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New Initiative Could Lead to Stiffer Penalties and Felony Convictions for Workplace Safety Violations

Written by Ankin Law Office

In an effort to encourage employers to provide a safe workplace for employees, the Departments of Labor and Justice are joining forces to investigate and prosecute employers for endangerment violations. A new worker endangerment initiative, which was announced December 17, 2015, will enable investigators to look for violations of the Occupational Safety and Health Act, the Mine Safety and Health Act and the Migrant and Seasonal Agricultural Worker Protection Act. They will especially be concentrating on environmental violations committed by employers in conjunction with other safety violations in order to seek enhanced penalties under the federal environmental laws.

The Department of Justice will also focus on holding individuals like corporate executives liable for workplace safety violations, which could mean that these individuals could find themselves facing criminal and civil charges. According to the Department of Justice, holding decision making individuals accountable for corporate violations will be effective because:

  • It will discourage illegal activity in the future.
  • It will encourage changes in behavior.
  • The proper parties will be held accountable for their actions.
  • The public’s confidence in our justice system will improve.

Deputy Attorney General Sally Quillian Yates issued a memorandum in September of 2015 that is designed to outline the steps that the Department of Justice should take when investigating workplace safety violations in order to hold managers and executives liable.

  • In order to qualify for cooperation credit, the names of those responsible for the corporate misconduct and all information relating to the misconduct must be provided to the Department of Justice investigators.
  • Focus should be on individuals involved from the beginning of the investigation.
  • Criminal and civil investigators should practice continuous communication with one another.
  • When resolving a violation with a corporation, no individuals will be released from liability except under extraordinary circumstances or approved departmental policy.
  • The Department of Justice should create a plan to resolve individual any related individual cases prior to resolving any matters with a violating corporation.
  • While focus by civil attorneys should be on both individuals and companies, it should be evaluated whether a suit should be brought against individuals with consideration to their ability/ inability to pay.

Environmental Compliance

When companies are under investigation for workplace safety violations, they can expect that they will also be under scrutiny for environmental violations. When a company is found to be in violation of environmental laws that endanger American workers, they can expect to face the stiffer penalties (both civil and criminal) that are provided by the environmental statutes. According to John C. Cruden, the Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division, when companies cut corners with workplace safety in order to maximize production and profit, they are more likely to ignore environmental safety standards as well.

With an estimated 13 workplace fatalities and numerous workplace injuries occurring in the United States each day, many of which are in part due to exposure to toxic chemicals and other hazardous substances, statistics reveal that Cruden is likely correct. Fortunately, while the three worker safety statutes that are focused on under the new initiative only allow for misdemeanor penalties and monetary fines that are significantly less harsh, the environmental statutes allow for enhanced penalties and even felony convictions under Title 18 of the U.S. code and environmental laws. The intent of the new initiative is to increase the safety of American workers by removing companies’ incentive for profiting at the expense of their employees’ and providing stiffer penalties when they violate safety and environmental laws.

According to the Environment and Natural Resources Division, violations of the Resource Conservation and Recovery Act, the Clean Air Act and the Toxic Substances Control Act can directly impact workers who are required to handle hazardous chemicals and other dangerous substances as part of their regular work duties. Alarmingly, the Occupational Safety and Health Administration reports that an estimated 60,000 deaths and 800,000 injuries/ illnesses are attributable to exposure to toxic or hazardous substances in the workplace. Additionally, skin damages and diseases that are a result of dermal exposure to hazardous substances in the workplace account for approximately 34,000 injury cases each year- a rate of 3.4 injuries per 10,000 employees. Respiratory illnesses account for approximately 19,300 cases.

Unfortunately, many workers are continually exposed to hazardous chemicals in limits that are legal, but not safe. Additionally, the chemicals used in the workplace are continually changing, and OSHA is finding it difficult to keep up. With only approximately 500 chemicals currently being regulated, 95 percent of a list that has not been updated since 1971, and tens of thousands of chemicals being used, most of OHSA’s exposure standards are dangerously out of date. As a result, workers are often not adequately protected. It is hoped that the new initiative, in conjunction with updated exposure limits, will result in a safer environment for America’s workforce.