RICOSH News Alert (7/04)
More people spend time in jail for stock or pension fraud
than they do if they are flagrantly and criminally responsible
when workers are killed. Recently enacted Rhode Island legislation
(11-5-2.2(b)) expands the definition of criminal negligence
to make it a felony when serious bodily injury occurs as a
“proximate result” of negligence. Criminal negligence
is now defined under RI Statute, as “conduct which is
such a departure from what would be that of an ordinary prudent
or careful person in the same circumstance as to be incompatible
with a proper regard for human life or an indifference to
consequences.” And conduct by “any business entity”
is included.
Threat of criminal action as a deterrent to workplace injury
and death has been proposed in several venues-the latest is
a bill in the US Senate. RI statute would appear to include
workplaces in a new modification of criminal negligence.
It has been indeed rare when a workplace death or serious
injury is pursued as criminal. Many reasons can be cited for
this. Prosecutors usually defer to OSHA. (Many courts have
ruled this way.) While the federal OSH Act does provide for
a criminal penalty when a worker dies (due to willful violation
of a published OSHA rule) the crime is defined as a misdemeanor
and not a felony —even if several workers are killed.
A New York Times series on “What Happens When Workers
are killed?” explored how and when workplace deaths
are seen as criminal. Time’s reporters estimated that
over 1700 fatality cases warranted a criminal referral (covering
1982-2000). OSHA officially disputes this. Out of the 1700
total only 196 were ever referred by OSHA to either local
or federal prosecutors for criminal prosecution. Prosecutors
rejected 92 out of 196. (A recent trenching fatality in Woonsocket
RI has been referred by the local OSHA office to the RI Attorney
General.
There is an addition a reluctant within upper OSHA to pursue
these types of cases. According to the Times high OSHA officials
are extremely hesitant, even when field inspectors and regional
directors urge them on, to pursue criminal action. The USEPA,
for example, has over 200 criminal investigators and works
with thirty three environmental prosecutors in the Justice
Department. OSHA’s chief of enforcement had, according
to the Times, never met the one federal prosecutor in the
Justice department assigned to workplace safety violations.
It is noteworthy that another part of the US Labor Department
has weighed in and called for a more hard-hitting approach,
especially regarding the spiraling increases in deaths of
immigrant workers. The USDOL’s Office of Inspector General
recommended: “OSHA should examine the deterrent effect
of raising civil and criminal fines, increasing the criminal
charges … from a misdemeanor to a felony, expanding
Section 17(e) to cover employers whose willful violations
result in serious physical harm, and allowing prosecutors
to seek restitution for victims.” Currently these recommendation
are included in proposed legislation, the Protecting America’s
Workers Act S2371 has been introduce in the Senate
Going in a New Direction?
The just completed session of the RI General Assembly expanded
criminal negligence as direct response to the Station Fire
(where 100 died and scores seriously injured).
What would constitute a worksite interpretation of this statute?
An appropriate example might be two employers in North Carolina
who claimed a worker was wearing fall protection equipment
when he fell 150 feet to his death. But, OSHA’s investigators
found that the fall protection equipment had been purchased
after the fatal incident. This would fit a definition of criminal
negligence since it is neither prudent nor careful to purchase
safety equipment after a worker has plunged 150 feet to his
death.
Another companion RI bill has also expanded victim rights
(12.28.2) in pursing civil acts.
Though both acts are now on the books--as of June /04--it
is unclear how the courts will interpret them. Will the exemption
language in Workers Compensation statutes --although comp
law refers to liability in civil action-- collide?
Nonetheless, it would appear that local prosecutors have
new powerful tools to pursue criminal felony cases even in
the workplace.
————
The RI Committee on Occupational Safety and
Health {RICOSH} is a (non-profit) resource center for occupational
and environmental health and safety.
RI Committee on Occupational Safety &
Health
741 Westminster St. Prov RI 02903 (401) 751-2015/jobhealth@juno.com
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