A Dangerous Business Revisited
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Marc Freedman

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Marc Freedman is director of labor law policy at the U.S. Chamber of Commerce, which represents some 3 million businesses nationwide before Congress, regulatory agencies and the courts. Since 2004 he has developed the organization's policy on matters involving the Occupational Safety and Health Administration (OSHA) and other workplace issues. For more than a decade, the Chamber of Commerce has lobbied against increasing criminal penalties for OSHA violations.This is the edited transcript of an interview conducted Dec. 13, 2007.

I understand that the U.S. Chamber of Commerce is against increasing OSHA penalties. Why?

Let me just start off by commenting on the whole situation of bad employers. First of all, we're not here to defend or to support employers who put their employees at risk and don't take safety seriously. So let's be clear about that upfront. The idea of increasing criminal penalties, we believe, is not an effective strategy for improving safety in the workplace, which is really the true question that people should look at here.

Currently, if you willfully violate an OSHA regulation and a death results from it, it is only a misdemeanor -- six months in jail and a fine. Let me tell you what former high-ranking government prosecutor David Uhlmann said when we asked him about the penalties. He says, "It should not be a misdemeanor to willfully violate the worker safety laws and thereby cause the death of one of your workers. That should not be a misdemeanor. It's 2007 in the United States of America. It should be a felony violation."

The question of whether increasing the criminal penalties is going to result in safer work places and protecting employees better is one that we would take a different position on. What I hear from my members and from, quite frankly, attorneys that work in this field is that if you were to increase these penalties and criminalize more actions, what you're going to find is that many more employers will choose to challenge the citations. And it's going to result in a lot more litigation, a lot more time in court, and it's going to chill a process where employers can work with OSHA and end up implementing remedial measures and abating the hazards.

And that doesn't protect employees at all. If you're not doing the things you're supposed to be doing, then employees are not getting any more protection out of it. Increasing these penalties will mean that employers will challenge these citations more and that will, therefore, suspend any implementation of remedial measures that might happen in a settlement agreement.

If you willfully violate an OSHA regulation and it results in the death of a worker, the maximum penalty is a misdemeanor. If you cause serious bodily harm, there is no criminal penalty under federal law.

There are a couple points to keep in mind here. First, states do prosecute these types of situations, and all states have laws dealing with reckless endangerment. So just because OSHA may not be the prosecuting force here doesn't mean that employers are necessarily getting away with these actions. Secondly, if you were to increase these penalties and essentially criminalize more behavior, what you're going to find is that many more employers will challenge those citations, which will result in much more time in court.

Now, in that context, there's often going to be civil penalties attached to that situation as well, not just criminal. And those civil penalties are often subject to negotiation, and part of those negotiations usually includes the employer agreeing to implement certain remedial measures. Under a heightened standard of penalties, you're going to find that employers are going to challenge those penalties more than they did before, more than they are currently.

And those challenges going through the court system will suspend the implementation of those remedial measures, and therefore, you're not improving safety in the workplace. ...

In many cases we've investigated, the local district attorneys didn't get involved. They said it's an industrial accident. The OSHA people in many cases, very frustrated, would call for a criminal investigation, and the Justice Department would come back with, "Well, it's a misdemeanor." The FBI would say it's a misdemeanor.

And I'm not trying to diminish the nature of what that company [McWane] was doing, but let's look at how that story played out. Eventually, you brought attention to it; eventually, they apparently have corrected their ways, at least to some degree. My sense is that the system does work. It may take more effort than some people want to see it take, it may take longer than some people want to see it take, but eventually you see these cases getting the attention they need. And, in fact, there are criminal penalties involved here.

One of the other points I was going to make is that -- and, again, I'm not at all trying to diminish the nature of workplace accidents or, heaven forbid, people dying in the workplace -- but it's a legal question as to whether the employer should be held accountable for that. Bad employers should be held accountable. I'm not defending them; I'm not trying to give them any cover.

But whether the employer did or didn't do what they were supposed to do -- that they didn't have the proper safety policies in place and didn't provide the employees with enough training and equipment -- is really the heart of the matter. You can have an employer doing everything they're supposed to do and still have an accident or death in the workplace. And so we have to be careful when we look at these situations and assume that the employer is the one that has to be held accountable.

