Willful, Schmillful: Michigan Republicans Take the Sting Out of Killing Workers

After the New York Times series showing that almost no employer who willfully causes a worker's death ever gets jailtime, the "buzz" around the country (at least those concerned with worker safety -- or common human decency) seems to be in the direction of how we can make it easier to punish the worst employers. But not in Michigan.

Right now, a willful citation -- and a maximum $70,000 fine (on the federal level) is the most severe civil penalty that OSHA can issue against an employer. Federal OSHA handed down less than 400 willful citations in Fiscal Year 2003. Despite that low number, the Michigan legislature has decided that life is far to hard on employers who willfully kill or injure their employees. The Republican-controlled Michigan House of Representatives has passed Senate Bill 647 making it almost impossible to ever again issue a willful citation.

A little background. The federal OSHA directive states that "intentional violation of the Act or plain indifference to its requirements" can justify a willful citation. An employer needs to know that that an OSHA standard is being violated and intentionally do nothing about it. But "plain indifference" can apply even if the employer did not know about a specific legal requirement

but was aware that a condition or practice was hazardous to the safety or health of employees and made little or no effort to determine the extent of the problem or to take the corrective action. Knowledge of a hazard may be gained from such means as insurance company reports, safety committee or other internal reports, the occurrence of illnesses or injuries, media coverage, or, in some cases, complaints of employees or their representatives.

According to the Michigan Senate Bill 647, the employer would have to have knowledge of the hazardous condition and act with "a knowing and purposeful intentional disregard of the law." There would have to be a "factual demonstration" that the employer had intentionally and deliberately disregarded his or her responsibilities under a specific provision of the law or a standard.

In other words, in addition to the smoking gun, you would need a signed, notarized statement from the employer stating that he knew he was violating a specific standard (paragraph and subparagraph would probably be helpful as well).

A few House Democrats and Democratic Gov. Jennifer Granholm argued that the bill would make it more difficult to create safe work environments.

"It would define willful violation in such a way that it would be almost impossible to find a willful violation," Granholm spokeswoman Liz Boyd said. "We could be out of compliance with federal law if we adopted that weak standard."

Oh, and for good measure, the Republican also passed a resolution that directs Governor Granholm not to issue an ergonomics standard.

Supporters of the resolution said Michigan can't afford to put new standards on businesses at a time they're taking jobs out of the state to save money. New requirements will drive away companies in Michigan and prevent others from locating in the state, they said.

"We don't need no stinkin' need to get rid of regulations," said Rep. Clark Bisbee, a Republican from Jackson who introduced the resolution.