February 27, 2007 The Pump Handle 3Comment

Mike Hendricks from the Kansas City Star notes in a recent article that all-too-often, trench collapses happen when “work crews take shortcuts because they’re in a hurry or think a trench box interferes with the job they’re doing.”

While it may be true that workers are “cutting corners” to finish the job they are assigned to do, blaming the workers ignores the 800 pound gorilla in the room.

Instead of blaming the worker for the tragedy that has befallen him, let’s blame those responsible for making him cut corners in the first place. Workers hurry because their priority is getting their work done as quickly as possible so they don’t get fired for being inefficient. Getting the job done as safely as possible is a goal, but not necessarily a priority.

If worker safety were a top priority, employers would be making sure their employees followed safety procedures. If they said “Wear your helmet or we’ll fire you,” and they enforced that policy, employees would know their employer was as serious about safety as he is about profits, and they would follow safety regulations– even if doing so slowed them down.

If employers don’t want to make worker safety a priority, than OSHA should MAKE it their priority– period. They should make the fines they levy something to dread– something to sweat about– not something to sneeze at.

3 thoughts on “The 800 pound gorilla

  1. Forgive me my ignorance on the subject; but is it possible to employ criminal proceedings in place of, or along with, fines? It would seem, on naive reading, that an employer who allowed workers to face known and potentially lethal risks would arguably be guilty of reckless negligence.
    The idea that specific people could face criminal penalties, rather than the company as a whole absorbing minimal fines, would seem to motivate much greater compliance with safety practices by those in charge, and much better reporting of safety hazards by those below them. Since I have not heard of such prosecutions being made, even after worker deaths, I imagine that there is some reason why this does not happen.

    Is it a legal matter, a matter of precedent, or a product of some other cause?

  2. Thank you for this excellent question! Section 17(e) of the 1970 Occupational Safety and Health Act specifies that:

    Any employers who willfully violates any standard, rule, or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both; except that if the conviction is for a violation committed after a first conviction of such a person, punishment shall be by a fine of not more than $20,000 or by imprisonment for not more than one year, or both.

    In practice, however, this provision is rarely used. First, OSHA would face the burden of collecting evidence to prove that the employer “willfully” violated the regulation-which is no easy task. This would take lots of time, energy, and money, and it’s not usually considered worth the effort. Second, OSHA must then convince the Dept of Justice to take the case, another not-so-easy task, especially when the penalties are no more than a $10,000 fine and/or less than 6 months in jail. Let’s face it, prosecuting Scooter Libby is more exciting for Department of Justice (DOJ) than Joe’s Construction Company. In OSHA’s 36 year history, there have probably been less than a dozen criminal cases referred to the DOJ.

    If you look beyond the criminal provisions in the OSH Act to State laws, you’ll find a few more criminal prosecutions of employers found negligent in workers’ deaths. Jordan Barab, former OSHA employee and the owner of Confined Space blog, discussed a case in 2005 where the owner of a construction company was charged with second-degree manslaughter, criminally negligent homicide, first-degree reckless endangerment, and third-degree assault for ordering a worker to enter an unshored trench he knew was dangerous. (The worker was crushed when the trench collapsed on him).

    Occasionally, a bill comes up in the House or Senate proposing to increase criminal penalties specified in the federal OSH Act. In 2003, Senator Corzine (D-NJ) and Rep. DeLauro (D-CT) worked, albeit unsuccessfully, to strengthen the penalties. See a post on this here.

    Also, during last March’s confirmation hearings for Edwin Foulke (now OSHA secretary), Foulke was asked whether he would support legislation to increase OSHA criminal penalties, but he craftily dodged this question by replying:

    If confirmed, I would work with the DOL Solicitor to refer particularly egregious cases for criminal prosecution by the Department of Justice. I would have to review the current cases to see if the current criminal penalties need to be increased.

    (See Jordan Barab’s blog post on Foulke’s confirmation here.)

    In short, criminal penalties for negligent employers may be a good idea, but I don’t expect to see them strengthened, nevermind used consistently, in the near future. If there’s a “regime change” in 2008, maybe we can tackle this issue anew. For now, though, I’m not holding my breath.

    Celeste Monforton assisted in preparing this response.

  3. 2 Mar 07
    Mucho dittos on the above comment. The “enforcement” issue with OSHA has been, and continues to be a joke. There is no deterrent. I totally agree with holding individuals responsible for violations of the law, and double so for corporations in the form of whomever has control of the organization.

    However, to change the law to reflect this will require changing the culture of our elected officials, infoming the general public, and limiting or severely curtailing PAC influence ($) to legislators. Face it: it’s about money. Somebody gives you 6 figures for your election/re-election and they are expecting something in return. What’s the phrase? Quid pro quo.


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