The April 6, 2016 sentencing of the former Massey Energy executive Donald L. Blankenship to a year in prison for conspiring to violate mine safety standards, along with several other important developments, highlight the government’s increased focus on enforcing worker safety laws. The investigation and prosecution of Mr. Blankenship was prompted by an explosion at the Massey Upper Big Branch Mine, which resulted in the death of 29 people. The United States Department of Justice has recently asserted a renewed interest in pursuing criminal cases related to worker safety and the Blankenship’s sentence may embolden prosecutors as they look to prosecute new cases in this area.

In December 2015, Deputy Attorney General Sally Quillian Yates issued a memorandum announcing that federal prosecutors will consider a broad array of charging theories when developing cases involving worker safety, and will seek to take advantage of the greater penalties available under environmental and other criminal laws. Furthermore, in recent remarks at the National Press Club in Washington, DC, Assistant Attorney General John C. Cruden reiterated the Department’s focus on worker safety issues, leaving no doubt that worker safety is now one of the Department’s highest enforcement priorities.

In his remarks, Mr. Cruden recounted that “[o]n an average day in the United States, approximately 13 workers die on the job, about 9,000 workers are injured, and 150 succumb to occupational diseases like asbestosis and chemical poisoning.” Mr. Cruden characterized worker safety offenses as having been historically under-enforced, and criminal penalties in worker safety laws “woefully inadequate.” Noting that worker safety statutes generally provide for only misdemeanor violations, carrying sentences of under one year, Mr. Cruden surmised that employers often treat Occupational Safety and Health Act (OSH Act) penalties as a “cost of doing business and not a deterrent to non-compliance with the laws.”

Mr. Cruden further explained that the Department believes that employers that are “willing to cut corners on worker safety laws to maximize production and profit” are just as likely to “turn a blind eye” to other laws, especially environmental laws. Assistant Secretary for Occupational Safety and Health Dr. David Michaels recently summarized the government’s position as follows: “[W]e know that strong sanctions are the best tool to ensure that low road employers comply with the law and protect workers’ lives. More frequent and effective prosecution of these crimes will send a strong message to those employers who fail to provide a safe workplace for their employees.”

When Deputy Attorney General Yates formally launched the Department’s new Worker Endangerment Initiative, she announced that the Department’s Environmental and Natural Resources Division (ENRD) would now have responsibility for investigating and prosecuting criminal worker safety violations. In a memorandum issued to all 93 US Attorneys across the country, Ms. Yates directed federal prosecutors to work with ENRD and the Department of Labor’s Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA) and Wage and Hour Division (WHD) to investigate and prosecute worker endangerment violations. Ms. Yates also signed a Memorandum of Understanding (MOU) between the Department of Justice and the Department of Labor establishing a framework for coordinating between the two agencies. Pursuant to the MOU, OSHA, MSHA, and WHD will “discuss periodically with the DOJ those employers or worker safety matters that may be appropriate for enhanced investigation or criminal referral.” DOL must now share investigative files with DOJ for case development or litigation purposes, and both departments must implement training programs designed to “increase the frequency and effectiveness of criminal prosecutions of worker-safety violations.”

Explaining that worker safety violations often occur in tandem with other serious crimes, Ms. Yates also announced amendments to the US Attorneys’ Manual encouraging prosecutors to prosecute worker safety violations utilizing not only the traditional worker safety laws, but also Title 18 offenses (such as obstruction of justice, false statements, and conspiracy) and environmental laws. Doing so will “enhance penalties and increase deterrence,” as these laws provide for felony violations carrying maximum terms of imprisonment of up to 20 years, as well as significant fines. Moreover, environmental crimes are in many cases easier to prove than worker safety crimes, as most require only that the defendant act “knowingly”—meaning that he or she knows the facts of his or her actions—and not willfully, which would require that the defendant recognize that his or her actions are prohibited by law or wrongful. The endangerment provisions of the Clean Air Act, Clean Water Act, and Resource Conservation and Recovery Act, for example, impose liability where the defendant knowingly commits an underlying pollution crime and knows that this conduct would place another person in imminent danger. The Clean Air Act includes a negligent endangerment offense which requires yet an even lower mental threshold, and still provides for criminal penalties of up to one year in prison.

In addition to increased criminal prosecutions, ENRD is enhancing its civil enforcement efforts as part of its Worker Endangerment Initiative. ENRD is strengthening its efforts to pursue civil cases that involve worker safety violations under the Clean Air, Clean Water, Resource Conservation and Recovery and Toxic Substances Control Acts. As Mr. Cruden noted in his recent remarks, “the Environmental Enforcement Section’s work has produced results and there are several pending cases with worker safety components.” ENRD is also coordinating with OSHA in developing settlement frameworks and demands for injunctive relief, cross-training between federal agencies such as OSHA and EPA, sharing information between various agencies to accelerate case development, and ensuring that every case referral is reviewed for worker safety concerns.

Given the Department’s increased focus on worker endangerment, many employers should consider an internal evaluation of environmental, health and safety risks, and practices and policies. Corporate audits conducted under attorney-client privilege can be quite valuable for identifying potential areas of risk and, when necessary, providing a framework for remediation. And, although the Worker Endangerment Initiative is federal, companies carrying out such audits should remain mindful of the potential for state law enforcement. In California, for example, the California Labor Code provides for criminal liability for employees responsible for violation of “any occupational safety or health standard” if that violation causes death or prolonged bodily impairment of an employee. Of course, each circumstance is highly fact-specific and companies should evaluate a variety of factors when developing an appropriate internal investigation, including reporting requirements, privilege, self-audit rules and all applicable regulatory obligations.