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A Dangerous Business Revisited
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The Penalty for Killing a Worker?  by Marlena Telvick

Under the federal worker-safety law, causing a worker's death remains a misdemeanor.

On average, nearly 16 workers die each day from injuries sustained at work in the United States.

Marlena Telvick, the coordinating producer for A Dangerous Business Revisited, is deputy director of the Investigative Reporting Program at the U.C. Berkeley Graduate School of Journalism.

Reginald "Reggie" Elston was just out of the Navy when he took a job as a maintenance worker at Union Foundry, a McWane subsidiary tucked beneath the Appalachian foothills in Anniston, Ala. At the time, he and his wife were expecting a baby daughter, and Elston planned on supporting his young family as an electrician one day. But on Aug. 22, 2000, he would die on the job, one day before his 28th birthday.

"It was just a regular day," said Laura Humphrey, Elston's widow. The couple's daughter was just seven weeks old, and Elston had promised to call during his lunch break. When the phone rang, however, it was Elston's mother, calling to deliver the tragic news. Humphrey would later learn that a conveyer belt had pulled her husband by the arm, crushing him in a machine from which safety devices had been removed. "I hope he died right away," she said recently. "They never told me."

As with most industrial accidents, America's worker-safety agency -- the Occupational Safety and Health Administration (OSHA) -- conducted an investigation. They found 21 violations at Union Foundry and, in 2001, fined the company more than $100,000. The investigation revealed violations that Union had previously been cited for, including one "willful" violation, meaning the company intentionally violated the law or acted with "plain indifference" to it.

Willful violations can be referred to the Justice Department for criminal prosecution, but because OSHA allows companies to appeal and settle its citations, the original willful citation in Elston's death was eventually changed to an "unclassified" violation, a vague category that "virtually forecloses the possibility of prosecution," according to a 2003 article in The New York Times. Elston's case was not initially referred to the Justice Department.

But even when a death on the job results from a willful violation of worker-safety law, the criminal penalty, if it is prosecuted, is a veritable slap on the wrist: a Class B misdemeanor carrying a maximum sentence of six months in jail.

No one knows how many of the more than 5,000 job-related deaths annually in the U.S. are the result of criminal conduct by employers, but only a handful of cases are referred by OSHA to the Justice Department. According to Peg Seminario, director of safety and health at the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), in 2006 there were 11 criminal referrals to the Department of Justice out of the 2,400 workplace deaths that occurred under federal OSHA jurisdiction. FRONTLINE was unable to independently verify these figures, and OSHA did not respond to repeated requests to obtain this information.

"Worker deaths are routinely described as the result of 'accidents' instead of the predictable and preventable consequences of exposing workers to dangers on the job," says Michael Silverstein, professor of environmental and occupational health sciences at the University of Washington and former director of policy for OSHA.

A New Prosecution Strategy

Following the New York Times series and FRONTLINE's broadcast on McWane in 2003, the Justice Department decided to take a closer look at Union Foundry, and at the death of Reggie Elston. OSHA's civil investigation had long been concluded when Justice Department officials decided to reexamine the case from a criminal perspective.

Investigators determined that Elston's death was in fact the result of the plant's willful disregard of safety rules. But because of the weak criminal penalties for those violations, prosecutors looked to other laws under which to prosecute McWane and Union Foundry. Their investigation revealed environmental crimes in addition to worker-safety violations.

"Under the current occupational safety and health law in the United States, there's not a lot in the way of criminal sanctions available. [But] the environmental laws provide heightened penalties," said David Uhlmann, who until 2007 headed the Environmental Crimes Section at the Justice Department.

Uhlmann led a nationwide investigation of McWane facilities in four states. At Union Foundry, McWane eventually pleaded guilty to willfully violating worker-safety laws as well as illegally treating hazardous waste in violation of the Resource Conservation and Recovery Act (RCRA). The company was ordered to pay criminal penalties of $3.5 million, invest $750,000 in a community service project and serve three years probation. In addition, Elston's widow filed a civil suit that resulted in a $2.27 million settlement with the company.

The prosecution was part of a new prosecutorial model known as the Worker Endangerment Initiative, which uses environmental laws like the Clean Water Act, the Clean Air Act and the RCRA to seek felony convictions when workers are seriously injured or killed on the job during the course of an environmental violation.

The difference in penalties is significant. Prosecutors can seek a sentence of up to 15 years for a worker's death or serious injury under environmental laws, compared to six months or up to one year for a repeat conviction involving the death of a worker under the worker-safety law.

This new strategy has proven successful when environmental violations are involved, but the McWane prosecutor still wants to see reform. "It's 2007 in the United States of America," said Uhlmann, who is now a professor at the University of Michigan. "It should be a felony violation if you willfully commit a worker-safety violation that results in a worker death."

Federal Enforcement: OSH Act Provisions

In 1970, when President Richard Nixon signed the Occupational Safety and Health (OSH) Act, more than 10,000 people were dying of work-related injuries every year. The decline to half that number today is said to reflect technological advancements as well as the imposition of OSHA standards. But even considering that decline, workplace deaths still occur with disturbing frequency.

