As I reported last May:
Lane, of Sullivan, Ill., was a rookie in the power-line construction industry when he was jolted by 2,400 volts of electricity atop a 120-foot steel tower in Mt. Prospect on Dec. 28, 1999.US Secretary of Labor Elaine Chao was quick to express her pleasure at the sentencing:
Prosecutors said Lane, who was inexperienced, was not warned by his foreman that the line was live.
We are pleased that the judge in this case imposed the maximum penalty (sic), and it should send a loud and clear message that this department will continue to aggressively enforce the law to protect workers.Now, as someone who consistently advocates criminal prosecutions of employers who kill, I am not going to say I'm unhappy about this conviction and sentence, but I am a tad bit underwhelmed for the following reasons.
This conviction comes under the Occupational Safety and Health Act which allows criminal prosecutions due a willful violation of the law that leads to the death of a worker. The problem is that the crime is only a misdemeanor, with a maximum of 6 months in jail and a 5 year probation for the company. In this case, no one was sent to jail, and although the company received the maximum fine, it did not receive the maximum 5 year probation -- despite what the Secretary of Labor said. Probation, in case you were wondering, means only that the company is required to report any safety violations to probation authorities.
LE Myers executives admit that the company had safety problems at one time, but argued that they had rehabilitated themselves. A Chicago Tribune investigation in 2003 showed that the company had had 35 work-related deaths and 200 violations of federal and state safety rules since 1972. Joseph Duffy, attorney for L.E. Myers,
argued that the company had transformed itself since the death of Lane in 1999 and another worker, Wade Cumpston, 43, in 2000.Well, maybe not, if one considers the little matter of the death of Myers employee Richard "Bubba" Haynes, 42, of Killen, Alabama who was killed after being struck by heavy equipment at an nuclear reactor last October. I'd say there's some resemblance there.
Company officials hired a consulting firm in 2000 and adopted safety changes, Duffy said. Training was increased for foremen, and a safety expert was hired into a top management post.
L.E. Myers has new owners, FirstEnergy Corp. of Ohio, and is now an industry leader in safety, he argued.
"The company you are about to sentence ... bears no resemblance ... to the company that was involved in the 1999 accident," Duffy said.
In addition, I'm not convinced (nor is the prosecutor) that Myers has learned its lesson. Myers executives had previously blamed the workers for thier own deaths:
“Neither L.E. Myers nor MYR Group believe there is any criminal wrongdoing with these unfortunate accidents caused by human errors” by the workers who died, says Corey Rubenstein, an attorney for the contractor. Myers carries out extensive safety training, he says. “Obviously, it’s a very dangerous industry and all participants have accidents from time to time,” he says.The prosecutor in this case is also not pleased with Myers:
At a sentencing hearing in federal court Thursday, Assistant U.S. Atty. Eric Sussman lambasted L.E. Myers officials for the company's troubled safety record and for continuing to refer to Lane's death as an accident.Myers attorney Duffy
"We've proven beyond a reasonable doubt to 12 jurors that this was not an accident," Sussman said. "This was the intentional disregard of five separate [safety] statutes that caused the death of Blake Lane."
said after the hearing on Thursday "that L.E. Myers accepts responsibility for its actions but doesn't believe those actions constitute a violation of criminal law. "But Sussman was having none of it:
Sussman argued Thursday that L.E. Myers was in fact fortunate that it faced only misdemeanor penalties.Myers parent firm, the MYR group had originally been included in the prosecution, but for some reason that I could never understand, a federal appeals court threw out the charges against MYR because "the parent company did not control the L.E. Myers work sites."
Sussman told Brown that the maximum fine and term of probation were so small as to be almost "laughable" under the circumstances.
Sussman called $500,000 "not even a drop in the bucket for this company." He cited records showing that in 2000, the company spent more than that on hotels for traveling employees.
So, it's a good thing that OSHA and the Department of Justice went after these guys, but meaningless probation and "drop in the bucket" fines are not going to amount to a significant deterrent for companies like L.E. Myers. Until top executives start facing a credible threat of real jail time -- or at least the company gets suspended from doing government work -- killing workers will remain just another cost of doing business.
- Electrical Contractor Convicted Of Willfully Killing Employee, May 21, 2005
- L.E. Myers and MYR Group: Losing Lives 'While Winning With Safety', February 24, 2004
- Electrocutions at L.E. Myers: Safety Last?, November 25, 2003