By Brent I. Clark, James L. Curtis, and Craig B. Simonsen

Safety at workThe U.S. Department of Justice (DOJ) and the Department of Labor (DOL) announced last week an expansion of its worker endangerment initiative to address worker safety violations through the use of enhanced criminal fines and penalties.

According to Deputy Attorney General Sally Quillian Yates, “on an average day in America, 13 workers die on the job, thousands are injured and 150 succumb to diseases they obtained from exposure to carcinogens and other toxic and hazardous substances while they worked.” “Given the troubling statistics on workplace deaths and injuries, the Department of Justice is redoubling its efforts to hold accountable those who unlawfully jeopardize workers’ health and safety.”  Department of Labor Deputy Secretary Chris Lu stated that “today’s announcement demonstrates a renewed commitment by both the Department of Labor and the Department of Justice to utilize criminal prosecution as an enforcement tool to protect the health and safety of workers.” DOJ News Release (December 17, 2015).

According to the DOJ, last year it held meetings to explore a joint effort to increase the frequency and effectiveness of criminal prosecutions of worker endangerment violations. This culminated in a “decision to consolidate the authorities to pursue worker safety statutes within the Department of Justice’s Environment and Natural Resource Division’s Environmental Crimes Section.”  In a December 17, 2015 Memo, sent to all U.S. Attorneys across the country, Deputy Attorney General Yates urged federal prosecutors to work with the Environmental Crimes Section in pursuing criminal prosecutions for worker endangerment violations.

The worker safety statutes had generally provided for only misdemeanor penalties.  However, prosecutors have now been encouraged to consider utilizing Title 18 and environmental offenses, “which often occur in conjunction with worker safety crimes,” to enhance penalties and increase deterrence.  Specifically, the Memo indicates that prosecutors can “make enforcement meaningful” by charging other serious offenses that often occur in association with OSH Act violations. Examples offered include false statements, obstruction of justice, witness tampering, conspiracy, and environmental and endangerment crimes. To facilitate interagency cooperation in implementing this initiative, the DOJ and the DOL have also executed a Memorandum of Understanding on Criminal Prosecutions of Worker Safety Laws (December 17, 2015).

Employers should be leery of these now “added” enforcement authorities. With penalties ranging from five to twenty years of incarceration and significant money fines, criminal enforcement of workplace safety accidents are now significantly more serious.

By Brent I. Clark and Craig B. Simonsen

shutterstock_206483089Thomas Galassi, Director of OSHA’s Directorate of Enforcement Programs, through a very short Memorandum (Memo), announced that OSHA has just added employers in the Oil and Gas Production Services and Drilling and Well Servicing industries to its High-Emphasis Hazards in the Severe Violator Enforcement Program.

We have written previously about steady growth in its OSHA’s SVEP program. Also, as we have noted, SVEP policy for the removal of employers once they are placed on the SVEP list makes removal from the list quite difficult.

The OSHA Administrator David Michaels, following the release of the Memo, noted at an OSHA Employees All-Hands Meeting that “upstream oil and gas production has one of the highest fatal injury rates of any industry. We’ve been working closely with employers in virtually every part of the country where drilling is underway, and most recently signed an alliance with the National Service, Transmission, Exploration & Production Safety Network and NIOSH to prevent injuries, illnesses and fatalities in that industry.”

Galassi noted in the Memo that over the last twenty years upstream operations have experienced a fatality rate that has ranged from “five to eight times greater than the national average for all U.S. industries.” Responding to that fatality rate, OSHA believed that application of its SVEP policy to upstream oil and gas drilling and well-servicing operations was warranted. Under the Memo, now when OSHA finds two or more willful or repeated violations or failure-to-abate notices (or any combination of these violations or notices), based on “high gravity serious violations,” related to upstream oil and gas activities, the employer will be considered a severe violator enforcement case.

Any employer that is designated as a “severe violator” by OSHA faces enhanced enforcement, inspections, and more limited settlement options. Employers should remember that there is no up-front due process to OSHA’s designation as it is solely based on OSHA’s decision to issue citations — not on whether those citations are ultimately upheld or valid. OSHA remains committed to this “guilty until proven innocent” scheme.

This policy is effective for any citations in the upstream oil and gas industry that are issued on or after February 11, 2015.

