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Published: December, 2006; Vol 3, Num 7

Stronger OSH Enforcement Proposed by Kennedy, Advanced in Michigan

The issue of how to enhance efforts to enforce worksite safety standards was taken up in two venues last month – in the U.S. Senate and in the Michigan Court of Appeals.

Responding to demands for stepped up enforcement to counteract dangerous conditions at the nation’s worksites, Senator Edward Kennedy (D – MA) – incoming chair of the Senate Health, Education, Labor and Pensions Committee – announced last month that he will introduce legislation to reform the Occupational Safety and Health Administration (OSHA) when he takes office in January.

Among the reforms he said he would pursue are (1) extension of OSHA protections to federal and state employees (many Laborers are government employees); (2) application of “meaningful penalties” against employers whose willful violation of standards results in workers’ deaths or serious injuries; (3) protection of safety “whistleblowers” and the public’s right to know about employer safety violations; and (4) clarification of employer obligations to provide personal protective equipment (PPE) and other safety protections to workers.

Kennedy chaired the same committee when the Democrats last controlled the Senate, and he introduced legislation at that time that sought to strengthen OSHA’s standards-setting and enforcement authority, both of which have waned under Republican domination of Congress.

LIUNA General President Terence M. O’Sullivan welcomed Kennedy’s initiative. “In recent years under the Bush Administration, OSHA has stepped back from its responsibility to enforce its own safety regulations,” he said. “With lagging enforcement, we’re drifting back toward the days when unscrupulous contractors cut corners on safety, taking advantage of the situation to maximize profits at the expense of responsible competitors. OSHA enforcement is absolutely necessary, not only to ensure safety for the workforce, but also to maintain a level playing field in the industry.”

One key issue in enforcement is criminal liability. Because under OSHA even a willful violation that results in the death of a worker can be prosecuted only as a misdemeanor, federal prosecutors are reluctant to pursue criminal cases. Despite more than 200,000 on-the-job deaths in the U.S. since OSHA was created in 1972, only 151 were referred to the Justice Department for prosecution. Of these, only eight company officials received jail time. The longest sentence was six months.

Because the federal government has been so reluctant to pursue criminal prosecutions, some state officials have stepped into the gap (see States Pursuing Prosecutions against Corporations, Directors). Last month in Michigan – in a decision that attracted national attention because the original prosecutor was running for re-election as the state’s governor (she won) – one of these state convictions was upheld on appeal.

In 1999, a Lanzo Construction Company worker was killed in a trench collapse after the company foreman ignored workers’ request to stop excavation work due to sporadic rain. Despite Michigan OSHA (MIOSHA) regulations, the 15-foot deep trench was not shored, and a trench box on the site was not in use. At its trial, the company asserted that it could not be held criminally liable for the actions of its employees. The company was acquitted on an involuntary manslaughter charge but given a $10,000 fine and two years’ probation for willful violation of the MIOSHA regulation.

The Michigan Court of Appeals upheld the decision of the trial court, saying that the Lanzo foreman and its superintendent were “high management officials” who had “supervisory responsibility over the subject matter of the offense” and acted “within the scope of [their] employment in behalf of the corporation.”

The foreman, the court determined, was a “qualified person” under MIOSHA and was responsible for work site safety and could decide whether extra precautions were required. The superintendent, also a “qualified person,” was culpable because his responsibilities included employee safety. It was the superintendent who acknowledged that, though the failure to shore the trench violated MIOSHA regulations, he believed it was safe for employees to work in it for a short period of time. He also acknowledged that he had failed to provide trench safety training to the crew, relying instead on their experience as pipe layers.

As for the meaning of “willful,” the other issue on appeal, the court said it “requires only that a defendant either intentionally disregard a requirement of MIOSHA or be knowingly or purposely indifferent to a requirement of MIOSHA.” The evidence of disregard was the lack of required trench protection and the failure to shut down operations despite workers’ complaints that the rain had increased the danger.

The decision in Michigan – along with similar cases in Arizona – may bolster Kennedy’s case when he introduces his legislation in January. In some quarters, at least, concern about willful disregard of workplace safety regulations seems to be mounting. Nevertheless, it remains uncertain whether Kennedy’s bill will be adopted by the full Senate and the House, much less signed by the President.