Workers killed by willfully negligent employers; OSHA doesn't give a damn

How have I managed not to notice Confined Space, a blog dedicated to worker safety issues? This is a blog that deserves a lot more attention.

Today he’s focusing on two Times articles, both of which are worth reading. The first describes in detail the case of Patrick Walters, a young man who was killed when the trench he was working in collapsed, burying him alive. Virtually none of the safetly laws for trench workers had been followed by his employer.

What makes this case so notable is that this happened only two weeks after OSHA warned Walters’ employer that its trenches were unsafe. And, in fact, this is the second time this employer (Moeves Plumbing, of Cincinnati, Ohio) had killed an employee by neglecting trench safety.

So did OSHA bring criminal charges against the employer? Of course not. Instead, they worked out a deal with the employer to lower their fine and make sure that no nasty charges of “willful neglect” would be put on the employer’s record. Anyhow, under current federal law, killing an employee through willful negligence is only a misdemeanor, carrying a maximum penalty of six months in jail.

The first article examined one tragic death in detail. The second article takes a statistical approach.

Over a span of two decades, from 1982 to 2002, OSHA investigated 1,242 of these horror stories — instances in which the agency itself concluded that workers had died because of their employer’s “willful” safety violations. Yet in 93 percent of those cases, OSHA declined to seek prosecution, an eight-month examination of workplace deaths by The New York Times has found.

What is more, having avoided prosecution once, at least 70 employers willfully violated safety laws again, resulting in scores of additional deaths. Even these repeat violators were rarely prosecuted.

OSHA’s reluctance to seek prosecution, The Times found, persisted even when employers had been cited before for the very same safety violation. It persisted even when the violations caused multiple deaths, or when the victims were teenagers. And it persisted even where reviews by administrative judges found abundant proof of willful wrongdoing.

Behind that reluctance, current and former OSHA officials say, is a bureaucracy that works at every level to thwart criminal referrals. They described a bureaucracy that fails to reward, and sometimes penalizes, those who push too hard for prosecution, where aggressive enforcement is suffocated by endless layers of review, where victims’ families are frozen out but companies adeptly work the rules in their favor. […]

The Times’s examination — based on a computer analysis of two decades of OSHA inspection data, as well as hundreds of interviews and thousands of government records — is the first systematic accounting of how this nation confronts employers who kill workers by deliberately violating workplace safety laws. It identified a total of 2,197 deaths, at companies large and small, from international corporations like Shell Oil to family-owned plumbing and painting contractors in quiet corners of America.

On the broadest level, it revealed the degree to which companies whose willful acts kill workers face lighter sanctions than those who deliberately break environmental or financial laws.

For those 2,197 deaths, employers faced $106 million in civil OSHA fines and jail sentences totaling less than 30 years, The Times found. Twenty of those years were from one case, a chicken-plant fire in North Carolina that killed 25 workers in 1991.

By contrast, one company, WorldCom, recently paid $750 million in civil fines for misleading investors. The Environmental Protection Agency, in 2001 alone, obtained prison sentences totaling 256 years. […]

When Congress established OSHA in 1970, it made it a misdemeanor to cause the death of a worker by willfully violating safety laws. The maximum sentence, six months in jail, is half the maximum for harassing a wild burro on federal lands.

With more than 5,000 deaths on the job each year, safety experts and some members of Congress have long argued that hundreds of lives could be saved if employers faced a credible threat of prosecution.

“A company official who willfully and recklessly violates federal OSHA laws stands a greater chance of winning a state lottery than being criminally charged,” said a 1988 Congressional report.

Actually, it overstated the odds for much of the country. During the two decades examined by The Times, in 17 states, the District of Columbia and three territories, there was not a single prosecution for willful violations that killed 423 workers.

There have been repeated efforts to make it a felony to cause a worker’s death. But strong opposition from Republicans and many Democrats doomed every effort. Congress did, however, agree in 1984 as part of a broader sentencing reform package to raise the maximum criminal fine to $500,000 from $10,000. And in 1991, it raised civil fines. But the added deterrent appears modest.

From 1982 until 1991, the median fine for a willful violation that killed a worker was $5,800, according to the Times examination. Since 1991, the median has been $30,240.

Both articles are well worth reading – as are many of the other posts on Confined Spaces.

From a feminist point of view, worker deaths is an unusual issue because the victims are overwhelmingly male. Patrick Walters, the young man who died in a trench collapse, knew that his work was dangerous – but he was determined to become a good wage earner to support his children. Worker deaths are a case in which the typical victim is a man who has been screwed over by gender roles.