By James L. Curtis, Meagan Newman, and Anne D. Harris

A federal judge sentenced the former president of a Port Arthur, Texas chemical company to one year in prison and ordered him to pay fines in the amount of $5,000 for violations of the OSH Act and making a false statement.

Matthew Lawrence Bowman, the former president and owner of Port Arthur Chemical and Environmental Services LLC (PACES) pleaded guilty on May 9, 2013, admitting he did not properly protect employees from hydrogen sulfide exposure and that he directed employees to falsify transportation documents to conceal that wastewater was coming PACES after a moratorium was placed on PACES’ shipments due to a finding of hydrogen sulfide in PACES’ loads.

Bowman was responsible for and sometimes personally managed PACES’ production operations, disposal of wastewater, and employee safety procedures.  Due to Bowman’s failure to ensure proper safety precautions related to hydrogen sulfide, two PACES employees were exposed to improper levels of hydrogen sulfide and ultimately died from the exposure.

After Bowman’s sentencing, Eric Harbin, OSHA’s Deputy Regional Administrator stated that “OSHA standards are in place to protect workers and employers will be held accountable when they fail to follow these standards.”  The government’s willingness to hold an individual criminally liable for safety violations provides a strong reminder that employers should review their safety procedures and protocols to make sure they are in line with OSHA’s standards.

Steve Shardonofsky was quoted today by Employment Law360 in an article on “Energy Cos. Brace For DOL Crackdown As Worker Deaths Rise.”

In the article Shardonofsky noted that U.S. Labor “Secretary [Thomas] Perez’s recent statement highlights the fact that we’ll expect higher scrutiny of the oil and gas industry for the foreseeable future.”  

Shardonofsky said that “oil and gas companies have already seen more site visits by Occupational Safety and Health Administration inspectors, more investigations by the DOL’s Wage and Hour Division, and more information sharing between the two departments.”

Employers should have a plan in place to respond to OSHA or wage and hour site visits before the government shows up at your doorstep, to avoid a situation where your employees are essentially freelancing for the DOL. Employers should have identified a point person to interact with government inspectors and investigators, and have a protocol in place to handle requests for information or interviews.

Readers with questions on this important  topic are encouraged to reach out to us in the ES&TT Group, or to Steve Shardonofsky directly.

Seyfarth Shaw OSHA practice partner Meagan Newman was quoted recently in an IndustryWeek article discussing workplace violence.

“Every employer should be thinking about the potential for workplace violence and what steps they might take to prevent or address it.” Newman cites to a case where a Texas convenience store in 2012 had a robbery that resulted in the death of a worker. The company/store owner was cited for violating OSHA’s “general duty” clause.

The article offers some recommendations to create a safer workplace.

By Stephanie Christiansen-LaRocco and Craig B. Simonsen

The Occupational Safety and Health Administration (OSHA) has published for the first time a Directive on Inspection and Citation Guidance for Roadway and Highway Construction Work Zones (October 16, 2012, CPL 02-01-054). The Directive covers any construction activity on and near roadways or highways, such as “road, highway, sidewalk, or utility construction, where public and/or construction vehicular traffic exposes construction workers to struck-by hazards.”

The new Directive is intended to assist Compliance Safety and Health Officers (CSHOs) in safely inspecting roadway and highway construction work zones, and to issue consistent citations for found violations. The Directive is intended to provide guidance for CSHO inspectors on proper citation under 29 CFR 1926, Subpart G, Signs, Signals, and Barricades, which incorporates by reference Part VI of the Federal Highway Administration’s Manual of Uniform Traffic Control Devices (MUTCD). It also provides general enforcement guidance on issuing citations for § 5(a)(1), General Duty Clause violations.

Taken together with the U.S. Bureau of Labor Statistics (BOL) recently released preliminary findings of its 2011 Census of Fatal Occupational Injuries Summary, this Directive illustrates an increased enforcement emphasis by OSHA to inspect and monitor roadway and highway construction activities. Accordingly, industries in this sector can expect greater attention from OSHA inspectors, and their state equivalents. It will be imperative that employers have up-to-date company safety policies and be vigilant in employee safety training to both keep the workforce safe, and to fend off any OSHA enforcement proceedings.