Treating Egregious Workplace Deaths and Injuries Like the Crimes They Are
Violations of occupational health and safety standards almost never lead to criminal charges, even though many cases exhibit the basic characteristics that, in any other setting, would be considered criminal acts. Drivers who run down a child while driving drunk can count on being prosecuted. The consequences should be no less severe when a boss sends a worker to the end of a rooftop without a harness. Fatal falls and many other workplace deaths are no different from the cases of reckless homicide and involuntary manslaughter that fill local courts’ dockets—the only distinction is that they occur on the job. Yet prosecutors seldom pursue criminal penalties for OHS misconduct.
In states within federal OSHA’s jurisdiction, and in most states that oversee their own OHS programs (state-plan states), prosecutors may only file criminal charges for violations of the OHS standards classified as “willful,” and only in cases in which the willful violation led to a worker’s death. Moreover, the maximum prison term that can be imposed for a conviction is six months for a first conviction, or one year for additional convictions. In addition, in Fed-OSHA states, the maximum fine is $250,000 for individuals and $500,000 for corporations (or double for repeat convictions); most state-plan states still reflect the original limits set in 1970 at $10,000 for a first conviction and $20,000 for subsequent ones.
The existing framework of criminal law also makes it difficult to prosecute an employer under a state’s criminal code. When a worker dies on the job, the corporation, along with responsible corporate officers, may be liable for manslaughter. However, in some states, courts are still hesitant to apply manslaughter statutes to corporations. More importantly, restrictive ideas of legal causation may prevent courts from finding the necessary link between the corporation’s misconduct and the sequence of events that directly resulted in the death. As a result, corporate prosecutions tend to be skewed toward small businesses, where chains of authority are easier to identify.
What’s the Solution?
Expand the Scope of Criminal Liability and Set Steeper Penalties: State legislatures in state-plan states should update their OHS laws to strengthen criminal sanctions in three ways. First, criminal penalties should be available not just for willful violations in fatality cases, but also for knowing and negligent violations with the potential to cause death or serious injury. Second, the strongest criminal penalties should be available when a violation causes death or serious bodily harm. Third, the maximum prison terms and criminal fines available should be substantially increased to better deter bad actors and send prosecutors the message that these cases are worth pursuing.
Corporate Manslaughter Laws: State legislators in every state could establish a corporate manslaughter law, which would make it easier to hold corporations criminally liable for worker fatalities. An effective proposal should impose liability whenever a corporation knowingly, recklessly, or negligently causes a death through the conditions that it creates or tolerates; should permit consideration of a broad range of evidence; and should authorize not only heavy fines, but also a set of flexible probationary orders that could be tailored to address fundamental deficiencies in the corporation’s management.
Frances Schreiberg, Of Counsel, Kazan Law, Oakland, California
Rena Steinzor, Law Professor, University of Maryland Carey School of Law
Ron Wright, Yancy Gulley Professor of Criminal Law, Wake Forest University School of Law
Additional Resources for Workers and Advocates
Crimes Against Workers Database. Workers are too often victimized by employers that choose to violate labor laws, whether ignoring basic safety protections or refusing to pay wages owed. Often, rather than treating these violations of the law as subjects for criminal investigation, prosecutors simply defer to regulatory agencies like the Department of Labor and OSHA or comparable state agencies, thus significantly reducing the scope of possible penalties. As a result, many workplace injuries, deaths, and wage thefts resulting from illegal conditions are punished with fines, and light fines at that, letting violators off too easily and eliminating the deterrent effect that might prevent future incidents. Some prosecutors have recognized the need to treat such incidents as the crimes they are, prosecuting employers who've broken the law. CPR's first-of-its-kind Crimes Against Workers database catalogs state criminal cases and grassroots advocacy campaigns against employers responsible for injuring and killing workers, as well as for stealing their wages. It provides a one-stop shop for finding case files, media clips, and advocacy resources related to state criminal enforcement against companies and individuals in cases of serious worker injuries, deaths, endangerment, and wage theft.
Corporate Criminal Liability. Read more about the benefits of corporate criminal liability and the method for imposing liability based on the actions of corporate agents in Corporate Culpability (1998) by C.M.V. Clarkson. For more on legal constraints and barriers to corporate criminal liability, and to see a model corporate manslaughter statute criminal statute, read Corporate Criminal Liability for Homicide: A Statutory Framework by James Harlow. Advocates may also want to read Still Dying for a Living (2012) (full publication unavailable online) by Steven Bittle, on the social, political, and economic constraints that can undermine the making of corporate criminal law as happened when Canada amended its Criminal Code in the wake of the Westray Mine disaster.
Model Laws with Enhanced Criminal Penalties for OHS Violations. Advocates in state-plan states who are campaigning for stronger criminal penalties in their state’s OHS plan should consider statutory language in the Protecting America’s Workers Act (PAWA) as well as the available criminal fines for various federal offenses. Advocates may also look to the states with strong penalties for useful statutory models. California’s Labor Code has the broadest framework for criminal penalties. Other noteworthy state plans to look at include Arizona, Minnesota, Puerto Rico, and Michigan. In addition, a bill introduced in Indiana in 2006 is also a potential model, although it has some weaknesses that should be improved.
Models State Corporate Manslaughter Statutes. In the states, advocates should review statutory language proposed in Indiana that would have authorized charges of corporate manslaughter against organizations for reckless, knowing, and intentional violations of workplace OHS rules. However, the bill did not allow for new kinds of evidence or provide new forms of corporate punishment.