During the hearing, held by the Senate Health, Education, Labor and Pensions Committee, Sens. Edward Kennedy, D-Mass., and Patty Murray, D-Wash., called for Congress to strengthen current workplace safety laws, strengthen provisions for higher penalties and criminal prosecution and insist on stronger OSHA enforcement.
The Occupational Safety and Health Act, created 37 years ago and signed into law by President Richard Nixon, successfully helped reduce workplace accidents and fatalities. Legislators and labor leaders argue that in recent years, however, OSHA has exercised lax oversight, causing workplace safety to suffer.
Republican Senator Mike Enzi from Wyoming remained unconvinced that stronger criminal penalties and fines were the answer. He stated that it was more important for Congress to focus on preventing injuries from occurring in the first place rather than creating punishments for deaths and injuries after the fact.
“Penalties are part of the equation, but just like the death penalty cannot deter every crime, so too, is their utility limited,” Enzi said.
Kennedy Report Reveals New Findings
Kennedy, the committee's chairman, released Discounting Death: OSHA's Failure to Punish Safety Violations that Kill Workers, a report analyzing OSHA penalties in fatality cases. The report focused on monetary penalties, criminal sanctions and the impact on the workers' families.
According to Kennedy’s report, the maximum civil penalty for a safety violation is $70,000. This amount is in stark contrast to penalties issued by the Department of Commerce, for example, which is authorized to impose a $325,000 penalty for a violation of the South Pacific Tuna Act.
“If you improperly import an exotic bird, you can go to jail for two years. If you deal in counterfeit money, you're looking a 20 years,” Kennedy pointed out. “But if you gamble with the lives of your employees and one of them is killed, you risk only 6 months in jail.”
In addition, Kennedy's report found that OSHA consistently reduces penalties imposed on employers in fatality cases by almost 40 percent. OSHA officials, Kennedy added, routinely downgrade the severity of the violations or withdraw the violations entirely in the course of investigations.
Furthermore, the report also found that over $27.5 million in penalties involving the deaths of more than 600 workers since 2004 remains unpaid.
“If we're serious about improving workplace safety, we need to raise penalties and create a serious threat of criminal prosecution in the worst case,” Kennedy noted.
Defining a Crime
David Uhlmann, a director of the environmental law and policy program at the University of Michigan Law School who worked as a prosecutor at the Department of Justice, agreed that the current criminal provisions of worker safety laws are not adequate.
Uhlmann described a case he worked on that demonstrated “the shortcomings of the current laws” and the need for greater enforcement by OSHA. The company, Evergreen Resources, already had history of workplace safety and environmental violations when company owner Allan Elias allegedly sent his workers into a tank of cyanide waste without safety equipment. One of the workers, 20-year-old Scott Dominguez, suffered severe and permanent brain damage as a result.
According to Uhlmann, Elias lied about the contents in tank to emergency responders and doctors treating Dominguez. He allegedly also lied to OSHA about having a confined space entry permit, which was doctored based on instructions from a safety manual he obtained from another company. Elias was charged with three felony counts under environmental laws, as well as one felony county for submitting a fabricated confined space entry permit to OSHA. Although Elias was sentenced to 17 years in prison, Uhlmann noted that under OSH Act, Elias didn't commit a worker safety crime because Dominguez did not die.
“There is something wrong with the law when sending a worker into a tank of cyanide waste, ruining a young man's life, is not a crime under the worker safety laws and is a crime under the environmental laws,” Uhlmann said.
New Law Might Be the Answer
The April 29 hearing took place one day after Workers' Memorial Day, a day that pays tribute to those who perished on the job and that coincides with the 1971 founding of OSHA. In anticipation of the day, the AFL-CIO released a report on April 26 that highlights the increase in worker deaths from 2005 to 2006 and the inefficiencies of the OSH Act.
Peg Seminario, AFL-CIO's director of safety and health, who also testified at the hearing, noted that since the passage of the OSH Act, only 68 cases have been prosecuted, with defendants serving a total of 42 months in jail. These cases were pulled from a total 341,000 workplace fatalities, according to data from the National Safety Council and Bureau of Labor Statistics.
Protecting America's Workers Act, new legislation sponsored by Kennedy and almost two dozen other Democrats, aims to strengthen punishments for employer misconduct, including the possibility of felony charges if willful negligence is suspected. Seminario emphasized the bill “would improve the foundation for worker's jobs safety protections.”
“The [Act] is a good, sound bill that should be enacted into law,” Seminario said.
No OSHA officials were invited to testify at the hearing, but in a statement issued afterwards, OSHA Administrator Edwin Foulke Jr. said that "election-year political theater cannot mask the truth that under this administration, workplace illness, injury and fatality rates are the lowest in OSHA's history."
Fathers of Deceased Workers Testify
Also at the hearing were two fathers who lost their sons in the line of work. Donald Coit Smith, a division safety manager for a polyurethane manufacturer, was still emotionally shaken when talking about his son, who was electrocuted in a meatpacking facility in Texas in 2005, and of the difficulties he had dealing with OSHA.
“You know I've dealt with OSHA from the employer standpoint, but let me tell you that dealing with them from a parent's standpoint is dreadful,” Smith said, adding that son's employer only paid $12,000 out of the combined penalty of $31,000 after lawyers for OSHA and the company negotiated the citations.
“I can kick a mule in a park in this country, and I can go to jail, but a small business can kill 9 out of 10 employees and still get a 70 percent discounts on penalties. That's wrong,” said Ron Hayes, now a safety activist whose 19-year old son died in a silo accident in 1993.
Claiming that it was frustrating to pry information from OSHA following his son's death, Hayes recommended having an ombudsman to represent and help companies, instituting a fatality investigating team and setting a special budget for prosecuting “bad actors.”
He also urged the agency to increase the penalty structure in order to send “a clear message of the importance of human life and limb.”
“In 1970, when OSH Act was enacted, the fines were OK. You could buy crystal for 10 cents,” Hayes said. “But we're in a different age now. We need a felony charge and we need stiffer and stronger penalties.”