So should feminists be calling for an equal number of female deaths? Well, in a sense, yes – there’s no reason that anyone’s sex should determine how likely they are to die on the job. But the real solution is to reduce men’s (and women’s) chance of dying on the job by giving OSHA some teeth and to unionize, unionize, unionize. Most workplace deaths aren’t inevitable; they’re the result of bad work conditions and insufficient safety precautions. Neither men or women should face deadly work conditions.

And, of course, the masculine ideal that calls for men to “be a man” by climbing down into unsafe trenches has to be done away with.

Finally, we can’t ignore the impact of class on all this. You can damn well bet that no one in the Bush family (or the Gore family) has ever felt obliged to risk their lives climbing into a fifteen-foot trench.

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22 Responses to Workers killed by willfully negligent employers; OSHA doesn't give a damn

  1. 1
    Jordan Barab says:

    Women account for 46% of the working population but only 8% of fatalities, chiefly because they don’t work in many of the hazardous blue collar occupations that kill so many men. 31% of female fatalities are due to workplace violence (as opposed to only 9% for men). Some of these women are murded in the workplace by spouses or boyfriends, others due to robberies in late night retail or violence in health care institutions.

    By the way, Patrick Walters was not trying to be a macho man, nor was he just trying to support his family. He knew the job was dangerous and he was terrified of dying in a trench collapse. But he was more terrified to lose the first good job he had ever had and the one hope he had to lift himself out of a life that hadn’t been going so well. That’s not to say there’s not a lot of macho stuff that goes on in workplaces, but in most cases (and in this case) there’s a legitimate need to have and keep a good job — and hope that your luck holds out, because luck is about the only thing keeping a lot of workers alive today. As you say, the ultimate answer is a good, strong union.

  2. 2
    Ampersand says:

    Thanks for the comments and the statistics, Jordon. As well as for your terrific blog.

    I wasn’t criticizing Patrick Walters – but I think I was accurate to say that he felt pressured to seek a high-paying job because of his need to be a good male-provider type. At least, that’s the impression the Times article gave me in passages like this:

    Small and family owned, about 50 employees, Moeves (pronounced MAY-vis) had agreed to pay for his four-year apprentice program. That would mean a plumber’s license and $25 an hour and a decent middle-class life for him and Crystal and Christen.

    “He was looking at Moeves like this is my road, my way forward,” his father said. There was even talk of them one day forming Walters & Son Plumbing.

    Not to mention the quote about his father seeing him become “a man” through this job.

    I think it’s admirable that Walters was willing to go so far to try and be a good provider to his family. I’m not criticizing him at all. But I wish he had said “screw it, we’ll live in a trailer and go on welfare before I climb down in that trench”; both he and his family would have been better off. And I can’t help but suspect part of the reason more men don’t say that is that we’re trained to resist that kind of thinking.

  3. 3
    Jordan Barab says:

    I’m not sure it’s just men, especially these days. There are plenty of women — especially single mothers — who can’t afford to lose their jobs, or to take lower paying jobs, even if they’re risky. Women don’t go down into the trenches, but they lift hospital patients knowing that they are risking a back injury, they go into understaffed mental health wards knowing they may be assaulted, and they work with toxic cleaning chemicals and pesticides — again, to feed their kids.

    With young men, it may also be kind of a macho thing, but with older men, and women, it’s often just simple survival — and hoping your luck doesn’t run out.

  4. 4
    Ampersand says:

    Oh, I don’t disagree, Jordon. Plenty of women – especially poor women – are working in unsafe, injury-prone jobs.

    Relative to men, though, few women are in jobs that have (relatively) high mortality rates. Although I don’t know how true this is, I suspect that part of the reason isn’t “women aren’t willing to do those jobs,” as some men’s rights activists might claim, but simply occupational segregation – the same sexist mechanism that keeps women in lower-paying jobs.

    Thinking of Patrick Walters, he became a plumber’s apprentence because he (understandably) wanted someday to be a plumber – decent-paying, steady work. But I suspect that few women would be offered that kind of apprentenceship, even if they wanted it just as much as Patrick Walters did.

    Occupational segregation generally works to women’s disadvantage (and men’s advantage); but possibly one of the rare benefits of the system for women is a lower workplace death rate.

  5. 5
    anonymous male fool says:

    …”be a man” by climbing down into unsafe trenches…

    Funny you should mention trenching accidents. Last year I was working on a big construction site. My job was to make earthwork volume measurements by repeatedly jumping down with a GPS rig, all day long six days a week, into one after another of what were the most unsafe excavations I’ve ever set foot in in twenty-five years of doing my job.

