When a Workplace Tragedy is Also a Crime

  • Construction workers in New York City working 11 stories above ground, but without required fall protection. (Photo by Charles Evans Jr.)

    Construction workers in New York City working 11 stories above ground, but without required fall protection. (Photo by Charles Evans Jr.)

    When we hear about shootings, bank robberies, or home invasions, we expect the perpetrators to be arrested, tried, and punished appropriately if they are found guilty. When a drunk driver kills an innocent bystander, we treat that death as a criminal act punishable with fines and jail time.

    When an employer ignores workplace safety and causes a worker to be seriously injured or killed on the job, it is just as criminal, yet arrests and prosecutions are rare. Why does our justice system so often shield businesses, CEOs, and other executives from criminal charges when they gamble with workers’ lives?

    The central goals of the criminal law are punishment, deterrence, and upholding the core values of the community. Prosecutors’ responses to criminal behavior by managers in the workplace are so weak as to sideline all of these goals.

    Versions of this commentary also published by:
    The Sacramento Bee
    Business Ethics

    With rare exceptions, police and prosecutors treat workplace deaths and injuries as “accidents” that are unforeseeable and therefore not preventable. In too many cases, workers die, not just because they are unlucky, but because the workplace itself is made dangerous by the absence of rudimentary safety precautions.

    When a worker dies because a trench collapses, and it turns out that managers sacrificed precautions to get the job done faster, that’s a crime. When managers operate factories with equipment that does not have an accessible, emergency shut-off switch, as required by federal rules for decades, and an employee loses a limb, a manager should be indicted. But prosecutions for such blatantly reckless behavior are so rare that too many companies think they can save money by cutting corners on worker health and safety, and they view the potential cost of injuries and the small fines involved as a cost of doing business.

    Rena Steinzor, University of Maryland law professor and member scholar of the Center for Progressive Reform, a Washington, D.C.-based nonprofit.

    Rena Steinzor

    Just consider the wrongdoing that led to the August 2012 death of Lawrence Daquan “Day” Davis, a 21 year-old on his first day of work as a temp worker at a Bacardi bottling facility in Jacksonville, Florida. He started his day filling out the usual forms for new hires and watching a very brief safety video. Ignoring legal requirements to provide Davis (and other workers) with comprehensive safety training, Bacardi put Davis to work within 15 minutes of his arrival. So when a machine malfunctioned and caused several glass bottles to break, no safety measures were taken to prevent workers from being injured during the cleanup and repair. Davis was one of the workers asked to help with the cleanup. Tragically, while he was underneath the machine picking up broken glass, it was turned back on, and he was crushed to death. Yet the only punishment that Bacardi received in Davis’ case was a $110,000 fine from the Occupational Safety and Health Administration (OSHA). The staffing agency who employed Davis, Remedy Intelligent Staffing, received no citation at all. Neither OSHA nor the state attorney’s office brought criminal charges against either company or their executives.

    Davis’ story is all too common. On average, more than 4,600 workers a year are killed on the job across the nation. Like Davis, these workers are much more than just an alarming statistic—they are parents, siblings, neighbors, and friends who are just trying to make a fair day’s pay, provide for their families, and maybe even one day live out the American dream.

    Work-related injuries and deaths are not just “tragic accidents.” They’re tragic, to be sure. But calling them “accidents” misses an important point: Often, they don’t occur by chance or happenstance. Rather, all too frequently, they result from unacceptably risky business decisions that put profits over people. In other words, they happen when someone higher up on the company ladder rolls the dice and they lose.

    Katherine Weatherford, policy analyst at the Center for Progressive Reform

    Katherine Tracy

    Not all injuries and deaths on the job should result in criminal charges. But instead of continuing to unjustifiably shield businesses and executives from criminal liability, every serious on-the-job injury and fatality should be treated as a potential crime and examined carefully. Police and prosecutors should investigate promptly and thoroughly, in coordination with occupational safety and health officials.

    Fortunately, several workers’ centers and other workers’ rights groups are already leading efforts to enhance criminal prosecutions in worker injury and death cases by urging local and state prosecutors to file charges under their states’ criminal laws, such as manslaughter and assault and battery. Our organization, the Center for Progressive Reform has also just released a new manual building on the pioneering work of these advocacy efforts and providing a roadmap for workers’ rights organizations across the country to reach out to local prosecutors, law enforcement, and regulators about investigating workplace incidents as potential crimes.

