh Roofing Inc. for 10 alleged safety violations – including three willful violations – following its investigation of the fatal June 2013 accident in which the worker fell 45 feet while performing roofing repairs on a church in Philadelphia. Thereafter in June, the DOJ charged the company owner with four counts of making false statements, one count of obstruction of justice and one count of willfully violating an OSHA regulation causing death to an employee. On December 9, he pleaded guilty to all charges. The owner has yet to be sentenced.
Although these prosecutions have been rare, managers should be aware of the renewed interest and potential issues, and should coordinate any OSHA inspection with counsel immediately. Coordinating with counsel and clearly establishing that any responses are that of the company and not of an individual will help reduce the chance that there is individual liability arising from an inspection.