Since 1982, more than 170,000 American workers have been killed on the job. Federal and state workplace safety regulators investigated fewer than a quarter of those deaths. But of those they did examine, they found 2,197 that were caused by "willful" safety violations, the most severe citation possible under the law, according to an analysis by the New York Times.
The 2,197 deaths were the result of 1,798 different incidents, more than two-thirds of which were investigated by the federal Occupational Safety and Health Administration. The rest were investigated by the 21 states and one territory that administer their own versions of OSHA.
Under federal law, it is a misdemeanor to cause a worker's death by willfully violating safety laws. Safety violations that kill workers may also be prosecuted under state manslaughter and reckless homicide statutes. The Times, however, found that such deaths hardly ever result in prosecution, conviction or jail time. The primary reason: With few exceptions, state and federal OSHA inspectors rarely refer cases to law enforcement authorities. . . .
(Click on the link titled "Interactive Feature: When Workers Die" at <http://www.nytimes.com/2003/12/22/national/22OSHA.html> or <http://www.nytimes.com/2003/12/21/national/21OSHA.html> for more information.) *****
***** WHEN WORKERS DIE U.S. Rarely Seeks Charges for Deaths in Workplace By DAVID BARSTOW
Published: December 22, 2003
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. . . .
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. . . .
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. . . .
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. . . .
<http://www.nytimes.com/2003/12/22/national/22OSHA.html> *****
David Barstow, "A Trench Caves In; a Young Worker Is Dead. Is It a Crime?," _New York Times_ 21 December 2003: <http://www.nytimes.com/2003/12/21/national/21OSHA.html>.
Cf. _A Dangerous Business_: <http://www.pbs.org/wgbh/pages/frontline/shows/workplace/>. -- Yoshie
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