On average, nearly 16 workers die each day from injuries sustained at work in the United States. In addition, more than 130 die each day from diseases resulting from exposure to workplace hazards over time, according to the Centers for Disease Control and Prevention's National Institute for Occupational Safety and Health.

Since the law was first enacted, penalties under the OSH Act have only been increased once, and violators frequently receive fines much lower than what the statute allows. Fines for each "serious" violation -- where there is a "substantial probability that death or serious physical harm could result" -- are capped at $7,000 per violation.

But according to an April 2007 AFL-CIO report, in 2006 the average federal OSHA penalty for such a violation was just $800 ($2,000 for a violation relating to a fatality inspection). Fines for willful violations or repeat violations can be as high as $70,000, but the average fine that federal OSHA proposed in 2006 was just $19,000 for repeat violations and $30,000 for investigations associated with a fatality. (Proposed fines and violations can be reduced or eliminated when a company appeals a citation.)

All serious and willful violations are subject to administrative civil fines under the OSH Act, but violators are only open to criminal prosecution when a worker dies. The solicitor general of the Department of Labor can review a case and refer it to the Justice Department. In the rare cases when the department chooses to prosecute under the OSH Act, the crime remains a Class B misdemeanor. The Sentencing Reform Act of 1984 increased the penalties beyond those provided in the OSH Act to a $250,000 fine for individuals and $500,000 for an organization.

One way OSHA can enhance penalties is by issuing multiple civil citations for a single incident, as they did in the death of maintenance mechanic Rolan Hoskin at McWane's Tyler Pipe plant in 2000. There, citing 17 willful safety and health violations, OSHA levied a cumulative fine of $1 million, in addition to a $250,000 criminal penalty.

Fines of this scale are on the rise. In 2005, OSHA issued a record fine of more than $21 million against BP Products North America, Inc., a subsidiary of British Petroleum, almost twice the next largest OSHA fine ever issued. The citation included 301 willful violations of worker-safety laws.

And in August 2007, OSHA proposed $2.78 million in penalties against industrial laundry giant Cintas for 42 willful violations found during an inspection after a worker fell into an operating dryer.

State Enforcement

In addition to federal OSHA law, some 22 states, including California, Utah, Washington and Michigan, have their own worker health and safety agencies that meet or exceed federal OSHA standards. A recent case in Northern California shows that state civil and criminal enforcement can be highly effective.

In November 2004, a gasoline pipeline exploded in Walnut Creek, Calif., 20 miles from San Francisco. The blast killed five workers and seriously injured four others. In October 2007, KMGP Services Co., a subsidiary of pipeline giant Kinder Morgan, was convicted on six felony counts for violating worker-safety regulations. The company paid $15 million in criminal and civil penalties and more than $69 million in settlements to victims' families.

"We prosecutors in California are very fortunate to have the criminal penalties we do have in these worker-safety cases," says Contra Costa Deputy District Attorney Lon Wixson. Since 1999, Wixson says, the state's maximum fine for a first-time violation is $1.5 million; the ceiling increases to $2.5 million for a repeat offense. Wixson points out this is considerably higher than the $10,000 maximum fine for a manslaughter conviction. Prosecutors can also charge violations as felonies.

But California is the exception rather than the rule, according to Washington University law professor Kathleen Brickey. "California has a much bigger bite than most state OSHA plans," she said. "Other states are lagging way behind."

Prospects for Reform

Increased fines, novel legal strategies and state efforts have had some success, but worker-safety advocates continue to push for stiffer criminal penalties for willful misbehavior by employers.

In April 2007, Democratic lawmakers introduced the Protecting America's Workers Act in both the House and Senate. The legislation would amend the OSH Act by increasing civil penalties for violations from $7,000 to as much as $250,000, similar to what can be imposed criminally. The proposed law would also cover 8.5 million employees currently not covered under federal worker-safety laws, including state and local public employees.

But many business groups oppose any increase in civil or criminal penalties. The U.S. Chamber of Commerce, which represents more than 3 million U.S. companies, listed "block attempts to increase penalties for criminal violations of OSHA" as one of its policy priorities for 2007. Marc Freedman, the chamber's director of labor policy, reiterated the policy to FRONTLINE. "Our position right now is that we don't support an increase in the criminal penalty structure," he said.

"We don't believe that the thrust of that legislation would help employers improve safety in the workplace," Freedman said of the current bill. Instead, Freedman said that OSHA should focus on "getting a message out into the broader mainstream about the value of working safely" by running TV ads, for example.

The AFL-CIO's Peg Seminario thinks prospects for the Protecting America's Workers Act are dim, barring an event that sheds light on the situation. "If there's a major workplace catastrophe that kills a large number of workers, it's possible that legislation could move, but absent such a tragedy, passage during this Congress is unlikely," she said.

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posted february 5, 2008

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