    About three months after I started out there the contractor who was doing the excavation changed managers, and the new guy was a lot more safety-conscious, or maybe just more lawsuit-conscious anyway. He wouldn’t let us go down in the cuts, we took indirect measurements instead, and they even paid for us to take a OSHA cerified trench safety class (where I learned that the way we’d done it for the first couple months had been clearly in violation of OSHA regs.)

    Any rate, the amusing part’s this. If I’d walked out of the site for legitimate safety reasons, I’m pretty sure my boss wouldn’t have fired me. Well, when I first got out there I took one look at the wat they were doing those measurements and my first thought was, “Hell no, this is nuts, no way I’m going down in that!” But I ended up doing it anyway, danger and all, for months until that new site manager came along, just guess why.

    Because I was working alongside this 5′-4″ tall, 110-pound woman who was doing the same sort of thing for another contractor, and me being kind of a sucka I was thinking, “well if she’s jumping down in this fifteen-foot deep trench with its unstable vertical sides that are gushing out ground water and sloughing in even as we watch, then certainly I, as a man, can’t allow myself to appear more fearful than she is, can I? here I go!”

    Now that’s pretty damn stupid, huh? Yup yup yup it is.

  6. 6
    Nancy Lebovitz says:

    For years I’ve been hearing from the right that government regulations were damaging to business and from the left that only government regulation can keep people safe. As a libertarian, I’m feeling vindicated that what was really happening was a government agency that’s been sopping up the money for years and not doing the work. I’m glad someone’s actually done the research.

    As for gender, there’s been a long pattern of men reserving the more dangerous, better-paid work for themselves, with the danger to women being given as the reason women aren’t allowed to make that sort of money. A cynical person might think that this is evidence that the pay differential for dangerous work is excessive, or men wouldn’t be hanging onto those jobs so hard.

    Just a thought about unions: they do help some people, but they don’t seem to be knocking themselves out to help everyone (or even everyone doing relatively unionizable work) nor are there good ways of dealing with corrupt/lazy unions.

    I’m not saying this is a complete solution either, but the net makes anonymous publicity a good bit easier, and this includes publicizing unsafe work sites. No guarantee that any particular worker will be warned or employer intimidated by photos of dangerous trenches, but it would improve the odds. And something like that would be evidence if there’s need for a lawsuit.

  7. 7
    PinkDreamPoppies says:

    Nancy, I fail to see how your libertarian position is vindicated. Yes, it’s apparent that OSHA was sucking up money and not doing a whole lot, but I don’t see there being mentioned anywhere in the article, or there being any evidence of, a free market solution to the problem of worker safety.

    The situation with OSHA vindicates part of your position but not all of it.

  8. 8
    JRC says:

    Exactly right, PDP. Nancy’s argument is a bit like arguing against capitalism in toto using the Enron debacle as your only evidence.

    Sure, government programs have their weaknesses, but so does the free market. I’m not some huge central planning fiend or anything, I just think that there are some things the free market does not or cannot provide for, and that’s why we’ve got a government.

    Both methods have their uses. Neither is a magic bullet. The continued inability of most libertarians to see that is one of the chief flaws in their worldview, IMO. Hell, hardcore communists probably have the same hysterical blindness in reverse, but they’re not the ones running our government, so I don’t spend much worying about that.


  9. 9
    Martha Miller says:

    My daughter was hurt seriously on the job where she worked due to unsafe conditions, and got an attorney and thought she would receive atleast some compensation, but the court didn’t make the company pay anything. She is damaged for life, and it is hard to believe that the court didn’t care. She wasn’t even given medical help like she should have been. She has just gone back to work at another place after being off work a long time, and is hoping she can make it through the pain long enough to get insurance so she can get the condition repaired where she was hurt at the unsafe company. Safety for the worker doesn’t seem to matter anymore.

  10. 10
    Dan J says:

    Yeah, PDP and JRC have a point there. The problem seems to rest not in the fact that OSHA exists, but that it is not doing its job. The article makes clear that if OSHA did what it was designed to do, in the way that it was designed to do it, then many unnecessary deaths could well have been avoided. The government of which OSHA is a part is simply most likely bending to some carefully exerted extra-governmental pressures.

