Sunday, November 05, 2006

Walking Away From Negligent Homicide

I've been writing the same stupid, tragic stories in this stupid blog almost every single day for three and a half years, but there never cease to be stories like this that make me mad as hell and nauseous at the same time.

Jeremy Foster's stepmother, Becky, sent me this article about her son, yet another young worker -- 19 years old -- who was killed in a perfectly preventable incident that should have drawn a citation that might have really punished the company, and, more important, sent a message throughout the land that this kind of thing absolutely won't be tolerated.

Instead, for the death of Jeremy Foster in a sawmill accident more than two years ago, OSHA fined the company, Deltic Timber in Ola, Arkansas, a grand total of $2,250. That $2,250 was half of the original fine because OSHA wanted to ensure that the problems were fixed as quickly as possible. Sometimes that kind of thing makes sense, because the law states that if an employer appeals an OSHA citation, they don't have to fix the problem until the appeal is exhausted which can be months or years later. In this case, however, the problem had been fixed while OSHA was still at the plant, well before they issued the original $4,500 citation.
On the night of Oct. 1, 2004, Foster showed up for work at the Deltic Timber plant in Ola where he worked as a chipper attendant. His job was to remove wood chips and sawdust from a chipping machine.

As usual, he worked alone. No one witnessed his accident that night, but a report filed by the Ola Police Department describes what happened, based on testimony from co-workers who found Foster’s body:

“Co-workers stated that Foster’s sweatshirt had got caught and tangled up in the tail spool. Co-worker said that Foster had apparently grabbed the shirt and tried to free himself …. Foster’s left glove apparently got hung inside the tail spool, possibly when he was trying to free himself.”

Foster died of asphyxiation, strangled as his sweatshirt — caught on a circulating machine shaft — wrapped tighter around him.

Normally, a machine operator in a similar situation would have been able to slide off the shaft. But the shaft that caught Foster’s sweatshirt had a piece of metal welded to its end, preventing Foster from freeing himself.

In January 2005, the U.S. Occupational Safety and Health Administration (OSHA) cited Deltic for a “serious” violation, noting:

“In the chipper tender area, the projecting end of the tail spool shaft on the edger saw dust chain conveyor did not present a smooth surface. A metal bar had been welded to the end of the shaft, which created a catch point. On or about 10/1/04, an employee’s shirt was caught on and twisted around the metal bar and rotating shaft, resulting in the death of the employee.”
Foster's parents are feeling betrayed by their government. “Deltic walked away from negligent homicide,” Foster's father, Jeff, said.

One other thing that just isn't right. Foster worked for a temporary agency, not Deltic. More and more, companies are hiring "independent contractors" or temps so that they don't have the responsiblity of paying the same benefits or providing the same training that their regular employees get. The downside, is that unlike regular employees who are barred by workers compensation laws from suing their employer, contract workers usually are not prevented from suing. For some odd reason, this isn't the case here:
Little Rock attorney Gary Davis advised Foster’s family that “only a workers’ compensation claim would be available under circumstances due to our ‘exclusive remedy’ law in Arkansas. Deltic Timber would, by use of the ‘dual employment doctrine,’ likely be able to also take advantage of this exclusive remedy provision of Arkansas law. In other words, Deltic will be allowed to declare themselves as Jeremy’s ‘employer’ for purposes of the law which returns us to the limits of workers’ compensation. … Since Jeremy had no dependents, there is really no monetary gain to be had from even pursuing a workers’ compensation claim.”

While Jeremy was alive, Deltic did not treat him as a company employee. According to his parents, Jeremy Foster did not clock in, as a Deltic employee would. He signed in at the guardshack, like a contractor. And his temp agency paid him, not Deltic.
And just to add insult to injury, worker comp didn't even have to pay anything, because Jeremy had no dependents.
“The way workman’s comp laws in Arkansas work, they protect the company,” Jeff Foster said. “If Jeremy had just been hurt, we could have got a large settlement. But since he died, we didn’t.” If a worker killed on the job has dependents, benefits may be paid to them, but Foster had none.
Finally, take a look at the comments at the bottom of the article by Jeremy's parents, friends and relatives following the article. They get it.

Jeremy's mother and stepfather wrote: "What was OSHA thinking? They are suppose to be so strict!" His aunt and uncle wrote "I thought OSHA was suppose to ensure a safe work place for us, But is our tax dollars being wasted?"

Here we see the myth propagated by corporate America. OSHA the bully, OSHA the gestapo, OSHA the job-destroyer.

A wise person once told me that America should have the laws that people think we already have. People think that companies that kill workers will be seriously punished. They think that fines will be more than the cost of a beat-up old used car. People think that workplace homicide is a serious offense. People think that someone, somewhere -- like maybe even politicians -- gives a shit.

But this isn't the reality in the United States today. Workers can be killed due to employer negligence the employer will get away with a slap on the wrist. Even if the death is caused by a violation that the employer knew was life-threatening, there are only criminal prosecutions in the rarest of circumstances, almost never resulting in jail. Unfortunately, the reality doesn't sink in until you lose your teen-age son, or your husband, or father (or daughter, wife or mother).

Is this the kind of country people think we live in? I don't think so.

So what are we doing about it?