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OSHA and DOJ Double-Team Employers

On Dec. 17, 2015, OSHA and the Department of Justice (DOJ) agreed to “double team” employers to investigate and prosecute worker endangerment violations.

While the agencies have worked together in the past, this is now a formal arrangement that employers should be very concerned about. While facing OSHA is bad enough, it’s a walk in the park compared to tangling with the DOJ.

“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,” says 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.”

In a memo sent to all 93 U.S. attorneys, Deputy Attorney General Yates urged federal prosecutors to work with the DOJ in pursuing worker endangerment violations. The worker safety statutes provide for only misdemeanor penalties. However, prosecutors are now encouraged to consider utilizing Title 18 and environmental offenses—which often occur in conjunction with worker safety crimes—to enhance penalties and increase deterrence. Title 18 is the criminal and penal code that deals with federal crimes and criminal procedure.

This cooperation could lead to hefty fines and prison terms for employers and individuals convicted of violating a number of related laws. For example, James McCullagh, the owner of James J. McCullagh Roofing Inc., recently pleaded guilty in federal court to six charges in connection with the death of a worker, Mark Smith, who fell 45 feet from a roof bracket scaffold while repairing the roof of a church in Philadelphia. Besides prison time, McCullagh could face a fine and supervised release. He pleaded guilty to one count of willfully violating an OSHA regulation causing death to an employee (failing to provide fall protection equipment) and four counts of making false statements. He admitted lying to investigators that he had provided safety gear and harnesses to his employees when he hadn’t.

McCullagh admitted to telling an OSHA inspector he’d seen his employees in harnesses and tied off earlier on the day that Smith fell to his death. He also pleaded guilty to one count of obstruction of justice for telling workers to say to OSHA investigators that they had safety equipment when they didn’t. The company still faces civil penalties from OSHA.

“No penalty can bring back the life of this employee,” says David Michaels, assistant secretary for Occupational Safety and Health. “But the outcome, in this case, will send a clear message that when employers blatantly and willfully ignore worker safety and health responsibilities, resulting in death or serious injury to workers, or lie to or obstruct OSHA investigators, we will pursue enforcement to the fullest extent of the law, including criminal prosecution.”

While criminal prosecution in worker fatalities is still a rarity, the likelihood of charges being brought increases when there is a suspicion of lying to OSHA or other federal officials. This partnership has been brewing for a while as the Justice Department has tried to use the nation’s tougher environmental statutes to bring stronger prosecutions of workplace safety violations by focusing on companies that put workers in danger.

OSHA has placed more emphasis on criminal enforcement of workplace safety violations recently by referring more cases to the DOJ and U.S. attorneys offices for criminal prosecution. They referred or assisted with the criminal prosecution of 27 cases in fiscal year 2014—the highest ever in the agency’s history.

What Can an Employer Do to Avoid the Double Team?

Employers need a strong offense by first knowing what they are responsible under the Occupational Safety and Health Act in terms of providing a safe and healthful workplace. Second, they must know that OSHA’s mission is to ensure safe and healthful workplaces by setting and enforcing standards and by providing training, outreach, education and assistance. OSHA inspections can be conducted without advance notice, onsite or by phone by highly trained compliance officers. Their inspection priorities are imminent danger, catastrophes/fatalities, worker complaints, and targeted inspections due to high injury/illness rates and severe violators, as well as follow-up inspections.

One of the errors many employers make is they wait too long and risk a huge fine, being placed on the Severe Violators Enforcement list, or senior leaders being jailed. Before OSHA shows up, companies should establish quality safety and health programs with four essential elements.

  1. Management commitment and employee involvement.  The manager or management team must lead the way by setting policy, assigning and supporting responsibility, setting an example and involving employees.
  2. Worksite analysis. The worksite must be continually analyzed to identify all existing and potential hazards.
  3. Hazard prevention and control. Methods to prevent or control existing or potential hazards are put in place and maintained.
  4. Training for employees, supervisors and managers. These key groups must understand and deal with worksite hazards.

“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,” Michaels says. “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 Department of Justice to enforce these life-saving rules when employers violate workplace safety, workers’ health and environmental regulations.”

That’s why it’s important to have a living, breathing safety program versus one copied from another employer or one downloaded from a website. OSHA inspectors can quickly determine if a program is real or just a binder on a shelf.

Given the formal partnership between OSHA and the DOJand the renewed focus on prosecuting individuals for workplace safety violationscompany executives, managers and supervisors should note the enhanced risks and implement measures to prevent themselves from being double-teamed.

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