When whistleblowers report unlawful conduct in the workplace to management or regulators, they often face serious negative consequences to their careers and reputations. Employees who take these risks by refusing to ignore or participate in wrongdoing usually do so to prevent serious harm to their company, coworkers or fellow citizens. Sometimes this harm is financial, such as fraud against investors through violation of securities regulations or fraud against taxpayers through unlawful Medicare practices at a hospital or doctor’s office. In situations where an employer is violating health and safety regulations, however, the potential harm to coworkers, customers or residents near a worksite is physical and sometimes even fatal. High-profile examples of health and safety violations with tragic consequences include the deaths of three workers in an oil rig explosion in the Gulf of Mexico in 2012 and the severe environmental harms that resulted from the Deepwater Horizon spill in 2010.
To address the seriousness of health and safety violations, the Department of Justice (DOJ) and Department of Labor (DOL) have recently announced an expansion of the Worker Safety Initiative to step up criminal prosecution of employers and individuals whose conduct leads to illness, injury, death or environmental harm. The agencies announced the new cooperative effort in a Memorandum of Understanding (MOU) released in December 2015. Under the MOU, the DOL will actively review regulatory investigations for any potential criminal violations and will refer matters to the DOJ offices when it appears that misconduct violates criminal statutes.
This post will provide insights into the MOU and how it could affect whistleblower enforcement and penalties.
DOL and DOJ Whistleblower Enforcement Explained
Cooperation between the DOJ and DOL on worker safety issues is a vital part of protecting employees because the two agencies have different tools to deter and punish employer misconduct.
The DOL is authorized to enforce regulations set out in a number of health and safety statutes, some of which apply to all workplaces and some of which have specific provisions for certain industries (such as mining, chemical manufacturing, etc.). If the DOL finds that an employer has violated these regulations, the agency has authority to impose fines and mandate compliance.
The DOJ’s role in protecting worker health and safety is more limited but also has the potential for greater impact through its authority to bring criminal charges against individuals and companies. The DOJ can pursue charges under criminal provisions that are set out in health and safety statutes, such as the criminal offense of falsifying regulatory documents in the Occupational Safety and Health Act, or under general criminal laws.
Punishing Violators to the Fullest Extent
In addition to the new practices set out in the MOU, the expansion of the Worker Safety Initiative also includes a policy shift at the DOJ to encourage federal prosecutors to actively seek as many, and as serious, criminal charges as the law allows when employers have engaged in conduct that endangers or harms workers.
At the same time that the MOU was announced, Deputy Attorney General Sarah Quillian Yates issued a Memorandum to all United States Attorneys instructing that they should not only cooperate with the DOL to learn of possible criminal offenses through regulatory investigations, but also to look beyond health and safety laws to more general felony criminal offenses when making charging decisions. While the criminal provisions set out specifically in health and safety statues are important, they are misdemeanor offenses with relatively minor penalties of fines under $10,000 and prison terms of fewer than six months.
In her recent memorandum, Deputy Attorney General Yates’ directed local prosecutors to consider felony charges—such as obstruction of justice, witness tampering, etc.—where appropriate in health and safety cases, for two main reasons. First, felony charges provide a more adequate punishment for conduct that has resulted in severe harm to individuals and communities. Second, the potential for dramatically high financial penalties and/or incarceration provides a significant deterrent to companies that might otherwise opt to save costs rather than invest in important health and safety practices.
Strict Penalties Are Key to Deterrence
The DOL/DOJ Memorandum of Understanding and the DOJ’s new focus on maximizing its authority to bring criminal charges in health and safety cases are both positive steps on behalf of all workers. The public relies on regulators and whistleblowers to bring attention to risks in the workplace to prevent harm, but unfortunately, some employers will always take short cuts. When short-sighted decisions put people or the environment in harm’s way, criminal penalties are a crucial tool for punishment and deterrence.