Criminalization of Industrial Accidents

Criminalization of Industrial Accidents

12.18.2015

The United States Departments of Justice and Labor last week announced the expansion of their Worker Endangerment Initiative to address the perceived linkage between environmental and worker safety violations. The announcement, copied below, evidences the long held belief by prosecutors within the DOJ that companies with insufficient environmental compliance programs likely have insufficient compliance with OSHA regulations.  The Department is also interested in using the more substantial criminal penalties found in environmental law as compared to the penalties applicable to OSHA violations.

Last year the Los Angeles District Attorney, Jackie Lacey, initiated an OSHA and Environmental Crimes Rollout Program that sends investigators and prosecutors to the scenes of all serious workplace accidents and environmental threats, similar to what is done in cases of officer-involved shootings.  The program resulted in the prosecution this year of Bumble Bee Tuna for an industrial accident that resulted in the death of one of its employees.  The company pleaded guilty and paid three million dollars in restitution and fines, and was required to invest another three million dollars to upgrade its outdated tuna ovens with new ovens that will not allow workers to set foot inside the super-heated, pressurized steam cookers that were at issue in the accident. The prosecution of members of management within Bumble Bee is ongoing.

The government’s continued interest in criminalizing accidents that result in injuries or environmental damage heightens the importance for companies to review their safety plans, emergency response protocols, and employee training.  Human error will always exist as an ever-present risk and even the most vigilant of programs cannot prevent the Homer Simpsons of the world from causing an accident.  However, a robust, audited, safety program can help reduce the risk of the type of significant harm that will draw the attention of criminal prosecutors.  We also recommend that audits be conducted under attorney-client privilege to allow open and discussion of how best to address the audit results.

Justice Department’s Environment and Natural Resources Division Will Work with the Department of Labor and U.S. Attorneys for Broader Look at Environmental and Workplace Safety Crimes

In an effort to prevent and deter crimes that put the lives and the health of workers at risk, the Departments of Justice and Labor announced today a plan to more effectively prosecute such crimes.  Under the new plan, the Justice Department’s Environment and Natural Resources Division and the U.S. Attorneys’ Offices will work with the Department of Labor’s Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA) and Wage and Hour Division (WHD) to investigate and prosecute worker endangerment violations.

“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,” said Deputy Attorney General Sally Quillian Yates.  “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.”

“Safety and security in the workplace are a shared commitment.  Workplace injuries and illnesses cause an enormous amount of physical, financial and emotional hardship for workers and their families and underscore the urgent need for employers to provide a safe workplace for their employees,” said Department of Labor Deputy Secretary Chris Lu.  “Today’s announcement demonstrates a renewed commitment by both the Department of Labor and the Department of Justice to utilize criminal prosecution as an enforcement tool to protect the health and safety of workers.”

Starting last year, the Departments of Justice and Labor began meetings to explore a joint effort to increase the frequency and effectiveness of criminal prosecutions of worker endangerment violations.  This culminated in a decision to consolidate the authorities to pursue worker safety statutes within the Department of Justice’s Environment and Natural Resource Division’s Environmental Crimes Section.  In a memo sent today to all 93 U.S. Attorneys across the country, Deputy Attorney General Yates urged federal prosecutors to work with the Environmental Crimes Section in pursuing worker endangerment violations.  The worker safety statutes generally provide for only misdemeanor penalties.  However, prosecutors have now been encouraged to consider utilizing Title 18 and environmental offenses, which often occur in conjunction with worker safety crimes, to enhance penalties and increase deterrence.  Statutes included in this plan are 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).

“We have seen that 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,” said Assistant Attorney General John C. Cruden for the Justice Department’s Environment and Natural Resources Division.  “Working with our partners in the Department of Labor and law enforcement, we will remove the profit from these crimes by vigorously prosecuting employers who break safety and environmental laws at the expense of American workers.”

“Every worker has the right to come home safely.  While most employers try to do the right thing, we know that strong sanctions are the best tool to ensure that low road employers comply with the law and protect workers lives,” said Assistant Secretary for Occupational Safety and Health Dr. David Michaels.  “More frequent and effective prosecution of these crimes will send a strong message to those employers who fail to provide a safe workplace for their employees.  We look forward to working with the Environment and Natural Resources Division to enforce these life-saving rules when employers violate workplace safety, workers’ health and environmental regulations.”

In addition to prosecuting environmental crimes, the Environment and Natural Resources Division has also been strengthening its efforts to pursue civil cases that involve worker safety violations under statutes such as the Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act and the Toxic Substances Control Act.  Violations of a number of provisions under these statutes can have a direct impact on workers tasked with handling dangerous chemicals and other materials, cleaning up spills and responding to hazardous releases.

__________________________

Marc R. Greenberg is a partner with Musick, Peeler & Garrett in its Los Angeles office.  His full bio and contact information can be found at: http://musickpeeler.com/professionals/bio.cfm?id=409.  Marc will be speaking at the ABA White Collar Crime Conference in March on the topic of criminalization of environmental and worker safety issues. 

 

View Attachment (PDF)