On December 17, 2015, the U.S. Department of Justice (DOJ) announced that its Environmental and Natural Resources Division (ENRD) will increase efforts to work with the U.S. Department of Labor (DOL) to investigate and prosecute crimes related to workplace violations. According to the DOJ’s Deputy Attorney General Sally Quillian Yates, “On an average day in America, 13 workers die on the job, thousands are injured and 150 succumb to diseases they obtained from exposure to carcinogens and other toxic and hazardous substances while they worked.” As such, Ms. Yates said the DOJ is “redoubling its efforts to hold accountable those who unlawfully jeopardize workers’ health and safety.”
Under the new cooperation agreement, memorialized in a Memorandum of Understanding signed by top officials at the DOJ and DOL, the ENRD, along with U.S. Attorney’s Offices across the country, will work with the DOL’s Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA) and Wage and Hour Division (WHD) “to investigate and prosecute worker endangerment violations.” The clear intended goal of the new policy is to enhance penalties for conduct that jeopardizes the health and safety of workers.
Existing worker safety statutes enforced by OSHA, MSHA, and WHD generally provide for only misdemeanor offenses. The new cooperation agreement urges federal prosecutors to consider criminal prosecutions utilizing Title 18 and environmental statutes to bring about stiffer criminal sanctions for conduct occurring in conjunction with OSHA violations. Such other offenses, specifically referenced in a memo sent to all U.S. Attorney’s Office, include false statements, obstruction of justice, witness tampering, conspiracy, and environmental and endangerment crimes. Prosecutions of this nature would involve serious felony charges carrying criminal penalties ranging from five to 20 years in prison, along with huge criminal fines. For companies convicted of felonies, or misdemeanor offenses resulting in death, the fine for each offense could be as much as $500,000. See Title 18, § 3571(c)(3)-(4).
While in the past, criminal charges stemming from OSHA violations were relatively rare, limited only to willful violations of an OSHA standard, companies must now be prepared to defend against charges brought by the ENRD and other federal prosecutors for non-OSHA violations that jeopardize workplace safety. The DOJ’s specific reference to Title 18 offenses, such as “false statements, obstruction of justice, witness tampering, and conspiracy,” also demonstrates that companies must be increasingly mindful when conducting internal investigations into potential OSHA violations to avoid turning a relatively minor OSHA violation into a felony case of making false statements to investigators, or obstruction of justice, witness tampering, and/or conspiracy for attempting to cover up the violations. In addition, workplace safety incidents stemming from potential environmental violations may draw more attention from federal prosecutors, who under the new policy are encouraged to bootstrap potential environmental violations to pursue more serious criminal charges against companies and their employees.