The U.S. Department of Justice issued a Memorandum to all U.S. Attorneys and entered into a Memorandum of Understanding (MOU) with the U.S. Department of Labor on December 17, 2015 to bolster the federal government’s arsenal to hold employers criminally liable for worker safety and health violations. 

The Memorandum and MOU were issued as a component of the federal government’s “Worker Endangerment Initiative,” which has the stated goal of deterring catastrophic workplace injuries and fatalities through expansion of the government’s tools to pursue criminal prosecution of employers for worker safety and health violations under the Occupational Safety and Health Act of 1970 (OSHA) and Mine Safety and Health Act (MSHA).  Historically, criminal enforcement under OSHA and MSHA was relatively rare and limited in scope.  Such charges were considered misdemeanors, and therefore any fines and imprisonment for successful prosecutions were correspondingly limited. 

In the MOU as part of the Worker Endangerment Initiative, Deputy Attorney General Yates directed prosecutors to expand the enforcement of willful violations of OSHA or MSHA in cases involving catastrophic workplace injuries and fatalities to include the assertion of felony charges for violations of Title 18 of the U.S. Code for false statements, obstruction of justice (such as through the destruction of records), witness tampering, conspiracy, and environmental and endangerment crimes.  These additional felony counts come with significant fines and double-digit prison sentences.

To staff the anticipated increase in criminal prosecution of employers, the MOU directs the OSHA and MSHA agencies to refer such matters for criminal enforcement to the Environmental Crimes Section of the Environment and Natural Resources Division at the U.S. Department of Justice or to the appropriate U.S. Attorney’s Office.  This section has significant resources available to devote to criminal prosecution of worker safety and health violations, which likely will result in an increase in both the number of prosecutions as well as the depth of treatment provided.

As a result of the Memorandum and MOU, employers should expect more frequent criminal scrutiny under OSHA and MSHA, with potential felony charges being brought.  With increased scrutiny of workplace accidents likely, employers should ensure that they have up-to-date policies and procedures for preventing worker safety and health violations, for appropriately preparing for inspections and for responding to agency inquiries.  Given the potential felony ramifications to employers, it is important to seek advice as soon as possible in circumstances involving worker fatalities and catastrophic injuries, particularly before making statements or producing documents.

© 2016 Perkins Coie LLP