On December 17, 2015, the Department of Justice (DOJ) and the Department of Labor (DOL) signed a Memorandum of Understanding (MOU) to better coordinate criminal prosecutions of worker safety and health law violations. The MOU provides specific points of contact in each department for criminal referrals of employer violations of the Occupational Safety and Health Act (OSH Act), the Mine Safety and Health Act (Mine Act) and the Migrant and Seasonal Agricultural Worker Protection Act (Migrant Worker Act). The MOU also contains provisions for data sharing between the two departments and joint training regarding criminal violation referrals. The goal of the MOU is to increase the frequency and overall effectiveness of criminal prosecution of worker health and safety law violations. The DOJ already had been focusing on environmental crimes involving worker injuries. The expanded initiative 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.
Employers are subject to criminal penalties and imprisonment for willful violations of an Occupational Safety and Health Administration (OSHA) standard that causes an employee’s death, knowing or willful violations of mandatory Mine Safety and Health Administration (MSHA) standards and of the Migrant Worker Act, giving advance notice of OSHA or MSHA inspections, or falsifying any document required to be filed or completed under the OSH Act, the Mine Act or their corresponding regulations. The DOL has responsibility for enforcing violations of the OSH Act, Mine Act and Migrant Worker Act. The DOJ and the Office of the United States Attorney have joint responsibility for prosecuting criminal violations of those laws.
The MOU transfers the DOJ’s criminal enforcement of OSH Act, Mine Act and Migrant Worker Act violations from the DOJ’s Criminal Division’s Fraud Section, which has limited legal resources, to the Environmental Crimes Section (ECS) of the DOJ’s 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 MOU also establishes a process by which criminal referrals from OSHA and MSHA to the DOJ will be handled. First, the MOU designates point persons from each agency and department to coordinate criminal referrals. Second, the MOU 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 ECS, or to a U.S. Attorney with a copy to the ECS. Third, the MOU provides that the DOL will share all necessary information, including investigative files, with the DOJ. Finally, the MOU provides that the DOL and DOJ will develop joint training programs for its personnel regarding criminal prosecution of worker health and safety law violations. As a result of the MOU, employers and management employees can expect to experience more frequent and more rigorous criminal prosecutions of OSH Act, Mine Act and Migrant Worker Act violations.