This article first appeared in the July 2004 NYCOSH Safety Rep

Long prison sentences are supposed to deter crime.

However, the penalty for an employer who knowingly kills a worker by violating job safety laws is only six months in jail. Approximately twice a week in the U.S. an employer commits that crime, perhaps because prosecutions are rare and the penalty is so limited. In the last 20 years, fewer than three dozen criminal convictions have sent killer employers to jail.

Even though any willful violation that results in a death could give rise to a criminal prosecution, fewer than two percent of the fatalities caused by a willful violation have resulted in criminal prosecution. The rest are settled with a civil penalty of $70,000 or less -- much less in most cases. In contrast, harassing mule deer can be punished with up to five years in jail and a $250,000 fine.

In recent years, New York City has seen a rash of occupational fatalities that appear to have resulted from employers’ knowing violation of the law.

On Staten Island, a worker was killed by a cave-in while working in a unshored 15-foot deep trench. Federal law requires that trenches deeper than five feet must be shored. A worker in Queens died at the bottom of an unshored trench that was eight feet deep.

In Manhattan five workers were killed in the collapse of a scaffold that the employer knew to be illegal. In that case the employer was convicted on a state charge of second-degree manslaughter and sentenced to 3-1/2 to 10-1/2 years in prison. At the time of the sentencing the judge remarked on how insignificant the penalty would have been if the employer had been convicted on a federal charge, saying that the case had given her an education in how “astonishingly ineffectual” the federal government has been in protecting workers' lives.

In New York and all across the country there is a growing movement to stop corporate killing. In New York City, it has been taken up by the Central Labor Council, which recently adopted a resolution calling for prosecution of employers who recklessly hurt or kill employees. Among other things, the CLC has resolved to make the issue of such prosecutions a criterion for endorsement of district attorney candidates.

The extreme rarity of criminal prosecutions for preventable workplace fatalities and the relatively light penalties that can be imposed are the focus of a “Campaign to Stop Corporate Killing” by the National Network of Committees for Occupational Safety and Health, which seeks to promote safer workplaces by increasing the law’s deterrent effect on safety and health violators.

The campaign has three objectives: It backs federal legislation that will increase both the civil and criminal penalties for a willful violation that results in a fatality. It seeks to pressure OSHA to impose the maximum possible fine for willful fatalities and to greatly increase the number of willful fatality cases that OSHA refers to the Justice Department for criminal prosecution. It aims to encourage local law enforcement officials to increase the use of ordinary criminal sanctions to punish employers who negligently kill workers.

The first objective, to pass federal legislation that boosts civil and criminal penalties, is already on the congressional agenda in the form of two bills, the “Wrongful Death Accountability Act,” (S.1272/HR4270) sponsored by Senator Jon Corzine (D-NJ) and Representative Major Owens (D-NY), and the “Protecting America’s Workers Act,” (S2371) sponsored by Senator Edward Kennedy (D-MA). Both bills would increase the criminal penalties for a willful fatality to 10 years’ imprisonment and a $250,000 fine. The Kennedy bill would also increase the civil penalty for a willful fatality to $250,000. There is little chance of either bill becoming law as long as both houses of Congress and the White House are under Republican control, but their sponsors hope to develop a record of evidence and testimony that could lead eventually to their passage.

The campaign has also made progress by pressing OSHA to refer more cases for criminal prosecution. OSHA has acknowledged that one obstacle to making referrals is its staff’s lack of experience with criminal investigations. Accordingly, OSHA has announced a new program to teach a group of OSHA inspectors the criminal investigation techniques. “Currently our inspectors are trained to do only civil investigations. Criminal cases require much more evidence than our typical civil cases to document willfulness,” said Richard Fairfax, director of OSHA's enforcement program. “If trained properly, [OSHA inspectors] would not mishandle these investigations,” said Ron Hayes, founder of the FIGHT Project, an organization for family members of workers killed on the job.

The project’s third objective, encouraging local prosecutors to make greater use of their power to charge employers with manslaughter or assault when a worker is killed or seriously injured as a result of an employer’s recklessness, is being undertaken at the grassroots level by COSH groups and safety and health advocates in numerous locations, as exemplified by the Central Labor Council’s resolution.

Many groups are also making criminal prosecutions an issue whenever a potential case arises. NYCOSH and the Philadelphia Area Project on Occupational Safety and Health recently called for the prosecution of the contractors responsible for the death of four construction workers in the collapse of a building in Atlantic City, NJ. NYCOSH has contacted the Staten Island district attorney to advocate the prosecution of a contractor responsible for the death of a worker who was buried when an unsafe and illegal trench caved in.