Our experience was, in investigating this story, that the state authorities in Alabama did not get involved, and the state authorities in Texas did not get involved where there were deaths of workers involved. The authorities in New York State, and this goes back a number of years, did get involved, but only, according to people involved in the investigation, when the federal government threatened to get involved did the state authorities do anything in terms of making any charges. So it appears that in certain communities where large plants have some degree of political power behind them, nothing happens. The last resort is OSHA, and OSHA says it's a misdemeanor and can't get anybody to prosecute.

What I can tell you is that even though we have these bad cases, these bad cases are not the only cases out there. And so the questions I would look at is, is it appropriate to go through some type of large-scale change in the penalty structure of OSHA based on a few cases? I mean, let's look at some broader pictures here. Injuries and illnesses in the workplace are down; they're at the lowest level they ever have been. Fatalities are down; they're at the lowest level they have been since they started taking records in 1992. The bigger picture here is that workplaces are getting safer.

Now I'm not going to dismiss the idea that there are bad employers out there, and certainly those employers need to be found and held accountable. That's without dispute. But if you are talking about changing the criminal penalty structure, I would ask you to think about the broader impact of that and whether that's really going to improve workplace safety.

Bad employers, as I have seen, don't respond to criminal penalties. They're going to be bad employers, and they have to be found. The question is, does increasing criminal penalties really improve workplace safety on a broad scale? And our feeling is that it's not an effective strategy. As I said, you end up in court more often; you have longer litigation challenges, diverting resources from other activities. And we believe that providing assistance and helping companies understand what they need to do is a much better strategy.

In fact we've seen some evidence of that; the recent administration has put more emphasis in that direction, and we've seen lower injury rates in the workplace during that period.

Editor's note: In 2003 the Department of Labor's inspector general recommended that OSHA study the deterrent effect of increasing penalties for those responsible for workers killed on the job. OSHA would not respond to repeated requests from FRONTLINE for information on the status of the recommendation.

The Department of Justice started a Worker Endangerment Initiative out of their Environmental Crimes Section because they saw a gap in terms of enforcement. The way they saw to fill that gap was to use environmental law, which has a 15-year felony sentence versus six months. And they have prosecuted, doing that, major corporations -- W.R. Grace is currently under indictment, British Petroleum is about to agree to pay a $50 million criminal fine for an incident that killed 15 workers.

So apparently the prosecutors think that there are major companies that require this kind of criminal sanction in order to bring them in line. And are you saying the Chamber of Commerce is against this?

What I'm saying is that the idea of increasing criminal penalties, again, is not an effective strategy for improving workplace safety, which really is the ultimate question here. The real target should be, how do we get more employers to bring better safety practices to their workplaces? That's where employees are going to be protected. ...

The Chamber has been very successful in Congress.


Whenever anyone proposes, for instance, an increase in the criminal penalties, generally speaking it doesn't get out of committee.

It may not, but I'm not going to sit here and try to convince you that the Chamber is the only reason that result occurs. I mean, first of all, there's a lot of other employer associations that feel similar to ours. There are oftentimes political issues that have an impact on that question. We certainly voice our opinion, we certainly are involved in the process, but it would be the height of arrogance to sit here and tell you that it's only because the Chamber has waved the magic wand --

Well, let's put it a different way, the Chamber and its allies -- most of American industry -- have opposed this consistently.


Although we do hear from some major companies that they would like more severe criminal penalties to level the playing field with their competition, who may not be as responsible as they are.

I would say, again, we're not here to try and protect or give cover to bad companies. Even if we object to the increase in penalties, we're not doing it because we want bad companies to be allowed to walk. That's not the focus of our thinking. The question is whether this is going to help improve safety in the workplace, and what the overall impact of that change would be.

But what's going on now, objectively, is that the Justice Department, through its Environmental Crimes Section, is trying to use environmental laws as a sort of backdoor way to address the worker endangerment issue -- for example, convicting companies of a violation of the Clean Water Act when they provided an unsafe workplace.

Sort of like the Al Capone situation.

I guess I would raise that as an example that says, look, there is more than one way to go after people, and sometimes there may be an element of creativity in how you go after a bad actor.