    Last month, West Virginia coal baron Don Blankenship was sentenced to a year in jail for charges growing out of the outrageous safety shortcuts that contributed to a mine collapse that killed 29 miners in 2010. He’s one of the first CEOs to go to jail for such behavior. But he’s hardly the only one who has earned it. As the threat of spending time behind bars grows, business executives will have to think twice before gambling with workers’ lives. It’s far past time that they did.

    Rena Steinzor is a University of Maryland law professor and a Member Scholar of the Center for Progressive Reform (CPR), a nonprofit group based in Washington, D.C. Katherine Tracy is a policy analyst at CPR. They are among the co-authors of Preventing Death and Injury on the Job: The Criminal Justice Alternative in State Law.

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6 comments to “When a Workplace Tragedy is Also a Crime”

  1. Dina Padilla

    As long as employers are not held accountable by law enforcement, employees will get hurt with complete disregard. After all, harming workers or creating the circumstances for them dying on the job increases profit for the employer. This is what workers comp is all about for with those who are employed in or by the workers compensation system. Why correct a system that feeds so many other than injured or dead workers?
    OSHA is worthless when it has to make any argument to not prosecute or fine an employer that has multiple complaints Certainly trying to get OSHA to take a complaint is another story. Trying to get county DA’s to do their job is a total waste of time because it is the employers who pay them, They are not going to bite the hand that feeds them. I would also mention that this is a huge conflict of interest but who actually cares about morals & principles anymore in the corporate world or in law enforcement or that matter, in our own government.
    Yes, corporations do run the country and corporations own Congress, one of the biggest waste’s of government spending. Corporations have increased their profit on injured & dead workers but again, who cares enough to do anything about it?
    Employers will keep on doing what they do, profiting off of injured and dead workers until our legislators get a conscience rather than a stuffed wallet fro employers and do what is best for our workers.

  2. Steven K.

    Too much priority and concessions are provided to the businesses whose incentive is profit. But, contracts are not decided on the cost alone. Contracts promise management and safety processes are in place, functioning, and monitor

    More emphasis is needed that all contractual obligations continue to be met and not divert all attention the “bottom-line” which is usually not given as a priority for award. Management creates the environment and culture and outcomes are 85-99% (Deming) dependent on management decisions, not the worker.

  3. RGS, CSP

    Unfortunately, an agenda is more important than facts to these authors. Per the BLS News Release linked in the article:

    – Of the 4,585 fatal occupational injuries in 2014, 1,891 (40%) of them were due to transportation incidents, not in factories or other physical work places under the observationa and direction of a supervisor. 57% of the transporation incidents were roadway incidents, but another 17% (313) were pedestrians.
    – Included in the overall number is 749 (17%) workplace homicides and suicides.
    – Approximately 23% (1,047) of the fatalities were self-employed workers. (Who supervises them?)

    As a career Occupational Safety & Health professional, I take offense when a collegiate attorney and an academic analyst try to paint every fatal injury as the result of some supervisor, manager or executive’s egregious action. Are there those cases? Certainly. Are they as common as the writers would like us to believe after reading this? No.

    In addition, local prosecutors, like all organizations, have limited resources to allocate. There must be evidence “beyond a reasonable doubt” that the accused actions were (1) knowing and (2) negligent to proceed with any criminal case. Add to this that just because Fed. OSHA or a State Plan alledges a willfull violation in it’s citation, doesn’t mean that the allegation holds up in court or during settlement negotiations. And without a sustained willfull violation of the OSH Act, how does a local prosecuter proceed?

    Finally, no incident in the workplace is the result of a single action or precursor. They are almost always the result of multiple factors coming together in the wrong way at the wrong time. Today’s first aid case could be tomorrow’s fatality. Those of us who work daily in the OHS field understand this and constantly work to keep it in everyones mind.

  4. Brad

    Personal safety device that could save many lives. www.http://redfoxenterprises.com

  5. Kevin

    Beyond this commentary, who will hold OSHA and state attorneys accountable?
    Who are the criminals?

  6. Marcia Peters

    Important article! I wonder if the workers compensation system, mandated no-fault, bears any relationship to this problem. The injured workers or dead workers’ estates cannot sue. You’d hope that would make them push even more for criminal prosecution, but maybe not, maybe they just disengage. Of course the real problem is just that corporations run the country and the legal system.

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