by Cole Wist
If an employer skimps on safety protections for its workers, will it also ignore environmental protections? The U.S. Department of Justice (DOJ) and the U.S. Department of Labor (DOL) think so. 
Tag-team approach
The DOL and the DOJ are teaming up under a new Worker Endangerment Initiative to investigate and prosecute worker endangerment violations. According to an announcement in December 2015, federal investigators and prosecutors for the two agencies will look for possible environmental crimes in conjunction with violations of the Occupational Safety and Health Act (OSH Act), the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), and the Mine Safety and Health Act (Mine Act).
By prosecuting corporate environmental crimes at the same time as workplace health and safety violations, the government will be able to seek additional penalties available under federal environmental laws. In addition, individual corporate executives could find themselves criminally and civilly liable for their roles in such crimes.
Enhanced penalties under environmental laws
When a workplace safety violation is found under the OSH Act, MSPA, or Mine Act, federal prosecutors generally are limited to seeking only misdemeanor penalties and relatively modest monetary penalties. But under federal environmental laws and Title 18 of the U.S. Code, prosecutors will be able to seek felony convictions and enhanced penalties.
In addition, the DOJ’s Environment and Natural Resources Division (ENRD) is looking to strengthen its pursuit of civil cases that involve worker safety violations, believing that violations of the Clean Air Act (CAA), the Resource Conservation and Recovery Act (RCRA), and the Toxic Substances Control Act (TSCA) can have a direct impact on workers who must handle dangerous chemicals and other materials as part of their work duties.
Linking safety violations with environmental crime
In announcing the initiative, the federal agencies noted that statistics on workplace deaths and injuries, including an average of 13 deaths in U.S. workplaces each day, show that such incidents are due, in part, to exposure to toxic and hazardous substances at work. John C. Cruden, assistant attorney general for the ENRD, stated, “Employers who are willing to cut corners on worker safety laws to maximize production and profit will also turn a blind eye to environmental laws.”
As a result, the government’s stated reason to link workplace safety and environmental investigations is to “remove the profit from these crimes by vigorously prosecuting employers who break safety and environmental laws at the expense of American workers.”
Corporate wrongdoers held individually liable
Although the new Worker Endangerment Initiative targets companies that have committed workplace safety and environmental violations, the DOJ is very intent on holding individuals accountable for their role in corporate wrongdoing. Consequently, company executives and decision makers could find themselves the target of increased scrutiny during a government investigation.
Pursuant to a guidance memorandum from Deputy Attorney General Sally Quillian Yates, DOJ attorneys should take certain steps when investigating corporate misconduct in order to hold more executives and managers accountable for corporate wrongdoing, including:
- Requiring corporations to provide all relevant facts relating to the individuals responsible for the misconduct in order to qualify for any cooperation credit;
- Focusing criminal and civil corporate investigations on individuals from the inception of the investigation;
- Involving both criminal and civil attorneys in corporate investigations through routine communications with one another;
- Not releasing culpable individuals from civil or criminal liability when resolving a matter with a corporation, absent extraordinary circumstances or approved departmental policy;
- Not resolving matters with a corporation without a clear plan to resolve related individual cases; and
- Consistently focusing on individuals as well as the company so that civil attorneys may evaluate whether to bring suit against an individual based on considerations beyond his ability to pay.
The DOJ believes holding individuals accountable for corporate wrongdoing will be effective in reducing corporate misconduct because it will deter future illegal activity, provide an incentive to change corporate behavior, hold the proper parties responsible for their actions, and promote the public’s confidence in our justice system.
What this means for employers
The new initiative opens the door for any workplace safety investigation to turn into an examination of the company’s environmental compliance. The plan allows the ENRD and the U.S. Attorneys’ Offices to work in conjunction with the DOL’s Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), and Wage and Hour Division (WHD) to increase the frequency and effectiveness of criminal prosecutions of worker safety violations.
Expect the various agencies to share information, jointly investigate cases, and make criminal case referrals. The result will likely be enforcement of additional violations, stiffer criminal and civil penalties, and an increased focus on individual corporate wrongdoers. Employers need to prepare for the strong possibility that the initiative will be utilized broadly.
Cole Wist is an attorney with Holland & Hart LLP in the firm’s Denver, Colorado, office. He may be contacted at cawist@hollandhart.com.
Need to learn more? If you want to keep the DOL and DOJ out of your workplace, you need to have a successful safety program. To achieve that, safety rules must be consistently enforced and performance and behavior monitored and corrected. To demonstrate to OSHA that your company has implemented a comprehensive and successful safety program, you must be able to show that you have a documentable disciplinary program in place. Otherwise, you run the risk of not being able to use the “unpreventable employee misconduct/isolated incident” defense, meaning that even though you maintained an effective safety program, the cause of an accident was the unsafe act of the employee. Listen to the BLR webinar Managing Safety Risk-Takers: Legal Discipline Strategies for Workers Who Disregard Safety Obligations on demand to learn how to write a comprehensive, clear, and fair safety rule enforcement policy that can stand up to union and OSHA scrutiny. The presenter, a seasoned safety lawyer who has helped many companies design and implement an effective safety enforcement program, will provide a roadmap for developing and implementing an effective enforcement strategy, including infraction discipline—often a missing ingredient in existing safety programs. For more information, click here.