Could criminal prosecutions become a more common for OSHA?

May 3rd, 2016 by Dakota Software Staff Industry News

The Occupational Safety and Health Administration has a relatively wide latitude when it comes to issuing fines and penalties to businesses found to be out of compliance with the regulator's many health and safety rules. As discussed previously on our blog, The Department of Labor and Department of Justice worked together toward the beginning of 2016 to increase criminal penalties for employers that break health and safety rules. Increased cooperation and more serious penalties are the two major elements of the new effort, which could significantly increase the overall consequences of noncompliance with occupational safety rules as well as wage and hour considerations and other operational regulations.

More serious consequences, more cases attractive to prosecutors
The decision to enhance the ability of OSHA and similar agencies to encourage prosecutors to take on criminal cases will have some significant effects for businesses going forward. Safety + Health magazine highlighted the differences between the limits of previous health and safety rules and the current, more extensive reach of those regulations. Because the criminal penalties carried by especially serious violations of OSHA rules only amounted to misdemeanor charges in the past, it was difficult to find prosecutors who could take on such cases.

Misdemeanor charges can only provide only lead to six months of jail time at the maximum, which is almost always too small of a penalty to attract the attention of federal prosecutors. While numerous and well funded, there are still only so many of these lawyers working for the federal government. Effective resource allocation for the government as a whole meant focusing on cases where felonies were in play and a successful prosecution could lead to many years spent in prison.

Safety + Health highlighted specific facts on OSHA court cases from the annual AFL-CIO "Death on the Job" report, which found just 88 instances of prosecution following the OSH Act's passage in 1970 - slightly fewer than two per year, on average. The convictions from those cases totaled only 100 months of jail time. With such limited results even when successful, it's easy to see why prosecution of serious and standout violators was a very low priority for OSHA in past years.

The new approach to potential prosecution centers on the change in how the Department of Justice looks at violators. An OSHA violation or violations worthy of prosecution no longer stands alone, away from other potential legal and regulatory issues. Prosecution has moved under the jurisdiction of the Environment and Natural Resources Division's Environmental Crimes Section. The DOJ will now inspect businesses found in violation of OSHA rules for potential environmental issues as well. The move comes with an assumption that businesses violating health and safety laws are also likely breaking others related to environmental concerns.

"We are aligning environment, health and safety so we can look across the entire horizon for the reasons for injuries, and use our resources to combat that and make that a high priority," said John Cruden, assistant attorney general at the DOJ in the Environment and Natural Resources Division, during a Dec. 17, 2015 press conference, according to Safety + Health. "This matters, and individuals who violate the law will suffer the consequences."

The shift in the way companies are penalized and the decision to investigate violators for additional rule-breaking is a major consideration for companies of all types. With the right EHS specialists, safeguards and EHS compliance software in place, businesses can have more confidence in their operations. Without those staff members and solution in place, however, they face increased penalties - including longer sentences.