Companies with Occupational Safety and Health Administration (OSHA) citations may face criminal charges going beyond those allowed under the OSHA statute, under a new Worker Endangerment Initiative and Memorandum of Understanding (MOU) announced on December 17, 2015, by the Department of Justice (DOJ) and the Department of Labor (DOL). Under the Occupational Safety and Health Act of 1970, misdemeanor criminal charges are available only in fatality cases involving “willful” violations of a standard. Those limitations have resulted in relatively few OSHA criminal cases. That may be about to change.

DOJ’s Environmental Crimes Section Will Look “Inside” and Outside

Over the past decade, DOJ’s Environmental Crimes Section continued to show an interest in pursuing worker safety enforcement when those violations were found as part of the more traditional environmental criminal investigations. DOJ has doubled down on its intentions with its December 17, 2015 memo entitled “Prosecutions of Worker Safety Violations.” Based upon this new memo, and the accompanying MOU between DOJ and DOL, the Agencies are now partners, with a “renewed” commitment to “increase the frequency and effectiveness of criminal prosecutions of worker endangerment violations.”

Aside from declaring a new enforcement priority, the only formal change is that DOJ’s Environmental Crimes Section will replace the Criminal Division’s Fraud Section as the “point of contact” and coordinating office between DOJ and DOL. Notably, this Initiative comes with no increased funding allotment of prosecutors or any new statutory or regulatory tools. The Agencies believe they have all the legal tools that they need. Thus, the DOJ memo and MOU provide what was lacking – the heightened priority and mandate for improved coordination. Each of the 93 U.S. Attorney’s Offices across the country will soon designate their own contact person to help screen and coordinate strategic investigations. Provided below are some of the implications of this development and suggested actions companies can take in response.

A Blended Worker Safety & Environmental Crimes Prosecution will Increase Punishment as well as the Likelihood of Winning at Trial

Apart from the full range of criteria within the U.S. Attorneys’ Manual, prosecutors often take a practical approach when assessing the seriousness of the facts of a case. In determining whether to “turn on the machine” and bring federal criminal charges, prosecutors assess two practical questions: 1) what is the likelihood of winning at trial?; and 2) how much prison time will the judge impose at sentencing? For the reasons discussed below, this new Worker Endangerment Initiative is likely to increase the attractiveness of cases under both criteria.

Heightened Punishment

One apparent impetus for this Initiative was the need to overcome a prior reluctance to prosecute worker safety violations since they are misdemeanors, not felonies. The net effect of this Initiative is to encourage a broader and blended view of workplace investigations that will encompass worker safety violations, as well as environmental crimes and other traditional felonies that might apply – such as false statements, obstruction of justice, witness tampering, conspiracy, etc. Indictments that included a comprehensive mix of worker safety misdemeanors and the more serious felonies will have more “teeth,” will carry longer jail sentences, and will thus serve to deter companies from engaging in such violations.

More Likely Convictions

Apart from the heightened penalties that would accompany a blended worker safety/environmental prosecution, the worker safety violations are likely to add more jury appeal to the pure regulatory counts or charges. In short, these blended prosecutions will provide more emotional ammunition to help answer the question of: “what’s the big deal?”

This strategic approach is similar to why environmental prosecutors rarely bring purely regulatory or technical prosecutions. Rather, they are trained to always look for compelling facts in the investigation that show how the targeted defendant’s environmental or technical violations also involved clear examples of “lying, cheating, and stealing.” Now – if armed with emotional and compelling worker safety violations – that list will include “lying, cheating, stealing . . . and harming.” If properly screened and selected, many cases involving worker safety violations will include emotionally compelling and egregious facts regarding actual harm or significant risks. These facts tend to keep the jurors awake and, sometimes, enraged.

A Smart Prescription for Companies: Mirror the DOJ in the Scope and Coordination of Risk Assessments, Compliance Efforts, and Internal Inquiries

The biggest thrust of DOJ’s Worker Endangerment Initiative is that the holes in the investigative “trolling nets” just got much smaller. More worker safety violations will be “caught” and referred for further review and scrutiny. The best prescription for companies involves five concrete steps:

1. Review and revise internal risk assessment protocol to heighten worker safety issues on the compliance priority list;
2. Objectively assess the company’s worker safety track record and vulnerabilities through a comprehensive compliance assessment;
3. If necessary, develop ways to demonstrate a stronger commitment to worker safety, including revised training, auditing, post-incident improvements, etc;
4. Remove any internal “silos” or barriers that separate environmental issues from worker safety issues. Just as DOJ and DOL are joining forces, companies need to take a blended and proactive approach; and
5. Develop or improve an “enforcement-readiness” plan to use in the event of such high-stakes and coordinated investigations.