Stepped-Up DOJ Enforcement Signals Intent to Increase Criminal Prosecution of Workplace Safety Violations
Companies who have in the past considered OSHA penalties as a mere cost of doing business and not a significant deterrent should rethink their position and revamp their compliance programs based on recent steps taken by the Department of Justice (DOJ) which heighten the risk of non-compliance.
The potential for criminal enforcement of workplace safety violations under the Occupational Safety and Health Act has, in the past, not carried much of a deterrent effect because OSHA violations are classified as misdemeanors and were not frequently prosecuted. Violations of federal environmental statutes, however, including the Clean Air Act, the Clean Water Act, and the Resource Conservation and Recovery Act, can include felonies, prison sentences, and multimillion dollar penalties. The DOJ has signaled its intent to more aggressively pursue criminal enforcement of workplace safety violations under the endangerment provisions of those environmental statutes in signing a memorandum of understanding with the Department of Labor that sets forth a plan for training prosecutors and investigators, coordinating and tracking criminal referrals, and sharing information and data between the two departments. The idea is that workplace safety violations uncovered during environmental investigations will be more easily and more frequently prosecuted criminally as felony environmental violations.
In addition, John Cruden, the assistant attorney general for the Justice Department’s Environment and Natural Resources Division is quoted in a recent article as stating that “[w]e are strengthening our effort to pursue civil cases that involve worker safety violations under the Clean Air, Clean Water, Resource Conservation and Recovery and Toxic Substances Control Acts” and explaining that those statutes contain “a number of provisions that establish safety measures for chemical handling, toxic releases or catastrophe prevention; violation of these statutes often have a direct impact on workers tasked with handling dangerous chemicals or cleaning up spills” (see “DOJ Takes Steps to Bolster Civil Enforcement for Workplace Violations,” InsideOSHAOnline, March 22, 2016).
The stepped-up enforcement of workplace safety violations by the Department of Justice raises the stakes and should serve as a warning to employers to consult with counsel to bolster their compliance efforts before a problem arises.