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July 02, 2020

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DOJ and DOL Expand and Promote Worker Endangerment Initiative

The US Department of Justice (DOJ) has announced an expanded national initiative to pursue criminal charges in cases involving worker endangerment. Deputy Attorney General Sally Quillian Yates directed all 93 United States Attorneys' Offices to participate in this effort. Previously DOJ gave new authority to the DOJ Environmental Crimes Section (ECS) to prosecute worker safety cases, and ECS and the US Department of Labor (DOL) have entered into a Memorandum of Understanding (MOU) to share information, make criminal case referrals and jointly investigate such cases. As a result, employers should assume that information regarding workplace safety investigations by OSHA will be looked at by federal prosecutors. The initiative is based on the belief that companies that have worker safety violations may also have violated environmental statutes, and thus could face the far more stringent criminal sanctions under the environmental laws.

The December 17 announcement follows DOJ's decision in August 2015 to grant criminal enforcement authority for worker safety statutes to ECS. ECS typically prosecutes using the felony provisions in environmental criminal statutes, which only require proof of "knowing" conduct. These sanctions are far easier to obtain than the limited criminal penalty in the OSH Act. The worker safety statutes covered include the Occupational Safety and Health Act (OSH Act), the Migrant and Seasonal Agricultural Worker Protection Act, the Atomic Energy Act, and the Mine Safety and Health Act.

The MOU between DOL and ECS allows DOL to make a direct referral of an OSH Act case to ECS (or to a United States Attorneys' Office with notice to ECS). This will give ECS a larger pool of possible criminal referrals. DOL also agreed to share all investigation files with DOJ to the extent the information is needed to develop or litigate a case.

Deborah Harris, Chief of ECS, has been a long-time advocate for this initiative. This announcement follows on the efforts of Ms. Harris and ECS over the past several years to train hundreds of OSHA inspectors on both environmental and Title 18 offenses, encouraging them to identify possible environmental criminal matters for investigation in the course of their work.

Copies of the memo to the U.S. Attorneys is available here and the MOU is available here.

©2020 Katten Muchin Rosenman LLPNational Law Review, Volume V, Number 355


About this Author

Lily N. Chinn, Katten Muchin, Toxic Tort Litigation Lawyer, Products Liability Attorney

Lily Chinn is a strategic advocate and litigator for her corporate and individual clients, providing counsel on the intersection between workplace safety, environmental, natural resources, toxic tort and product liability issues. She focuses on civil and criminal defense, including internal investigations and suspension or debarment proceedings.

Lily is well versed in the litigation of complex appellate and district court cases in venues across the country. She draws on her many years of experience as a trial attorney at the US Department of...

Nadira Clarke, Katten Muchin, Civil environmental Matters Attorney, Bench Trial Lawyer

Nadira Clarke manages complex, high-stakes criminal and civil environmental matters for companies and individuals. A former Assistant US Attorney and trial lawyer with the Department of Justice Environment & Natural Resources Division, Nadira is an experienced advocate, representing clients in both jury and bench trials. Her first-chair experience includes complex cases requiring a mastery of technical or scientific information, as well as the use of expert witnesses. Nadira counsels her clients on preparing for search warrants, responding to grand jury and administrative subpoenas, conducting internal investigations and designing corporate compliance programs.

Nadira's background with the Department of Justice (DOJ) provides a helpful point of view for her clients. She was selected to join the US Attorney General's Honor Program at the DOJ where she served as a trial attorney with the Environmental Crimes Section and the Natural Resources Section. Because of her distinguished performance, Nadira was asked to serve as a Special Assistant to the Assistant Attorney General for the Environment & Natural Resources Division. In that role, she handled a variety of civil and criminal matters impacting national environmental policy. The invaluable connections she developed during her time with the DOJ mean that Nadira has exceptional understanding of governmental resources and processes.

Greg Dillard, Health Safety Attorney, Labor, OSHA, Katten Law Firm

Gregory C. Dillard (Greg) advises clients on health and safety (EHS) issues, and focuses on major accident response, including upstream, midstream and downstream PSM incidents and workplace fatalities. Greg provides on-site response support after such incidents and litigates subsequent regulatory enforcement cases, including Occupational Safety and Health Administration (OSHA), Bureau of Safety and Environmental Enforcement (BSEE) and state agencies. Greg also routinely supervises internal company investigations and advises and trains companies on all aspects of safety...

Steven P. Solow, Katten Muchin, Environment Workplace Safety lawyer

Steven P. Solow is co-head of Katten's Environmental and Workplace Safety practice and co-head of the White Collar, Investigations and Compliance practice in the firm's Washington, DC office. Steve is also a member of Katten's Board of Directors and the Executive Committee. He focuses his practice on business crimes, internal investigations, corporate compliance and security programs and environmental civil and criminal litigation. He represents and counsels corporations and business associations regarding their legal and regulatory obligations, develops integrated...