“The Administration and many of its allies really do want to put employers in jail.” That’s according to a prominent attorney specializing in workplace safety compliance.
Howard Mavity, a Fisher & Phillips partner, says in a blog post that he and fellow F&P partner Edwin Foulke, head of OSHA from 2006 to 2008, were struck by statements from the administrator of OSHA Region 4 at the recent Georgia Safety, Health and Environmental Conference.
The administrator said he’s recently contacted all of the U.S. Attorneys in his Region to encourage increased criminal prosecution of workplace fatalities and OSHA violations, and he’d be doing the same soon with state attorney generals.
It’s the latter part of that statement that caught Mavity’s and Foulke’s attention.
Criminal prosecution provisions under the OSH Act are weak compared to other federal statutes. To be federally prosecuted for a workplace fatality, it’s usually because the individual either lied to OSHA or fabricated evidence. Violating environmental law in the same case can be another factor leading to criminal charges.
But, according to Mavity, “state and local prosecutors have a much wider array of tools to use to pursue criminal actions against employers.”
Any state or local prosecutor wanting a template on how to do just that need only look into the recent criminal prosecution of Bumble Bee Tuna, according to Mavity.
Is this just a push from one regional OSHA administrator? Nope.
This month, Deputy U.S. Attorney General Sally Quillian Yates laid out a new policy on individual liability in matters of corporate wrongdoing in remarks at the New York University School of Law.
“We cannot allow the flesh-and-blood people responsible for misconduct to walk away,” Yates said.
The Department of Justice is taking six steps to hold individual corporate wrongdoers accountable. They include:
- During an investigation, if a company wants any credit for cooperation, it must identify all individuals involved in the wrongdoing. Until now, companies could cooperate with the government by voluntarily disclosing improper corporate practices, but then stop short of identifying who engaged in the wrongdoing and what exactly they did.
- Individuals will now be a focus of DOJ investigations from the very beginning.
- The DOJ’s civil and criminal attorneys will collaborate “to the full extent permitted by law” during all stages of an investigation, and
- Civil cases will be pursued against alleged corporate wrongdoers even if the accused doesn’t have the financial resources to satisfy a significant monetary judgment.
“While these policy shifts are effective immediately,” Yates said, “the public won’t see the impact of these steps over night. Some of these policies will affect cases that are only beginning now and may take years to become public.
“Nothing discourages corporate criminal activity like the prospect of people going to prison,” Yates said.
Do you agree that more prosecution of managers and executives in connection with workplace fatalities and OSHA violations will encourage companies to step up their safety programs to prevent employees injuries and deaths? Let us know in the comments.
