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Opinions diverge on tougher employer prosecutions for endangering workers

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A new initiative by U.S. federal agencies to prosecute companies and individuals who endanger the lives of their employees is drawing divergent opinions on its potential impact.

The Department of Labor-Department of Justice initiative announced last month is aimed at addressing limits of workplace safety statutes including the Occupational Safety and Health Act, which allows criminal prosecutions only for willful violations resulting in an employee's death, giving advance notice of an OSHA inspection or falsifying documents. But such charges have been limited to misdemeanors with a maximum six-month jail term and $10,000 fine, which legal experts say has discouraged prosecutions.

U.S. attorneys now are encouraged to utilize Title 18 of U.S. Code and environmental offenses, which often occur in conjunction with worker safety crimes, to bring felony charges with potentially longer prison sentences and higher penalties.

“Because those carry with them more significant penalties, the idea behind that is it could have a much greater deterrent effect,” said Amy Puckett, a Charlotte, North Carolina-based associate at Bradley Arant Boult Cummings L.L.P.

A chemical exposure or release that injures employees could be subject to a felony prosecution, said Mark Kittaka, a partner at Barnes & Thornburg L.L.P. in Fort Wayne, Indiana. However, prosecutions could extend beyond environmental crimes, as federal law also covers witness tampering, obstruction of justice and other crimes, he said.

An open question is whether the Justice Department would launch a criminal prosecution for a willful violation that does not fatally injure an employee – a potential game changer that concerns some legal experts.

“To bootstrap something that otherwise would not be a criminal offense under the Occupational Safety and Health Act into a felony I think borders on legislative activity or rulemaking that hasn't gone through the appropriate rulemaking process,” said Cole Wist, a Denver-based partner at Holland & Hart L.L.P. “A lot of discretion is given to administrative agencies to enforce the statutory scheme that they're charged with enforcing and it's pretty rare that a court will set that aside.”

This initiative, combined with a nearly 80% increase in OSHA fines that is to go into effect in August, could change the perspective of employers about paying a fine rather than disputing citations because the fine is less than the legal costs or seeing workplace safety violations as a cost of doing business, but such bad actors are a minority, experts said.

“It's something that employers should take note of and be aware that there's an increased focus on this, but I don't expect that the numbers will rise all that significantly in terms of actual criminal prosecutions,” said Ben Huggett, a Philadelphia-based shareholder at Littler Mendelson P.C. “If you're honest during an OSHA inspection and you're not interfering with witnesses, most of the time you have nothing to fear in terms of a criminal prosecution.”

Employers “should be prepared that any serious accident which results in a serious injury or the death of an employee could trigger a very serious criminal prosecution and they have to prepare the defense of the company with that assumption in mind,” Mr. Wist said.