On December 17, 2015, the Department of Justice (“DOJ”) and the Department of Labor (“DOL”) announced an expansion to the Worker Endangerment Initiative intended to increase the frequency and effectiveness of criminal prosecutions for violations of worker safety laws, including the Occupational Safety and Health Act (“OSH Act”). Under the new plan, the DOJ’s Environment and Natural Resources Division (“ENRD”) and U.S. Attorneys’ offices will work with the Department of Labor’s Occupational Safety and Health Administration (“OSHA”), Mine Safety and Health Administration, and Wage and Hour Division to investigate and prosecute worker endangerment violations. As a result, the government will start to bring felony charges against employers for routine worker safety violations, and employers who violate the OSH Act may be subject to the greater penalties available under environmental and other criminal laws.

The OSH Act establishes criminal penalties for certain employers. Under Section 17(e) of the act, an employer may be subject to imprisonment for not more than six months, when it willfully violates any OSHA standard and that violation causes the death of an employee. Employers can also face fines of up to $250,000 for individuals and $500,000 for organizations by operation of the 1984 Comprehensive Crime Control and Criminal Fine Collection Act. In light of the new initiative, prosecutors have now been encouraged to enhance these penalties by charging employers with federal crimes and environmental offenses, which often occur in conjunction with worker safety crimes. In a statement, Assistant Attorney General John C. Cruden for the ENRD said that the DOJ has “seen that employers who are willing to cut corners on worker safety laws to maximize production and profit, will also turn a blind eye to environmental laws.” As such, employers may now be subject to felony convictions under these laws, providing for imprisonment of up to 20 years, as well as criminal fines in addition to those provided under the OSH Act. Commenting on the initiative, Dr. David Michaels, assistant secretary for OSH, noted 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.”

The DOJ and the DOL have issued a Memorandum of Understanding (“MOU”) that establishes a framework for coordinating between the two agencies. Per the MOU, DOL regional solicitors, OSHA regional administrators, and the associate solicitor for the OSH Division are required to discuss with the DOJ those employers who should be subject to enhanced investigation or criminal referral. When referring a matter for consideration of criminal action, the DOL will prepare a detailed referral memorandum and recommendation, which is then provided to either the ENRD’s Environmental Crimes Section or to a U.S. Attorney’s office. The MOU also provides that the DOL’s investigative files concerning an employer will be made available to the DOJ for case development or litigation purposes. Moreover, the MOU establishes a training program for the DOL and the DOJ, with the purpose of ensuring referrals are made when potential violations are found, and to ultimately increase the frequency and effectiveness of criminal prosecutions in worker-safety violations.

To be prepared for the new joint prosecution efforts made by the DOL and the DOJ and protect against potential exposure under the increased penalties, employers should consult a catastrophic response team that can help put procedures in place to reduce the risk of enforcement under the new initiative and minimize criminal liability.