CHAPTER TWO - OFFENSE CONDUCT


PART E - OFFENSES INVOLVING CRIMINAL ENTERPRISES AND RACKETEERING


5.      LABOR RACKETEERING


Introductory Commentary

The statutes included in this subpart protect the rights of employees under the Taft-Hartley Act, members of labor organizations under the Labor-Management Reporting and Disclosure Act of 1959, and participants of employee pension and welfare benefit plans covered under the Employee Retirement Income Security Act. 

The base offense levels for many of the offenses in this subpart have been determined by reference to analogous sections of the guidelines.  Thus, the base offense levels for bribery, theft, and fraud in this subpart generally correspond to similar conduct under other parts of the guidelines.  The base offense levels for bribery and graft have been set higher than the level for commercial bribery due to the particular vulnerability to exploitation of the organizations covered by this subpart. 

Historical Note:  Effective November 1, 1987.


§2E5.1.     Offering, Accepting, or Soliciting a Bribe or Gratuity Affecting the Operation of an Employee Welfare or Pension Benefit Plan; Prohibited Payments or Lending of Money by Employer or Agent to Employees, Representatives, or Labor Organizations

(a)      Base Offense Level:

(1)       10, if a bribe; or

(2)       6, if a gratuity.

(b)      Specific Offense Characteristics

(1)       If the defendant was a fiduciary of the benefit plan or labor organization, increase by 2 levels.

(2)       If the value of the prohibited payment or the value of the improper benefit to the payer, whichever is greater (A) exceeded $2,000 but did not exceed $5,000, increase by 1 level; or (B) exceeded $5,000, increase by the number of levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount.

(c)      Special Instruction for Fines - Organizations

(1)       In lieu of the pecuniary loss under subsection (a)(3) of §8C2.4 (Base Fine), use the greatest of: (A) the value of the unlawful payment; (B) if a bribe, the value of the benefit received or to be received in return for the unlawful payment; or (C) if a bribe, the consequential damages resulting from the unlawful payment.


Commentary

Statutory Provisions:  18 U.S.C. § 1954; 29 U.S.C. § 186.

Application Notes:

1.      "Bribe" refers to the offer or acceptance of an unlawful payment with the specific understanding that it will corruptly affect an official action of the recipient.

2.      "Gratuity" refers to the offer or acceptance of an unlawful payment other than a bribe.

3.      "Fiduciary of the benefit plan" is defined in 29 U.S.C. § 1002(21)(A) to mean a person who exercises any discretionary authority or control in respect to the management of such plan or exercises authority or control in respect to management or disposition of its assets, or who renders investment advice for a fee or other direct or indirect compensation with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or who has any discretionary authority or responsibility in the administration of such plan. 

4.      "Value of the improper benefit to the payer" is explained in the Commentary to §2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions).

5.      If the adjustment for a fiduciary at §2E5.1(b)(1) applies, do not apply the adjustment at §3B1.3 (Abuse of Position of Trust or Use of Special Skill).

Background:  This section covers the giving or receipt of bribes and other unlawful gratuities involving employee welfare or pension benefit plans, or labor organizations.  The seriousness of the offense is determined by several factors, including the value of the bribe or gratuity and the magnitude of the loss resulting from the transaction.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1989 (see Appendix C, amendment 149); November 1, 1991 (see Appendix C, amendment 422); November 1, 1993 (see Appendix C, amendment 481); November 1, 2001 (see Appendix C, amendment 617); November 1, 2004 (see Appendix C, amendment 666).