OSHA is already beginning to feel the heat from a recent series of articles published in the New York Times (See "NY Times Articles Show Lack of Criminal Prosecutions for Worst OSHA Regulations Violators.") that revealed how seldom the agency seeks criminal prosecution of employers when workers die because of "willful" safety violations.
In his Dec. 22 letter, Lautenberg noted that according to the Times' article published that day, OSHA investigated 1,200 cases where workers were killed because of willful safety violations by an employer. In over 90 percent of these cases, however, OSHA did not seek criminal prosecution by referring the cases to the Department of Justice (DOJ).
"This is an astounding record of failure by the one federal agency charged with ensuring workplace safety," wrote Lautenberg. "OSHA's gross negligence to perform its most basic duties of holding companies accountable for their failure to protect their employees, in my opinion, rises to a level where a top-down review of agency policies is required."
An OSHA spokesperson said the agency is aware of Lautenberg's letter, as it is posted on his Web site, but OSHA has not officially received the letter and therefore had no comment on it at press time.
Lautenberg's legislation would require OSHA to provide within 60 days of the end of each month a review of the number of deaths and injuries reported, and all actions taken by OSHA to punish those companies that have placed these employees in danger. It is too early to determine whether Lautenberg's proposal has broad support on Capitol Hill.
The other Democratic senator from New Jersey, Sen. Jon Corzine, has already introduced a bill that would make it possible to charge employers with a felony when workers die because of willful safety violations. Currently, this crime is only a misdemeanor, one reason federal prosecutors may be reluctant to prosecute such cases.
According to the research performed by the New York Times, OSHA's failure to refer cases to DOJ is not the only reason employers rarely face criminal prosecution for willful violations that kill a worker.
Of the 196 cases OSHA did refer to DOJ, only 81 resulted in convictions, and only 16 of these led to jail sentences.
Lautenberg ends his letter with an expression of hope that Henshaw is "taking this as seriously as I am, and look forward to hearing from you in a timely manner on what you intend to do internally to address these problems."