Enforcement Policy Shift Creates Legal Opportunities
Sometimes, it's not the usual suspects—new legislation, regulations, executive orders, or landmark court decisions—that give rise to legal job opportunities. Instead, they emerge as a consequence of a simple, directional change in policy. That's what's happening right now with respect to worker health and safety.
The Government Shifts Policy
The DOJ's Environment and Natural Resources Division Environmental Crimes Section and the 94 U.S. Attorneys' Offices will join with the DOL's Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), and Wage and Hour Division (WHD) to investigate and prosecute crimes that endanger workers' safety or health.
This renewed commitment to use criminal investigations and prosecution as an enforcement tool is designed as a wake-up call to employers to take the necessary steps to ensure worker safety and health.
The Memorandum of Understanding accompanying the press release tasks the DOL with identifying and preparing criminal prosecution referrals. It also calls for the DOL and DOJ to participate in joint training programs to help identify potential crimes. A supplemental memorandum to all U.S. Attorneys directs them to consider criminal referrals from the DOL. Laws protecting worker safety and health generally contain only penalties for misdemeanors, but the U.S. Attorney memorandum encourages federal prosecutors to look to Title 18 of the U.S. Code and environmental offenses to increase penalties with the intention of increasing deterrence.
What It Means for Lawyers
Whatever the practical impact of this new initiative and the cooperative efforts of the DOJ and DOL, this initiative will prompt employers to be more vigilant in protecting themselves against potential worker safety and health violations. That will require them to seek more advice and counsel from both their attorneys on staff and/or outside counsel.
This is by no means the first time that a shift in government policy, without having to seek congressional approval or negotiate through the complexities of the regulatory development process, has meant new job and representation opportunities for attorneys. It is a good idea for lawyers to monitor department and agency announcements for such policy tweaks.
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