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OSHA & DOJ Step Up Criminal Enforcement

By Adele L. Abrams, Esq., CMSP

The federal government is taking aim at occupational safety and health violations from a different perspective: criminal prosecution. On December 17, 2015, a joint statement was issued by the U.S. Department of Labor (DOL) and the U.S. Department of Justice (DOJ) encouraging the agencies to work cooperatively to bring more safety scofflaws to justice, and to work on imposing criminal prison sentences well beyond those provided for under the Occupational Safety & Health Act of 1970 (OSH Act).

A Memorandum of Understanding between the two agencies has been executed and a memo was sent to 93 federal prosecuting attorneys informing them of the new protocols. It also sets up a new framework for notification, consultation and coordination between the two departments to aid both in implementing safety-related workplace statutes.

OSHA Assistant Secretary David Michaels said about the initiative: “Strong criminal sanctions are a powerful tool to ensure employers comply with the law and protect the lives, limbs and lungs of our nation’s workers.” The DOJ’s environmental crimes chief explained that prosecutions would be open to “the ones making the decisions that lead to the deaths of others” including people in the corporate office, managers and supervisors in the field.

Deputy Attorney General Sally Quillian Yates added: “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. Given the troubling statistics on workplace deaths and injuries, the Department of Justice is redoubling its efforts to hold accountable those who unlawfully jeopardize workers’ health and safety.”

Under the new plan, the attorneys in the DOJ’s Environment and Natural Resources Division will work with the DOL’s personnel at the Occupational Safety and Health Administration (OSHA), the Mine Safety and Health Administration (MSHA), and the Wage and Hour Division (which has jurisdiction over issues including situations where minors illegally work in hazardous industries while under age 18) to investigate and prosecute endangerment violations.

It is not news that you can end up doing prison time for violations of OSHA safety or health standards.

The OSH Act provides criminal sanctions for three types of conduct that impact worker safety: (1) willfully violating a specific standard, and thus causing the death of an employee (there can be no criminal prosecutions, however, for violations of the OSH Act “General Duty Clause” that result in death); (2) giving advance notice of OSHA inspection activity (e.g., by calling inside a facility to give notice while holding inspectors outside, so that safety infractions can be remediated before discovery); and (3) falsification of documents filed or required to be maintained under the OSH Act.

The problem, which is what led to the new enforcement initiative, is that DOJ typically refrained from prosecuting most federal OSHA cases eligible for criminal sanctions because, under current law, the maximum penalty has been criminal conviction of a misdemeanor, punishable by a fine of no more than $10,000 for a first offense and/or imprisonment of no more than six (6) months. By comparison, the 22 “state plan states” that manage their own OSHA programs, criminal prosecutions are brought more often because the state attorney generals can rely on state statutes – involuntary manslaughter, negligent homicide, reckless endangerment and even assault – to impose lengthier criminal sentences on employers whose workers die or are injured on the job than could normally be brought under the federal statute.

The “Protecting America’s Workers Act” (HR 2090 & S 1112), which was introduced in early 2015, would strengthen federal OSHA’s ability to criminally prosecute violations by increasing potential monetary criminal penalties, expanding the consequences of “knowing” violations (a lesser standard than “willful”) that result in death to a maximum sentence of 10 years in prison, and adding the ability to prosecute non-fatal injury cases by imposing up to 5 years in prison for knowing violations that result in serious physical harm. However, that legislation – which was also introduced in previous sessions of Congress under different bill numbers – lays dormant and has little chance of enactment while the Republicans continue to control the legislative agenda. Groups including the National Association of Manufacturers and the U.S. Chamber of Commerce have been vocal in their opposition to the “PAW Act” and the expansion of criminal sanctions.

Meanwhile, the United States attorneys who work in DOJ’s environmental unit historically have been reluctant to devote considerable resources to case investigation, preparation and prosecution when it can only result in a misdemeanor conviction, so they have instead focused on the weightier sentences that can be imposed for violations of requirements under federal environmental laws. As a result, there are only a handful of reported criminal prosecutions under the federal OSH Act; in fact, there were only three in all of 2013.

The new DOL/DOJ collaboration suggests that, until such time as the OSH Act itself is amended to include heightened criminal sanctions, workplace violations may be prosecuted creatively by using other statutes such as the Clean Air Act, the Resource Conservation & Recovery Act, and the Toxic Substances Control Act. Environmental statutes typically include felony prison terms and harsher monetary fines. In addition, prosecutors will be encouraged to look at use of Title 18 of the U.S. Code to enhance penalties and increase deterrence.

The Title 18 provisions that have sometimes been used in this manner before include charges of “obstruction of justice” and “conspiracy” (two or more individuals colluding to obstruct justice or otherwise violate the law). Because Title 18 crimes are subject to review under the federal sentencing guidelines, they can carry prison terms of up to 20 years. What OSHA might consider “obstruction” remains to be seen, but in the mining industry, after the Upper Big Branch disaster, the first criminal prosecution was against the company safety/security officer under Title 18 for destroying documents sought by the DOL. As a result of his conviction, he was sentenced to serve about six years in a federal prison.

The directive to the US attorneys tells them, when analyzing an OSHA case, to consider charging other serious offenses including false statements to inspectors and investigators, obstruction of justice, witness tampering (e.g., threatening employees who are whistleblowers or wish to speak to OSHA personnel privately, or who plan to testify against the company), environmental, and endangerment crimes (e.g., where an accident involves someone under age 18). These all carry felony provisions that, the DOJ argues, will better deter and punish workplace safety crimes.

A 2015 non-fatal OSHA case by the DOJ may be a harbinger of things to come. In that case, a roofing company supervisor was criminally prosecuted after falsely telling OSHA inspectors that fall protection had been purchased by the company prior to the accident that seriously injured three workers, when it was actually purchased three days after the incident. While the company was cited for six safety violations totaling $55,000 in civil penalties, because of the false information provided by the supervisor, the government was able to reach a plea agreement wherein the man will receive three years supervised probation and 30 hours of community service.

The bottom line is that employers will need to carefully consider their actions any time a workplace incident occurs that results in a death, involves a young worker, or involves releases of toxics into the air (e.g., asbestos or silica) or water (e.g., diesel fuel spillage) that could be viewed as a tandem environmental violation. Moreover, counsel should be consulted promptly before the initial OSHA investigation is in full swing, because it will be critical for management personnel to be aware of their right to remain silent, or to have counsel present when interviewed. In addition, supervisors need to be aware that it is the worker’s right to speak privately to OSHA, if they so choose, but OSHA cannot compel statements from anyone – salaried or hourly – except through the use of a subpoena pre-citation or through depositions once a case is in litigation. Finally, remember that documents or other critical evidence in a case cannot be destroyed or otherwise disposed of if there is a reason to believe that OSHA will want it.

(Article published in PalletCentral Magazine, January-February 2016)

Adele L. Abrams is an attorney and safety professional who represents companies in litigation with OSHA and provides safety training and consultation. The Law Ofice of Adele L. Abrams PC has three offices: Beltsville, MD; Denver, CO; and Charleston, WV.