A Worker Dies: Who is Ultimately to Blame?

Occupational Hazards magazine has an article by Jim Nash continuing the NY Times story that revealed that OSHA failed to seek criminal prosecution against 93 percent of the companies whose willful violations of safety rules caused workers to die. And then the Justice Department declined to prosecute most of those cases that were referred by OSHA.

One of the causes most often cited is the fact that OSHA prosecutions is that killing a worker due to a willful OSHA citation is only a misdemeanors and not a felony. For this reason, Senator Jon Corzine had introduced legislation making the death of worker due to a willful violation a felony.

But a representative of the Justice Department doesn't necessarily agree that this would solve the problem:

A Justice Department official countered that simply making these cases felonies might not lead to many more prosecutions. The problem, according to the official, is that according to the OSH Act, only employers can be charged with a crime. In large companies, the supervisor responsible for violating the OSHA rule is not the employer, while the company's owner -- the legal employer -- usually has no knowledge of the OSHA violation, making it almost impossible to prove that the violation was willful.

As a result, DOJ can usually prosecute only small companies where the employer also supervises the work, while large corporations are passed over.

"If you want to increase the number of criminal prosecutions," argued the DOJ official, "you need a 'wrong-doer provision' added to the current law that would allow us to go after the supervisor who committed the willful violation." That, along with increased penalties for willful fatality cases would lead to far more criminal prosecutions than simply making it a felony to kill a worker, the official contended.

I'm not sure I like the idea of going after the immediate supervisor in most cases. Generally, the immediate supervisor, especially in large companies, is acting within the system that is handed to him. The immediate supervisor generally doesn't set the deadlines, determine the pace of the work, the training the workers have, or even the equipment that's available. He, himself, may not have been properly trained to get the job done safely:

"I want that tank cleaned out by the end of the week. I don't care how it gets done. Oh, and by the way, don't spend any more money getting it done."

In other words, in larger companies, the responsibility for safety generally resides far higher up than the general supervisor. In the L.E. Myers case that I wrote about last week, L.E. Myers itself is being prosecuted, and there is a move to take the prosecution to the L.E. Myers' owner, MYR Group which had taken responsibility for the safety programs of its subsidiaries.. It seems to me that this makes much more sense -- if you're interested in changing the entire safety system -- than going after immediate supervisors.

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