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Regulatory Update: Justice Department Aids OSHA Enforcement

March 25, 2022
Effort is part of federal agencies working together to advance pro-union agenda.

The Department of Justice (DOJ) said it will be increasingly pursuing cases in regard to worker safety and safe working conditions through formal collaboration with the Department of Labor (DOL), which includes the Occupational Safety and Health Administration (OSHA) and Mine Safety and Health Administration (MSHA).

DOJ is “deepening our partnership with DOL to sharpen the tools at our disposal to protect American workers,” declared Attorney General Merrick Garland on March 7 at the White House Roundtable on the State of Labor Market Competition in the U.S. Economy. This was where Biden administration officials detailed ambitious plans to promote unionization developed by an interagency task force.

Benjamin H. Patton, an attorney with the law firm of Reed Smith, points out that in January, Todd Kim, a former Reed Smith partner and newly confirmed Assistant Attorney General for the Environment and Natural Resources Division (ENRD) of DOJ, signaled an increased focus on prosecuting companies and individuals for environmental crimes that impact worker safety.

Patton points out that this effectively resurrected the Worker Endangerment Initiative (WEI) implemented by the Obama administration in 2015.

The WEI began as a joint effort to increase the frequency and effectiveness of criminal prosecutions of worker endangerment violations, culminating in a decision to consolidate the authorities to pursue worker safety statutes within the ENRD’s Environmental Crimes Section, operating through direct collaboration with OSHA and MSHA, as well as the Labor Department’s Wage and Hour Division (WHD).

In January, Kim also stated that the ENRD intends to “promote a corporate culture that fosters strict attention to law,” in recognition that “decisions made in the day-to-day operation of corporations can control the environmental health of the American people.”

Rather than relying on the more limited criminal penalties available under worker safety statutes, the ENRD deputy attorney general in 2015 directed federal prosecutors to consider utilizing Title 18, the main criminal code enforced by the federal government. He said the division also is pursuing violations of environmental offenses, “which often occur in conjunction with worker safety crimes,” to enhance penalties and increase deterrence.

Garland reinforced this collaboration on March 8, stating that DOJ is working closely with the DOL to protect “fair wages, fair terms of employment and just working conditions. We are also deepening our partnership with DOL to sharpen the tools at our disposal to protect American workers.”

DOJ’s actions are part of the Biden administration’s government-wide campaign to promote unionization of the American workforce. This got a boost recently when a high-level task force created a broad list of initiatives for federal agencies to engage in that are designed to further union-organizing efforts. Among the actions taken were execution of agreements among agencies to work together more closely to promote union interests and agendas.

Among the actions taken already taken by DOJ in direct support of OSHA activities is the March 8 announcement of a guilty plea by an oilfield manager regarding a felony charge of obstructing an OSHA proceeding stemming from the 2014 death of an oilfield worker in Williston, N.D.

One of the employees supervised by the manager welded on an uncleaned tanker trailer that had previously carried “produced water,” a liquid waste that is generated by oil wells and which contains flammable chemicals. The tank exploded and the worker was fatally injured.

The supervisor later admitted that he made false statements during an interview with OSHA, including stating that he did not know about the hazards and composition of produced water. The company also was sentenced to pay $2.1 million in fines and restitution.

In another example of the DOJ-OSHA cooperative efforts, in January an Omaha, Neb., railcar cleaning company and its owners were sentenced for violations of environmental and federal safety laws that resulted in workers’ 2015 deaths in regard to charges brought by DOJ. This case was brought following another situation where improper cleaning of a tank car led to an explosion killing two employees and injuring a third.

The Justice Department enforcement action resulted in two men who were company owners and officers being fined and sentenced to prison for falsifying documents and lying to OSHA investigators and for violations of the Resource Conservation and Recovery Act (RCRA).

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