Introduction

On December 17 2015 the Department of Justice (DOJ) and the Department of Labour (DOL) signed a memorandum of understanding to coordinate criminal prosecutions of worker safety and health law violations. The memorandum of understanding provides specific points of contact in each department for criminal referrals of employer violations of:

  • the Occupational Safety and Health Act;
  • the Mine Safety and Health Act (Mine Act); and
  • the Migrant and Seasonal Agricultural Worker Protection Act (Migrant Worker Act).

It also contains provisions for data sharing between the two departments and joint training regarding criminal violation referrals.

The goal of the memorandum of understanding is to increase the frequency and overall effectiveness of criminal prosecution of violations of worker health and safety law. The DOJ had already been focusing on environmental crimes involving worker injuries; the expanded initiative now adds more tools and statutes to its toolkit. Industry can expect incidents that result in serious worker injury or death to be the subject of significant federal scrutiny where covered by this initiative.

Legal framework and penalties

Employers are subject to criminal penalties and imprisonment for:

  • wilful violations of an Occupational Safety and Health Administration (OSHA) standard that causes an employee's death;
  • knowing or wilful violations of mandatory Mine Safety and Health Administration (MSHA) standards and of the Migrant Worker Act;
  • giving advance notice of OSHA or MSHA inspections; and
  • falsifying any document required to be filed or completed under the Occupational Safety and Health Act, the Mine Act or their corresponding regulations.

The DOL has responsibility for enforcing violations of the Occupational Safety and Health Act, the Mine Act and the Migrant Worker Act. The DOJ and the Office of the United States Attorney have joint responsibility for prosecuting criminal violations of those laws.

Memorandum of understanding

The memorandum of understanding transfers the DOJ's criminal enforcement of Occupational Safety and Health Act, Mine Act and Migrant Worker Act violations from the fraud section of the criminal division – which has limited legal resources – to the environmental crimes section of the environment and natural resources division, which has many more attorneys and criminal investigators at its disposal and has been aggressively prosecuting worker endangerment crimes under environmental laws for the past decade.

The memorandum of understanding also establishes a process by which criminal referrals from the OSHA and the MSHA to the DOJ will be handled. First, the memorandum of understanding designates point persons from each agency and department to coordinate criminal referrals. Second, it provides that for each criminal referral, the appropriate DOL contact will prepare and submit a memorandum that recites in detail the reasons for the referral either to the environmental crimes section or to a US attorney with a copy to the environmental crimes section. Third, the memorandum of understanding provides that the DOL will share all necessary information – including investigative files – with the DOJ. Finally, it provides that the DOL and DOJ will develop joint training programmes for their personnel regarding the criminal prosecution of worker health and safety law violations.

As a result of the memorandum of understanding, employers and management employees can expect to experience more frequent and rigorous criminal prosecutions of Occupational Safety and Health Act, Mine Act and Migrant Worker Act violations.

For further information on this topic please contact Patrick Casey or Robert M Olian at Sidley Austin LLP's Chicago office by telephone (+1 312 853 7000) or email (pcasey@sidley.com or rolian@sidley.com). Alternatively, contact David T Buente Jr or Timothy Webster at Sidley Austin's New York office by telephone (+1 212 839 5300) or email (dbuente@sidley.com or twebster@sidley.com). The Sidley Austin website can be accessed at www.sidley.com.

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