DOJ prioritizes workplace safety with “Worker Endangerment Initiative,” calls for more criminal referrals, broader investigations, stiffer penalties
On December 17, 2015, the Department of Justice (“DOJ”) issued a memorandum placing new emphasis on criminal prosecutions for workplace safety violations. The memorandum suggests that longstanding workplace safety statutes do not carry sufficient penalties, and accordingly recommends that prosecutors charge “other serious offenses” in conjunction with workplace safety violations, including environmental crimes, false statements, and obstruction of justice. Given this new guidance, businesses should treat workplace safety incidents—a previously cabined area—as carrying the potential to lead to much broader investigations and more serious prosecutions and penalties.
The memorandum, from Deputy Attorney General Sally Quillian Yates, notes that the existing Occupational Safety and Health Act (“OSHA”) provides criminal sanctions for only three types of conduct related to workplace safety: (1) willfully violating a specific standard, and thus causing the death of an employee, (2) giving advance notice of OSHA inspection activity; and (3) falsifying documents filed or required to be maintained under OSHA. All three are misdemeanors punishable by a fine of “no more than $10,000 and/or imprisonment for no more than six months.” The memorandum posits that “[p]erhaps because these penalties have never been increased, there are only a handful of reported criminal prosecutions under [OSHA] each year.” The memorandum encourages prosecutors to “make enforcement meaningful by charging other serious offenses that often occur in association with [OSHA] violations — including false statements, obstruction of justice, witness tampering, conspiracy, and environmental and endangerment crimes.” Such felony provisions “provide additional important tools to deter and punish workplace safety crimes.”
The memorandum also transfers responsibility for workplace safety prosecutions from the DOJ Criminal Division’s Fraud Section to its Environmental and Natural Resource Division’s Environmental Crimes Section, an active section that has extensive experience working with the Department of Labor (“DOL”) and U.S. Attorney’s Offices across the country to prosecute workplace safety cases. Statutes included in this plan are OSHA, the Migrant and Seasonal Agricultural Worker Protection Act, and the Federal Mine Safety and Health Act. DOJ and DOL also executed a memorandum of understanding that outlines their cooperation and coordination on workplace safety investigations, establishes a process for DOL to refer cases to DOJ for prosecution, establishes “robust information sharing” between the departments, and calls for cooperation in training each department’s personnel on the other’s laws and regulations.
This memorandum comes on the heels of another important DOJ memorandum from earlier this fall: the so-called Yates memorandum, in which the DOJ emphasized a renewed focus on holding individuals accountable for corporate wrongdoing. Read more about that memorandum here.
What does this mean for businesses?
• First, the memorandum strongly suggests that there will be more investigations of possible workplace safety violations.
• Second, investigations increasingly will be broader in scope than past OSHA inspections. DOL will involve its Occupational Safety and Health Administration, Mine Safety and Health Administration, and Wage and Hour Division in this new initiative. Inspectors will be trained on and looking for “other serious offenses” such as environmental crimes, false statements, and obstruction of justice. Businesses should expect particular emphasis on the first of these, given that DOJ’s Environmental Crimes Section will now lead all workplace safety prosecutions.
• Third, as a result, businesses should expect that there will be more prosecutions—both under OSHA and for the “other” offenses the memorandum highlights—and correspondingly increased penalties.
For these reasons, businesses should take potential OSHA violations seriously:
• Businesses should update their policies and procedures for addressing OSHA investigations.
• When a workplace safety incident occurs, businesses should address it promptly and proactively.
• Businesses should involve their legal departments or retain outside counsel from the outset.
• This last exhortation is even more important once a business learns that it will be the target of an investigation. All statements and communications of a client or its representatives will face increased scrutiny, given the memorandum’s attention to possible false statements and obstruction of justice.
SKV has extensive experience with and proactive strategies for navigating DOJ investigations. If you have questions about how either of these DOJ memoranda might affect your business, please contact Dane Ball, or David Isaak.