On September 15, 2015, we wrote an OSHA Bulletin that summarized a memorandum issued by Deputy Attorney General Yates. You can read the Bulletin here. On December 17, 2015, Yates issued another memorandum that will impact all employers and that relates to “Prosecution of Worker Safety Violations.”
In short, the most recent memorandum reminds us that there are three bases for criminal prosecution under the Occupational Safety and Health Act (“the Act”):
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a willful violation of a standard promulgated under the Act that results in the death of an employee;
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providing advanced notice of an inspection; and
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falsification of documents that are filed or that are required to be maintained under the Act.
The memorandum also points out that prosecutions can be predicated on violation of criminal statutes that “often occur in association with OSH Act violations – including false statements, obstruction of justice, witness tampering, conspiracy, and environmental and endangerment crimes.”
The memorandum continues and reveals that the Attorney General’s Advisory Committee voted and elected to transfer responsibility for prosecuting worker safety violations from the U.S. Attorney General’s Criminal Division’s Fraud Section to the Environmental Crimes Section (ECS) of the Environmental and Natural Resources Division. The ECS attorneys have trained hundreds of OSHA inspectors on how to recognize and document violations of U.S. Code: Title 18 – Crimes and Criminal Procedure.
As indicated in our earlier alert, criminal prosecutions associated with worker safety violations have increased substantially over the past several years. This memorandum suggests that this trend will not only continue, but that we could see more prosecutions in the future, including prosecutions alleging violations with more significant penalties.
We will continue to monitor this issue and advise you of additional developments.
