In a new enforcement effort involving the Occupational Safety and Health Administration and the Mine Safety and Health Administration, the federal government is launching an initiative aimed at putting more bite into penalties for alleged worker safety violations.
In a December announcement, the U.S. Department of Justice said it had developed a plan with the Department of Labor to prosecute alleged worker endangerment violations more frequently and effectively by having DOJ’s Environment and Natural Resources Division (ENRD) and U.S. Attorneys’ Offices across the country work with OSHA, MSHA, and DOL’s Wage and Hour Division, transferring responsibility for criminal prosecutions for worker safety to ENRD from DOJ’s Criminal Division’s Fraud Section.
Since most worker safety violations are misdemeanors punishable by light fines and short prison terms (as opposed to environmental crimes where penalties are much stiffer), the idea is to consolidate authorities to pursue alleged worker safety violations under ENRD’s Environmental Crimes Section. In a memorandum to all 93 U.S. Attorneys nationwide, Deputy Attorney General Sally Quillian Yates urged federal prosecutors to work with the Environmental Crimes Section on worker safety violations. DOJ said environmental offenses often occur in conjunction with worker safety crimes.
Yates told prosecutors they can make “enforcement meaningful” by charging other serious offenses that often occur in association with OSHA violations, including making false statements, obstruction of justice, witness tampering, conspiracy, and environmental and endangerment crimes. “With penalties ranging from 5 to 20 years’ incarceration, plus significant fines, these felony provisions provide additional important tools to deter and punish workplace safety crimes,” she wrote.
On the other hand, OSHA criminal violations generally are misdemeanors, each of which is currently punishable by a fine of no more than $10,000, imprisonment for no more than six months, or both, for a first occurrence. These cases usually require fatalities that arise as a result of OSHA violations that are classified as “willful.” There were only three criminal prosecutions under the OSHA statute in 2013. State authorities sometimes prosecute employee safety-related matters under generally applicable state criminal laws.
OSHA Assistant Secretary Dr. David Michaels welcomed the plan. “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. We look forward to working with the Environment and Natural Resources Division to enforce these life-saving rules when employers violate workplace safety, workers’ health and environmental regulations.”
In addition to the Occupational Safety and Health Act and the Mine Act, other statutes included in the plan are the Migrant and Seasonal Agricultural Worker Protection Act and the Atomic Energy Act. The DOJ also stated in its announcement that ENRD has been increasing its efforts to pursue civil cases that involve worker safety violations under statutes such as the Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act, and the Toxic Substances Control Act.
Employers should work with counsel to develop strategies for avoiding situations that could lead to charges for alleged criminal prosecution over worker safety and environmental issues.