DOJ / OSHA Collaborating on Regulatory Compliance Enforcement
While many folks were distracted with the holiday season, the Department of Justice released information regarding its collaboration with the Occupational Safety & Health Administration (OSHA) to focus more on criminal prosecution of workplace safety violations. The DOJ memo can be found at this link: http://www.justice.gov/enrd/file/800431/download.
This development is going to catch countless employers by surprise - and not in a good way for their own interest. To borrow a phrase, 'OSHA and DOJ just got real' when it comes to workplace safety (OSHA) compliance. Also, keep in mind that this comes on the heels of OSHA nearly doubling its penalty structure for violations.
For background, Section 17 of the Occupational Safety & Health Act (OSH Act) stipulates the civil and criminal penalties which may be imposed on an employer for violating workplace safety requirements. The civil penalty structure ranges from approximately $13,ooo per cited Serious violation up to $126,000 for each Willful or Repeat violation. The criminal penalty is a misdemeanor with max jail term of 6 months. However, that's where the "asterisk" now comes into play. The Agency refers cases in which it is deems sufficiently egregious to the Department of Justice for criminal prosecution. Once that referral occurs, all decision-making regarding whether or not to pursue prosecution, etc rest with the DOJ. From that point on, OSHA participates in a supporting-role so to speak.
This DOJ statement reflects a commitment to prosecute more cases and to do so with much more aggressive criminal penalty strategies. Initially, this will likely have the effect of increase the percentage of cases the at the DOJ will prosecute - and probably significantly so. Over time, I think this will eventually lead to OSHA referring more of its cases to DOJ as well. Either way, this will have the effect of motivating employers to take safety even more seriously than they already do. The vast majority of employers are committed to safety, however, "not knowing what they don't know" in terms of the safety risks in their operations could very well end up being the reason why some will find themselves in hot water with OSHA and DOJ.
When I left OSHA as the Chief of Staff about 6 years ago, the Agency had referred about 225 (ballpark estimate) cases to the DOJ for possible prosecution over the Agency's then 40 year history. Of those cases, a percentage would be pursued by DOJ. Some advocates, such as a number of labor groups and others, have long criticized the agencies for not referring or prosecuting more cases. With this policy memo from the DOJ, much of this is about to change in terms of prosecuting more OSHA inspection cases.
In an effort to increase the criminal penalties, DOJ has communicated to it attorneys so me additional strategies which could be used to increase the net criminal penalty. All of this is avoidable, of course, by conducting safety audits and providing OSHA training to employees.
The key part of the DOJ letter:
"Prosecutors can make enforcement meaningful by charging other serious offenses that often occur in association with OSH Act violations - including false statements, obstruction of justice, witness tampering, conspiracy, and environmental and endangerment crimes. With penalties ranging from 5 to 20 years' incarceration, plus significant tines, these felony provisions provide additional important tools to deter and punish workplace safety crimes." (Link to letter: https://lnkd.in/bpfQk4a)
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