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When Workers Die: US Rarely Seeks Charges for Deaths in Workplace
Published on Monday, December 22, 2003 by the New York Times
When Workers Die: US Rarely Seeks Charges for Deaths in Workplace
by David Barstow
 

Every one of their deaths was a potential crime. Workers decapitated on assembly lines, shredded in machinery, burned beyond recognition, electrocuted, buried alive all of them killed, investigators concluded, because their employers willfully violated workplace safety laws.

These deaths represent the very worst in the American workplace, acts of intentional wrongdoing or plain indifference that kill about 100 workers each year. They were not accidents. They happened because a boss removed a safety device to speed up production, or because a company ignored explicit safety warnings, or because a worker was denied proper protective gear.

And for years, in news releases and Congressional testimony, senior officials at the federal Occupational Safety and Health Administration have described these cases as intolerable outrages, "horror stories" that demanded the agency's strongest response. They have repeatedly pledged to press wherever possible for criminal charges against those responsible.

These promises have not been kept.

Over a span of two decades, from 1982 to 2002, OSHA investigated 1,242 of these horror stories instances in which the agency itself concluded that workers had died because of their employer's "willful" safety violations. Yet in 93 percent of those cases, OSHA declined to seek prosecution, an eight-month examination of workplace deaths by The New York Times has found.

What is more, having avoided prosecution once, at least 70 employers willfully violated safety laws again, resulting in scores of additional deaths. Even these repeat violators were rarely prosecuted.

OSHA's reluctance to seek prosecution, The Times found, persisted even when employers had been cited before for the very same safety violation. It persisted even when the violations caused multiple deaths, or when the victims were teenagers. And it persisted even where reviews by administrative judges found abundant proof of willful wrongdoing.

Behind that reluctance, current and former OSHA officials say, is a bureaucracy that works at every level to thwart criminal referrals. They described a bureaucracy that fails to reward, and sometimes penalizes, those who push too hard for prosecution, where aggressive enforcement is suffocated by endless layers of review, where victims' families are frozen out but companies adeptly work the rules in their favor.

"A simple lack of guts and political will," said John T. Phillips, a former regional OSHA administrator in Kansas City and Boston. "You try to reason why something is criminal, and it never flies."

In fact, OSHA has increasingly helped employers, particularly large corporations, avoid the threat of prosecution altogether. Since 1990, the agency has quietly downgraded 202 fatality cases from "willful" to "unclassified," a vague term favored by defense lawyers in part because it virtually forecloses the possibility of prosecution.

The Times's examination based on a computer analysis of two decades of OSHA inspection data, as well as hundreds of interviews and thousands of government records is the first systematic accounting of how this nation confronts employers who kill workers by deliberately violating workplace safety laws. It identified a total of 2,197 deaths, at companies large and small, from international corporations like Shell Oil to family-owned plumbing and painting contractors in quiet corners of America.

On the broadest level, it revealed the degree to which companies whose willful acts kill workers face lighter sanctions than those who deliberately break environmental or financial laws.

For those 2,197 deaths, employers faced $106 million in civil OSHA fines and jail sentences totaling less than 30 years, The Times found. Twenty of those years were from one case, a chicken-plant fire in North Carolina that killed 25 workers in 1991.

By contrast, one company, WorldCom, recently paid $750 million in civil fines for misleading investors. The Environmental Protection Agency, in 2001 alone, obtained prison sentences totaling 256 years.

OSHA has often made itself an easy target for criticism. Labor scolds the agency for taking years to write new safety rules. Business ridicules it for nitpicking inspections. But no one disputes OSHA's duty to deter employers from killing workers by deliberately violating safety laws, and few object to the idea that OSHA should at least ask prosecutors to look at such cases.

Yet OSHA whipsawed by criticism, fearful of public embarrassment has become almost paralyzed by even this task, current and former officials agreed.

