Sellers and Howard Radzely, the solicitor of labor at the Department of Labor, outlined a number of new initiatives to enhance criminal enforcement of OSHA rules at the American Bar Association's Occupational Safety and Health Law Committee midwinter meeting, held in Key West Fla., on March 1-4.
"Bad actors will pay, and pay dearly," promised Radzely, who has overall responsibility for Department of Labor civil enforcement actions; OSHA cases must be referred to the Justice Department for criminal prosecution.
In his presentation, Sellers outlined the new tools and procedures that strengthen the hand of federal prosecutors:
- OSHA is expanding cooperation with EPA criminal enforcement as OSHA inspectors are being trained to recognize violations of EPA rules for referral to that agency.
- Thanks to a recent memorandum from Radzely, OSHA is now discussing with the Department of Justice all cases involving willful violations of OSHA rules that lead to a fatality, to determine how and whether to pursue criminal prosecution.
- In order to facilitate criminal prosecution by the Justice Department, OSHA inspectors have received new training on how to conduct inspections that could lead to a criminal case.
- Sarbanes-Oxley has strengthened federal penalties for lying or misleading government officials with respect to safety investigations.
Gilbert Jackson, general counsel to North Carolina's Safety and Health Review Board, said he was surprised to discover that Sarbanes-Oxley, intended primarily for financial fraud cases, could be applied to OSHA inspections.
The penalties for violating Sarbanes-Oxley, up to 20 years in prison, are far more severe than permitted under the OSH Act, which treats a violation as a misdemeanor.
"I can't emphasize enough," said Sellers, "don't lie and don't change the scene of a safety investigation."