In the initial months of 2022, the Department of Justice (DOJ) has indicated that it will increasingly pursue cases relating to worker safety and safe working conditions through formal collaboration with the Department of Labor (DOL), as well as its subsidiary agencies including the Occupational Safety and Health Administration (OSHA).
In January 2022, former Reed Smith partner and newly confirmed Assistant Attorney General for the Environment and Natural Resources Division (ENRD) Todd Kim delivered remarks signaling an increased focus on prosecuting companies and individuals for environmental crimes that impact worker safety, effectively resurrecting the Worker Endangerment Initiative implemented by the Obama administration in 2015. For those unfamiliar, the Worker Endangerment Initiative 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” through direct collaboration with OSHA, Mine Safety and Health Administration (MSHA), and Wage and Hour Division (WHD). Rather than relying on the more limited criminal penalties available under worker safety statutes, the Deputy Attorney General in 2015 directed federal prosecutors to consider utilizing Title 18 and environmental offenses, “which often occur in conjunction with worker safety crimes,” to enhance penalties and increase deterrence. In January, Kim stated while speaking at a conference that the DOJ ENRD aims 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.” He outlined four priorities that the DOJ ENRD expects from companies:
- Integration of EHS compliance into company culture.
- Systems to foster decision-making that improves EHS outcomes.
- Systems to investigate, determine, and document the cause of EHS deficiencies.
- Enforcement and accountability up the corporate chain for EHS issues.
Yesterday, on March 7, while discussing antitrust and other enforcement at a White House Roundtable, Attorney General Merrick Garland reinforced this collaboration, stating that the 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 the Department of Labor to sharpen the tools at our disposal to protect American workers.”
We anticipate that increased engagement between the DOJ and DOL during the coming year will result in heightened scrutiny and criminal prosecution of incidents that impact worker safety and/or the environment.