In an interview this month, OSHA's administrator, John L. Henshaw, acknowledged that the agency had referred few cases to prosecutors. But he insisted that OSHA seeks criminal sanctions "to the fullest extent that the law provides." And he emphasized that workplace deaths had fallen over the last five years.

OSHA has not sought more prosecutions, he said, because officials concluded that most cases simply lacked enough evidence for a conviction. "There's a higher degree of evidence that you need," he said.

While true in some cases, this is only part of the explanation. Before OSHA deems a violation willful, it subjects the case to especially intense scrutiny, sometimes spending thousands of hours amassing evidence. It does so because of the stigma attached, and because the maximum fine for a willful violation is 10 times higher than for almost any other kind of violation. Only 404 of OSHA's 83,539 cited safety violations this fiscal year were labeled willful.

"We make sure we have the evidence," said John B. Miles Jr., OSHA's regional administrator for five Southern states.

Yet when it comes to deciding what to do with that evidence, many current and former officials said, the culture of reluctance rules, regardless of which party controls Congress or the White House.

Paul Bakewell, who recently retired after 26 years as an OSHA inspector and supervisor in Colorado, said that inspectors meet so much resistance that the very notion of pursuing criminal charges soon disappears especially since killing a worker is only a misdemeanor under federal law.

"I personally didn't think, `Oh, it's a fatal, it's willful, it should go criminal,' " Mr. Bakewell said, adding, "You just don't need that grief. The honest to God truth is that it's just going to slow you down. They want numbers, lots of inspections, and it will hurt you to do one of these cases."

A Tool That Few Will Use

Posters crammed with statistics line the hallway to John Henshaw's office in Washington. "Metrics," he calls them.

Numbers drive OSHA's management culture. When Mr. Henshaw speaks of his accomplishments at OSHA, part of the federal Labor Department, he makes his case with numbers 3,000 more inspections this year than in 2000, 9,000 more serious violations.

But one number missing from Mr. Henshaw's posters is how often OSHA uses its ultimate enforcement tool, the ability to refer cases to federal or state prosecutors.

The omission matters greatly, veterans of the agency said, because at OSHA, what gets counted gets rewarded. And if it is not counted, that sends an unmistakable signal.

When it comes to an interest in prosecuting cases, William M. Murphy, the top OSHA official in Cincinnati until his retirement in 2002, said, "We've never communicated that to the staff."

In the early 1990's, OSHA agreed that inspectors should be trained to work on criminal investigations. The program was discontinued after fewer than 100 employees had the training.

In 1994, the agency formed an Enforcement Litigation Strategy Committee to focus resources on cases with "maximum deterrent effect." Deaths involving willful violations were high on the list. The committee disbanded after a few meetings.

Two years later, OSHA established a policy requiring its local offices to advise Washington in writing of "cases appropriate for potential criminal prosecution." The policy has not been enforced; OSHA headquarters said it could not find any such written notifications.

The Environmental Protection Agency has more than 200 criminal investigators and works closely with three dozen environmental prosecutors at the Justice Department. But Richard E. Fairfax, OSHA's director of enforcement programs, said he had never met William P. Sellers IV, the one federal prosecutor in Washington who works almost entirely on workplace safety crimes. "I know the name," Mr. Fairfax said in August, "but I'm not placing it."

Indeed, although Mr. Henshaw and his top assistants in Washington insist on approving any proposed fine over $100,000, they said they played virtually no role in deciding when the agency seeks criminal charges. That decision, they said, has been left almost entirely to local and regional OSHA officials and Labor Department lawyers.

And yet in at least one region of the country, OSHA inspectors have been instructed in writing not to initiate contact with state law enforcement authorities, whose local laws often offer stronger and more flexible criminal sanctions.

Until presented with results of the Times examination, the agency had never done a comprehensive study of how often workers were killed by willful safety violations.

The Times tried to identify every such workplace death in the last 20 years. It also tracked every prosecution, conviction and jail sentence that resulted from these deaths, and it tallied every civil fine.

