Ensuring that Police and Prosecutors Prioritize Workplace Health and Safety
Aside from the legal hurdles and inadequate penalties that make it difficult to hold employers criminally responsible for OHS incidents, states lack the infrastructure to ensure that such cases are properly pursued. Workplace tragedies typically fall through the cracks of a criminal justice system focused on gun and drug crimes. At an institutional level, prosecutors and law enforcement generally lack both the training and the incentive to identify evidence that could suggest criminal wrongdoing by an employer. Too often, they view these worker fatalities and serious injuries as blameless “accidents” to be investigated by the OHS agency, rather than the crimes they are.
Incident investigations by OHS agency inspectors typically lack the rigor and quality of a criminal investigation conducted by police and prosecutors, in terms of gathering evidence and interviewing witnesses. Also, OHS agency investigations tend to focus too narrowly on finding technical violations of regulatory standards, instead of examining the root causes of the incidents. When a criminal charge may be appropriate, the state OHS agency can refer a case to a local prosecutor (or, in Fed-OSHA’s case, to the Department of Justice). But referrals are rare because of the perceived difficulty of building a winning case and a lack of institutional motivation to try.
What's the Solution?
Criminal investigation and prosecution should be a regular component of state and local responses to workplace incidents and serious violations. But that will require states to institutionalize the structures and procedures necessary to pursue workplace fatality and serious injury cases.
In states that oversee their own OHS program under a plan approved by federal OSHA (state-plan states), state law should require OHS agency inspectors to immediately notify local prosecutors whenever they learn of a workplace fatality or serious injury. The OHS agency should devise a clear set of rules for deciding which violations to refer for possible prosecution.
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
A more ambitious structural reform, in either federal OSHA or state-plan states, would be to establish an OHS section within the state or local prosecutor’s office, similar to the “environmental crimes” sections found in many jurisdictions. The OHS section should be responsible for training law enforcement officials on how to investigate workplace incidents. Ideally, a deputy district attorney and an investigator from the office should be on call 24 hours a day to respond to workplace fatalities and injuries and coordinate with law enforcement on the scene to collect all evidence that might help in building a criminal case.
Because most prosecutors are likely to be found in major cities, advocates may wish to campaign for an “OHS circuit prosecutor” program where the state would provide funding for a small team of roaming prosecutors to help crack down on workplace incidents and violations in rural areas.
Advocates can work with local lawmakers to require police departments to investigate all workplace fatalities as potential cases of manslaughter or reckless homicide, and in each case provide a written report to the OHS agency explaining whether such charges are appropriate.
Political Challenges to Prosecuting Workplace Crimes. If a company responsible for a fatality is a significant contributor to local political campaigns and/or one of the area’s major employers, prosecutors may face intense pressure from superiors to drop a case. For a particularly shocking example, read this PBS Frontline accounting of the politics involved in trying to charge McWane Corporation for deaths caused in its plants.
Models for Mandatory Notification Laws. Advocates in state-plan states who are campaigning for a state law that requires the state OHS agency to notify local prosecutors of all worker fatalities should look at California’s state plan, which is one of only a few states with such a requirement.
Circuit Prosecutor Program. In 2001, California initiated a Circuit Prosecutor Project to help pursue criminal charges for workplace deaths in rural areas. The project faced intense resistance from judges and communities and was ultimately terminated. A separate circuit project for environmental crimes is still in operation and would serve as a useful model for worker safety advocates.