As the year draws to a close and the New Year approaches, people all around the world will be contemplating what they can resolve to do better in 2016. This year, the U.S. Department of Labor (DOL) and U.S. Department of Justice (DOJ) seem to be celebrating the tradition as well. In a move akin to a “New Year’s Resolution” to do better by workers, the two agencies have just announced that they will be expanding their “worker endangerment initiative” to bolster criminal prosecutions against employers responsible for endangering workers’ health and safety.
The new initiative is an encouraging step toward punishing employers who make decisions that put profits over people and toward deterring others from violating federal labor laws. But the initiative—while it’s a beneficial supplement to the weak criminal penalties applicable to many labor violations—is also limited in scope and shouldn’t be regarded as a comprehensive solution.
The purpose of the DOL/DOJ worker endangerment initiative is to supplement the weak criminal penalty provisions found in three of our nation’s labor laws—the Occupational Safety and Health Act (OSH Act), the Mine Safety and Health Act (Mine Act), and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). In essence, the initiative encourages federal prosecutors investigating potential criminal charges for labor law violations to look for possible violations of other federal criminal laws with stronger penalties that they can pursue.
For example, under the OSH Act, criminal penalties may only be imposed in three instances:
- An employer who “willfully” violates an OHS standard and thereby causes an employee’s death is subject to a maximum fine of $250,000 and/or six months in jail for an individual, or a maximum fine of $500,000 for an organization.
- Anyone who “knowingly” falsifies documents filed or required to be maintained under the OSH Act is subject to a maximum fine of $10,000 and/or six months in jail.
- Any person who gives advance notice of an OSHA inspection activity is subject to a maximum $1,000 fine and/or six months in jail.
In comparison to these weak criminal penalties, other federal laws provide far more stringent penalties. As an example, Title 18 of the United States Code makes it a crime to provide false information or make false statements to federal officials, which is punishable by up to five years in prison. The federal environmental laws also offer new avenues for criminal penalties. Under §1319(c)(3) of the Clean Water Act, an organization can be fined $1 million, and an individual can be fined $250,000 and imprisoned for 15 years for knowingly putting another person in imminent danger of death or serious bodily injury. According to AFL-CIO’s 2015 Death on the Job Report, “EPA reported in FY 2014 there were 271 criminal enforcement cases initiated under federal environmental laws and 187 defendants charged, resulting in 155 years of jail time and $63 million in fines and restitution—more cases, fines and jail time in one year than during OSHA’s entire history.”
Given the potential for enhanced penalties and deterrence under the new initiative, it is certainly a welcome supplement to the OSH Act’s weak criminal penalties. But the initiative’s significant limitations must not be overlooked. First, the initiative only applies to federal labor law violations. Under the OSH Act, states can opt to establish their own OHS agencies that take the place of Fed-OSHA (called “state-plan states”), but OHS violations in these states would not fall within the scope of the initiative. To address this limitation, when a worker injury or fatality occurs in a state-plan state, Fed-OSHA and the DOJ can help amplify criminal enforcement efforts of state and local regulators, law enforcement, and prosecutors by openly communicating and sharing information that may be useful for the state investigation.
The initiative is also limited insofar as it applies only in cases that Fed-OSHA refers to DOJ for prosecution. According to OSHA’s own enforcement data, the agency referred a combined 88 cases to DOJ for prosecution between 2006 and 2013. In our own review of Fed-OSHA inspection data for cases in which willful violations led to worker deaths, we found that most cases involved falls, trench collapses, electrocutions, workers getting crushed, and other scenarios in which environmental crime add-ons seem unlikely. To address these obstacles, OSHA must redouble its effort to refer cases involving violations of the OSH Act’s criminal provisions to federal prosecutors. When a case does not violate the OSH Act’s criminal penalties but involves a potential violation of another federal law, OSHA should refer the case to the agency with jurisdiction over the matter. OSHA should also coordinate with state and local prosecutors about pursuing cases involving worker fatalities or serious bodily injuries under a state’s general criminal code.
The point in emphasizing these limitations is not to criticize the initiative, but rather, it is to serve as a reminder that this initiative should not be regarded as a comprehensive solution to the many deficiencies of our nation’s labor laws. Despite the limitations, the initiative is a step toward better ensuring workers a safe and healthy workplace. The initiative sends a strong message to employers that labor laws will be enforced and egregious violations will be pursued aggressively. Only time will tell whether the Labor Department and Department of Justice will stay committed to the initiative and seek justice against employers who make business decisions that unnecessarily put workers’ lives on the line.