The deaths were the subject of 1,798 investigations, 1,242 of them by OSHA. The rest were done by the 21 states and one territory with their own versions of OSHA. But with a handful of exceptions these state agencies have been just as hesitant to seek prosecution as the federal OSHA.

In all, The Times found 196 cases that were referred to state or federal prosecutors, resulting in 81 convictions and 16 jail sentences.

Mr. Henshaw declined to comment specifically on The Times's findings but said he considered it a high priority to seek prosecution for willful violations that kill. "We have a law under the Occupational Safety and Health Act that gives us tools, both civil and criminal, to discharge our responsibility and to correct workplaces," he said. "And that's what we're trying to do."

High Hurdles From Within

When people at OSHA explain their reluctance to pursue criminal prosecutions, they sometimes begin by pointing to the example of Ronald J. McCann.

Mr. McCann, acting regional administrator in Chicago during the early 1980's, was an early champion of criminal prosecutions. He had a simple, no-nonsense approach: If a death resulted from a willful violation, it should be referred to the Justice Department without delay.

But in the early days of the Reagan administration, he said in a recent interview, that policy brought a clear rebuke from OSHA's new political appointees. Twelve times he sought prosecutions. "They were all thrown out." Soon after, he said, he was removed from his job and transferred so often that he ended up living in a tent to avoid moving his family again.

"We wanted to stop people from killing," said Mr. McCann, now retired. "We wanted to make an example of those few people who do so much harm to society for their own personal gain."

But that impulse which many OSHA inspectors clearly share often runs headlong into a deeper instinct to avoid any action that might draw unwelcome scrutiny from Washington. That instinct is reinforced, many OSHA employees say, by an obscure but powerful arm of the Labor Department, the Office of the Solicitor, which oversees the work of the department's 500 or so lawyers.

The solicitor, a political appointee who reports to the labor secretary, makes the final decision on whether to refer a case to the Justice Department. Thomas Williamson Jr., the Labor Department's solicitor under President Bill Clinton, called the solicitor's office a "choke point control" a mechanism to, among other things, protect the labor secretary's political flanks.

And in Mr. Williamson's view, referring cases carries risks OSHA can ill afford. "You lose control of it," he explained. "You start accusing people of crimes and they get acquitted, you're going to destroy the credibility of the agency."

For his part, Mr. Phillips, the former regional administrator, said, "I had more fights with our solicitors than I did with any employer's attorneys."

Joseph M. Woodward, the top OSHA solicitor at the Labor Department, described his office's work as necessary and prudent.

"These are cases where somebody has died and you're looking at maybe it was even a deliberate violation of the standard, so they're very high-priority cases," Mr. Woodward said. "It's a very serious charge, and you don't want to make it unless you think that it's warranted, and that you can prevail. So you analyze it under that much higher burden of proof."

But the practical result, current and former OSHA officials say, is that to have even a chance of referral, a case must clear an unwritten threshold that has little to do with actual legal requirements. In interviews, OSHA investigators used words like "smoke screen" and "snow job" to describe the legal objections they encounter.

"It can't just be willful, it has to be obscenely willful," said Jeff Brooks, who spent 16 years as an inspector and supervisor before leaving the agency in 2001. "If they didn't purposely with malice seek to kill this person, then you don't prosecute."

What this means, they say, is that prosecutors often never even get to assess cases with compelling evidence of criminal wrongdoing. In 1998, for example, inspectors concluded that willful safety violations had resulted in a worker being crushed to death by a front-end loader in Beaver Falls, Pa. They found that the employer, Venango Environmental, had long known that the machine had defective brakes and steering. An administrative law judge called the case "replete with evidence" that Venango had committed willful safety violations.

The case was not referred to prosecutors.