Let's take that Al Capone situation. Prosecutors used the income tax laws against organized crime to the extent that they could, but after doing that for decades, there was a realization that it really wasn't that effective. The Mafia was getting more powerful, so they eventually passed laws against the Mafia, against racketeering and organized crime.

But you also had a much broader organization to target. In the Mafia case we're not talking about a few bad actors in a broader system, you're looking at the Mafia. ...

We're not talking here about adding a felony status to not having a fire extinguisher and not labeling it properly. We're talking here about serious consequences when families are left without a husband or a son or a daughter. Shouldn't that be something that's severely punished?

Well, our basic point is that these types of situations are being caught by -- from everything I've heard -- various state laws. Different states have their laws and their prosecution apparatus in place, notwithstanding some cases where that may not have happened as much as it happened in others. I can't answer for all those cases. I can just tell you that this is not -- our position is that we don't believe that's the sound way to go in terms of overall OSHA policy.

It's going to have consequences that are not consistent with the thrust of improving safety in the workplace. ...

So what you're afraid of is, if you open up the law to a small change, once that hits the floor of Congress, it's going to infect everything?

I'm not going to sit here and try to negotiate a new OSHA law or a new penalty structure in the context of a TV program. I can tell you that our position right now is that we don't support an increase in the criminal penalty structure, and that's a firm position that covers, I think, all the possibilities.

How would you improve OSHA law?

I would like to see OSHA do more with respect to getting a message out into the broader mainstream about the value of working safely. Right now, they're doing what they can, but I don't think they have the resources to really push a message out beyond those people who already understand the need. I have seen, in other countries, that they have put out TV ads saying the consequences of not working safely, pushing the idea of how everyone has a role in making sure that workplaces are safe.

I think that's a mainstream message that has to get out. We don't see that here. We've seen campaigns on various other things that have changed people's behavior: smoking. We sold the military as a career; why can't we sell safety in the workplace as a lifestyle?

So is the Chamber of Commerce lobbying its members in the media, for instance, to put more public service ads about worker safety?

That's an idea I have had that we haven't moved on yet, but --

So you're not doing that?

We're not doing that right now, but that's something I think would be a great idea if we could get people to do it.

The British have just criminalized gross negligence when it relates to the death of a worker. Nationally.

I wasn't aware of that.

They apparently don't seem to think that is going to interfere with the other workers safety issues and so forth.

They've made their judgments. That's something the British have decided they want to do.

In the U.S. it's a misdemeanor, yet it's a felony here under federal law to kill a wild burro on federal land. It sounds absurd.

I've heard this comparison before.

And it's not a felony for killing a worker.

I can only tell you that in terms of the Chamber's position on this, our feeling is that that's not going to improve workplace safety. ...

Is the Chamber against the Protecting America's Workers Act because it increases penalties?

Again, this is the legislative vehicle that's out there that would make those changes. And as I've said, we don't believe that the thrust of that legislation would help employers improve safety in the workplace. It does not bring any more resources to the idea of compliance assistance or instructions or training for employers, or explaining what happens or what employers are supposed to be doing to improve safety in their workplaces.

Have you participated in discussions at the Chamber of Commerce where you've gone over this reality that it's a misdemeanor?

I have had conversations with our members, and the reaction they give me is the one that I've been giving you. They're not comfortable with the idea of changing the penalty structure, and they see that as leading to a series of consequences that wouldn't help the overall question of safety in the workplace.

It feels as if this issue has gotten lost in political lobbying.

This is a political question. It is one that has to go through Congress. It could be debated there, and if that is where the political forces take it, then that's something that could happen.

Members of Congress have introduced the issue, but they know that politically they can't get it to move because of all the lobbying.

But you can't look at that and say that's only because of the Chamber or, for that matter, the business community. Congress is a big organization. ...

If it doesn't have enough support behind it, and it's not moving, it's not just because of the Chamber's activities. We'd like to take credit for a lot of things, but I can't sit here and tell you it's only because of us.

But reasonably, as an attorney, doesn't it seem like there should be a stiffer penalty, at least in this narrow case?

As an attorney who works for the Chamber, I'm going to tell you that I'm going to stick with the Chamber's position on this, and I think that's where we are right now.

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posted february 5, 2008

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