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Demeralda
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For all you "free market" enthusiasts out there, what do you propose as a solution to employers who don't care about employees? That's just the way the cookie crumbles?
May 27, 2008
Op-Ed Contributor
The Working Wounded
By DAVID M. UHLMANN
Ann Arbor, Mich.
ON a hot August morning in 1996, Scott Dominguez reported to work at Evergreen Resources, a small fertilizer manufacturing plant in his hometown, Soda Springs, Idaho. The workday began like any other, with gruff commands barked out by the owner of the company, Allan Elias, who was a Wharton graduate, a lawyer and one of the most notorious violators of environmental and worker-safety laws in the state.
Mr. Elias wanted his workers to clean out a 25,000-gallon tank that contained cyanide waste. He refused to test the air or the waste inside the tank. He ignored the pleas of his workers for safety equipment. When the workers complained of sore throats and difficulty breathing, Mr. Elias told them to finish the job or find work somewhere else.
Mr. Dominguez, a 20-year-old high school graduate, wanted to keep his job. Wearing just jeans and a T-shirt, he used a ladder to descend into the tank. Two hours later, covered in sludge and barely breathing, he was removed from the tank, a victim of cyanide poisoning at the hands of a ruthless employer who would blame his “stupid and lazy” employees for the incident.
Mr. Dominguez suffered severe and permanent brain damage. He now has the rigid body movement and stammering speech found in patients with Parkinson’s disease.
The Justice Department opened a criminal investigation of Evergreen Resources. I was one of the lead prosecutors on the case. We quickly discovered that we had a major problem.
Mr. Elias did not commit a crime under the Occupational Safety and Health Act, which is the primary federal worker-safety law in the United States. Why not? Because Mr. Dominguez did not die.
My colleagues and I were shocked to learn that an employer who breaks the nation’s worker-safety laws can be charged with a crime only if a worker dies. Even then, the crime is a lowly Class B misdemeanor, with a maximum sentence of six months in prison. (About 6,000 workers are killed on the job each year, many in cases where the deaths could have been prevented if their employers followed the law.) Employers who maim their workers face, at worst, a maximum civil penalty of $70,000 for each violation.
We ended up prosecuting Mr. Elias for environmental crimes, and he was sentenced to 17 years in prison. I later became chief of the Justice Department’s environmental crimes section, and we started an initiative — based on this case and others like it — to seek justice when workers were seriously injured or killed during environmental crimes. We prosecuted some of the largest companies in America. But in cases where no environmental crimes were committed, we often could not prosecute.
Employers rarely face criminal prosecution under the worker-safety laws. In the 38 years since Congress enacted the Occupational Safety and Health Act, only 68 criminal cases have been prosecuted, or less than two per year, with defendants serving a total of just 42 months in jail. During that same time, approximately 341,000 people have died at work, according to data compiled from the National Safety Council and the Bureau of Labor Statistics by the A.F.L.-C.I.O.
It is long past time for Congress to change the law. First, Congress should amend the Occupational Safety and Health Act to make it a crime for an employer to commit violations that cause serious injury to workers or that knowingly place workers at risk of death or serious injury. Whether good fortune intervenes and prevents harm to workers should not determine whether an employer commits a crime.
Congress should make it a felony to commit a criminal violation of the worker-safety laws, and the penalties for lawbreakers should be stiffened. The maximum sentence ought to be measured in years, not months.
Congress also should change the worker-safety laws so that ignorance of the law is no longer a defense. Employers have a duty to know their responsibilities under the Occupational Safety and Health Act.
Finally, Congress should make clear who can be prosecuted. Some courts have held that prosecution is limited to companies and their owners. Supervisors who order workers to break the law, as well as responsible corporate officers who fail to stop violations that they know are occurring, should also be held criminally responsible, just as they are under most other federal laws.
Most companies care about protecting their workers. But without a serious threat of criminal enforcement, more workers will be put at risk by companies that put profits before safety.
David M. Uhlmann is a law professor at the University of Michigan. |
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I'm no model lady. A model's just an imitation of the real thing. - Mae West |
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Tue May 27, 2008 12:29 pm |
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Adam
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I think this would be a good candidate for a lawsuit at the least. Individuals and businesses do not have the right to cause brain damage/murder. Only our current governemnt seems to be able to help cause harm to its citizens. Fortunately businesses and individuals unless sanctioned by the government do not have that right.
There is a difference between making a mistake and criminal wrongdoing. This appears to be criminal wrongdoing. |
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Tue May 27, 2008 1:20 pm |
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Dave Starr
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OSHA penalties are notoriously low. OSHA also needs to apply some common sense to a few of their rules.
When I was working, we had a steel roller - a machine with a set of very heavy rollers you fed a sheet of steel into, and rolled it into a curve. Ypu could roll a sheet of 1/8" thick steel into a tube if you wanted to. OSHA came in & said there had to be a switch on the machine to reverse the rollers in case someone got their hand caught in it. There was an emergency stop, but they wanted the reverse, too. So, we installed a 3" diameter button in a position where the operator could hit it with his knee & reverse the rollers if he got caught. OSHA looked at it and threatened to fine us unless the reversing button was moved to the back of the machine where the operator couldn't reach it! |
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I used to care, but I take a pill for that now.
Pushing buttons sure can be fun.
When a lion wants to go somewhere, he doesn’t worry about how many hyenas are in the way.
Paddle faster, I hear banjos. |
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Tue May 27, 2008 1:45 pm |
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Demeralda
F L I N T O I D
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One must wonder at this point what purpose OSHA serves?
I'm going to go look and see if it's crammed full of political appointees. Then I'm going to look and see how many cases have been prosecuted per presidency. |
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I'm no model lady. A model's just an imitation of the real thing. - Mae West |
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Tue May 27, 2008 2:10 pm |
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Adam
F L I N T O I D
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| OSHA is basically a governmental replacement for common sense that is an added cost to society. |
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Tue May 27, 2008 3:12 pm |
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Demeralda
F L I N T O I D
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| No Adam, OSHA is in response to something that should've been common sense -- i.e., not getting people killed for profit. |
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I'm no model lady. A model's just an imitation of the real thing. - Mae West |
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Tue May 27, 2008 3:55 pm |
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Public D
F L I N T O I D
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Tue May 27, 2008 11:04 pm |
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Adam Ford
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quote:
Demeralda schreef:
No Adam, OSHA is in response to something that should've been common sense -- i.e., not getting people killed for profit.
The liberal solution is OSHA. The conservative solution should have been lawsuits and/or prosecution. |
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Tue May 27, 2008 11:38 pm |
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