In interviews, a number of federal prosecutors said they would be happy to take on more of these cases. But Joseph A. Dear, who served as OSHA administrator under President Clinton, emphasized that such eagerness was not universal. "After you do all the work, get the file perfect," he said, "you take it to a U.S. attorney, and they say, `It's a misdemeanor?' "

Human Life vs. Harassed Burro

When Congress established OSHA in 1970, it made it a misdemeanor to cause the death of a worker by willfully violating safety laws. The maximum sentence, six months in jail, is half the maximum for harassing a wild burro on federal lands.

With more than 5,000 deaths on the job each year, safety experts and some members of Congress have long argued that hundreds of lives could be saved if employers faced a credible threat of prosecution.

"A company official who willfully and recklessly violates federal OSHA laws stands a greater chance of winning a state lottery than being criminally charged," said a 1988 Congressional report.

Actually, it overstated the odds for much of the country. During the two decades examined by The Times, in 17 states, the District of Columbia and three territories, there was not a single prosecution for willful violations that killed 423 workers.

There have been repeated efforts to make it a felony to cause a worker's death. But strong opposition from Republicans and many Democrats doomed every effort. Congress did, however, agree in 1984 as part of a broader sentencing reform package to raise the maximum criminal fine to $500,000 from $10,000. And in 1991, it raised civil fines. But the added deterrent appears modest.

From 1982 until 1991, the median fine for a willful violation that killed a worker was $5,800, according to the Times examination. Since 1991, the median has been $30,240.

A much less publicized change has actually eroded any remaining potential for prosecution. Starting in 1990, with a death at a Nebraska meatpacking plant, OSHA began to accede to employer demands that it replace the word "willful" with "unclassified" in citations involving workplace deaths.

Unclassified was a term invented by lawyers who specialize in defending corporations against OSHA. Indeed, the word appears nowhere in the law or regulations governing OSHA. But the agency's field manual permits the "unclassified" designation when an employer is willing to correct unsafe conditions "but wishes to purge himself or herself of the adverse public perception attached to a willful" violation.

Mr. Woodward, the top OSHA solicitor, acknowledged that employers "might occasionally" push for unclassified violations to minimize criminal liability. But he defended the arrangement as a useful compromise.

Companies, he explained, "might do everything in the world that you wanted them to do as far as fixing the problem and making the workplace safer for the workers." But the big sticking point, he said, was "they didn't want to admit willful."

Major corporations, and their lawyers, have been increasingly successful in persuading the agency to eliminate the word "willful," The Times found. The agency has done this even for employers who have repeatedly shown a deliberate disregard for safety laws, resulting in multiple deaths.

The effects of the new policy have been felt by families in several small towns around the country where, over the last decade, refineries and petrochemical plants either owned or co-owned by Shell Oil have blown up because of safety violations.

Each town in turn was consumed by the disasters, the funerals and the cleanup. And every time, safety investigators would show up and dig in, filling thick files with the details of how management had disregarded known hazards. Often, the safety violations were exactly the same from plant to plant. And yet in each case, defense lawyers persuaded regulators to label the most flagrant violations unclassified.

In Belpre, Ohio, an explosion in 1994 killed three workers. OSHA called it a "runaway chemical reaction" and blamed poor training, inadequate maintenance, bad equipment and shoddy oversight.

Anacortes, Wash., a small town on Puget Sound, shook from the explosions the day before Thanksgiving 1998. Necessary maintenance had been put off, investigators found, and pledges of safety improvements had been neglected. Six men died.

Almost three years later, in Delaware City, a crew was working near a tank filled with spent sulfuric acid at the Motiva Refinery, a plant with a long history of leaks, injuries and deaths. Managers had issued the work order despite employees' warnings that the tank was severely corroded and overdue for maintenance, according to court records and OSHA documents. A welding torch ignited leaking vapors, and the explosion flung Jeffrey Davis, 50, into the tank. The acid consumed all but the steel shanks of his boots.

Then last year, a worker was killed at the Shell plant in Geismar, La. OSHA inspectors spent over 12,000 hours documenting a series of preventable safety violations.

