With the new year comes a renewed focus on criminal prosecutions for violations of worker safety laws. In mid-December, the Departments of Justice and Labor released a new memorandum of understanding that should lead to increased prosecutions in 2016.
The move came shortly after the criminal conviction of Massey Energy CEO Don Blankenship following the death of 29 miners and indicates that the federal government will double down on such prosecutions in the future. Here's what you need to know.
The change effects three major statutes: the Occupational Safety and Health Act, the Mine Safety and Health Act, and the Migrant and Seasonal Agricultural Worker Protection Act. Under the DOJ-DOL memorandum of understanding, responsibility for prosecuting worker endangerment violations under those acts will transfer from the DOJ's Criminal Division's Fraud Section to the DOJ's Environmental and Natural Resource Division's Environmental Crimes Section. ECS will work with OSHA, MSHA, and the DOL's Wage and Hour Division to increase prosecutions.
The Occupational Safety and Health Act, the most wide-reaching of the three acts effected, allows for criminal prosecution of three main types of conduct: willful violations of a specific safety standard; giving advance notice of inspections; and falsifying documents. However, criminal prosecutions can also involve general federal law violations such as making false statements, obstruction of justice, tampering with evidence and conspiracy, according to Ben Hugget of Littler.
Criminal prosecutions under those acts have, in the past, been fairly uncommon. But the trial and conviction of Blankenship signaled a shift in the DOJ's approach to worker safety violations -- despite the fact that Blankenship was found guilty of only a single misdemeanor charge of conspiracy.
Wait, the Environmental Crimes Section?
Yep, that wasn't a typo. Prosecution will now be handled by DOJ's Environmental Crimes attorneys. ECS is the section of the DOJ's environmental division tasked with prosecuting individuals and corporations for violating laws meant to protect the environment. ECS is not to be confused with EES, the Environmental Enforcement Section, ENRD's largest section which includes half of the Division's lawyers and is responsible for most of its prosecutions.
Why the environmental division and why ECS, instead of its larger sister section? First, worker safety violations are rarely prosecuted because most violations are misdemeanors. Putting ECS in the forefront of those prosecutions takes them off the hands of overburdened prosecutors. It can also allow for stronger prosecutions, as federal and environmental charges with more bite are added to worker safety prosecutions.
According to an announcement from the DOJ, with the switch "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."