In all, Shell and partners paid $4.3 million in OSHA fines for the 11 deaths, sums too small to make a meaningful dent in Shell's earnings. There was no admission of wrongdoing, no referral to prosecutors.

"When you are talking settlement, essentially the rules go away," said Robert C. Gombar, a lawyer for Shell in the Anacortes and Delaware City explosions. Mr. Gombar's firm, McDermott, Will & Emery in Washington, advertises on its Web site that it "pioneered" the use of unclassified violations to avoid "unnecessary complication presented by harmful labels." In the Shell cases, Mr. Gombar said, the company simply persuaded OSHA that it should not cite any willful violations. "They know we'll litigate and we'll win,'` he said.

In a written statement, Shell said that it was treated no differently from any other company and that its "highest priority" was employee safety.

That was not the accountability many of the 11 families had envisioned.

Dyna Fry had learned from the evening news that her husband, Woody, was among those killed in Anacortes. She became consumed with piecing together what happened. She said she yearned for a criminal trial so managers would be forced to "make eye contact with my family."

Other Shell widows and relatives felt the same way.

"We would have worked in McDonald's for the rest of our lives if it meant anyone would go to jail for this," said Nicole M. Granfors, whose father, Ronald J. Granfors, was killed in Anacortes.

In Delaware, the state's congressman and senators wrote to Mr. Henshaw this year and demanded that he account for "OSHA's inexplicable decision" to reduce the violations in Delaware City. OSHA's handling of the case, they wrote, had compounded "the emotional trauma for the family."

In response, OSHA's deputy administrator, R. Davis Layne, wrote that OSHA had simply "exercised its prosecutorial discretion" to settle a contested case. Families, he explained, are not consulted "regarding confidential litigation matters."

But if OSHA saw no potential for a criminal case, Delaware's attorney general, M. Jane Brady, did. In an interview, she recalled the stunned reaction of one Motiva lawyer when she announced her intention to seek charges: "You got to be kidding me."

This summer, Motiva pleaded no contest to criminally negligent homicide and assault, only the second such prosecution in state history. The company was ordered to pay $46,000 in fines, then the maximum under state law, and $250,000 more to a victims fund. Soon after, Delaware changed its law to allow far higher fines.

A Response by the States

Once the dominant regulator of workplace safety, the federal government is falling behind a growing number of states.

At least four states now require safety inspectors to notify prosecutors of deaths caused by safety violations. Eleven states have increased prison terms beyond the six-month federal maximum. In Michigan, California and Arizona, it is now not only a crime to commit safety violations that kill but also to commit safety violations that cause severe injuries.

Again this year, there is talk of toughening the federal law. Three months ago, in an evaluation of OSHA's handling of deaths among immigrant workers, the Labor Department's inspector general recommended that OSHA study the potential deterrent effect of making it a felony to commit willful violations that kill. In Congress, Senator Jon S. Corzine, a New Jersey Democrat, is proposing legislation to increase the maximum sentence to 10 years from six months.

Like past efforts, this one will meet fierce resistance.

"Obviously we're not going to support the expansion of criminal penalties," said Randel K. Johnson, vice president for labor issues at the United States Chamber of Commerce.

At OSHA, Mr. Henshaw recently ordered up some new metrics. After The Times sought comment about its analysis, he asked his agency to conduct its own. The results, his aides said, closely mirror those found by The Times.

They argued, however, that 151 cases could not have been referred to federal prosecutors because the willful violations were of the employer's "general duty" to provide a safe workplace, not of a specific safety standard. Federal law, they said, does not permit referral in such cases. They conceded, though, that such cases could be referred to state and local prosecutors.

Nevertheless, Mr. Henshaw made it clear that he saw no need to change either the law or OSHA's handling of these worst cases of death on the job.

"You have to remember," he said, "that our job is not to rack up the individual statistics that some people like to see. Our job is to correct the workplace."

Remy Gerstein and Robin Stein contributed additional reporting for this article. The data analysis was done by Tom Torok.

Copyright 2003 The New York Times Company

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