  11. 11
    ginmar says:

    Sorry, but I don’t buy the pay differential being justified by the danger differential. It’s just part of the complex interaction of public and private assessment of women’s value.Women get injured by men in private life, off the statistics radar. Men get injured on the job, professionally, and they get compensated for it. More than that, it’s one of those unspoken bargains: “We’ll give you chivalry in the form of cute, clean little good girl jobs, but we’ll also keep you from high-paying jobs, okay?” It’s the pedestal effect: it sort of restricts women to predetermined roles that affirm gender roles. Oh, ladies don’t get dirty; ladies don’t get their nails messy. One has to wonder if it’s necessary for these high-paying jobs to be dangerous or physically demanding, or if that’s just a way to keep women out.

  12. 12
    Ampersand says:

    Ginmar, maybe I missed it, but was anyone arguing that the “danger gap” accounted for the wage gap? I agree with you that it doesn’t; for one thing, many of the most dangerous and injury-prone jobs get lousy pay. Well-paid jobs, on the other hand, are generally safe as a bank vault. (When was the last time the CEO of a major corporation got killed on the job?)

  13. 13
    blue eyes1 says:

    thrown out more to com

  14. 14
    amr saad says:


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  17. 15
    Jo Ann Durbin says:

    I have just started a myspace /stevenmdurbin blog. I lost my husband 9-15-03. He died in a trench collapse while working for Kokosing Construction Company located in Fredericktown, Ohio. By their own testimonies they admitted they never even did Trench Safety 101.

    This never even made it to court.
    The courts made up their own reasons (even when they had the facts in front of them) and the company will never be held accountable. OSHA cited them for 3 violations for a measily total of $15,000, they held a meeting with each other (I was not notified until after the fact) and so as a result, got 1 violation dropped(didn’t monitor the trench, yet their testimonies said differently) and the total fine down to $7500. That’s what my husband’s life was worth.

    BUT what really ticks me off about this farce is this same company has the audicity to blame my husband for his own death and is getting away with it. One of the owners looked me in the eyes and said “Steve Durbin is responsible …”

    Needless to say, it hit me in the stomach. My only prayer was that the courts would honestly look at this and get it in front of jurors, who wouldn’t allow this travesty to prevail and let them get off the hook of blaming a Veteran who was a Presidential Honor Guard in the Army and was only doing the job they told him to do. My husband was an honorable man, he respected this company and he respected people. He would not have EVER listened to someone instruct him to do something unless it was his own foreman or the supervisor or if he knew they already knew what was going on. For this company to claim that he listened to an ODOT person to give him orders and he isn’t here to dispute it just flies in the face of decency!!!! For them to claim they didn’t know the water line was there, is totally a fabrication because they were the ones who installed them 4 months earlier. Yet these judges turned a blind eye to the truth and let them off the hook.

    I would like for these judges to be investigated. There is no way that any reasonable mind that would study the depositions and facts and measurements would have ever viewed this case the same way they ruled.

    Kokosing gets awards for safety and yet my husband is dead because they didn’t do their job. All of the “competent” people that was working at the time of his death, still work for them. His foreman and the supervisor. The hoe operator was pulled away all the time because they didn’t have a foreman on the job and so anyone could pull him away, this left my husband alone most of the time, waiting for the operator to get back. Then it was just the two of them and my husband was the one who is getting in the ditch to put pipe together. The hoe operator stated he was also in the ditch at the time of the collapse, but he didn’t get dirty. He was the last person to see my husband alive and even his story doesn’t jive with the facts. All of them had a part of this and they were never reprimanded and my husband is dead.

    How is that ever justified?

    If you know how I can get an investigation going, I would appreciate it.

    The attorneys that worked on this case took it all the way to the Ohio Supreme Court (which refused to review it). I was told “there are no longer any legal mechanisms available to pursue a claim against Kokosing for Steve’s death”.

    How convenient for Kokosing they didn’t remember the water line they put in and that an ODOT employee happened to be at the site at that time. Wonder what excuses the Appellate Court would’ve used then? I’m sure they would’ve read something else into someone’s statement to make it fit like they did this.

    Thank you for reading this

    Mrs. Steven M. Durbin

  18. 16
    Myca says:

    My God, Jo Ann, I’m so sorry.

    I wish you didn’t have to go through this, I wish these sort of situations were less common, and I really I wish I had some help to offer you other than moral support.

  19. 17
    RonF says:

    Damn, Jo Anne, that sounds horrible. I have no legal expertise at all, but I wish you the best and hope that there’s something else that can be done.

  20. 18
    Jo Ann Durbin says:

    More pictures and blogs to this travesty. Thank you for your comments and support.

    Mrs. Steve (Jo Ann) Durbin

  21. 19
    Jo Ann Durbin says:

    Depositions of ODOT employee and the Kokosing hoe operator as well as new blogs
    are added. More will be added as time and space allows.

    Thank you for your comments and support.

    Mrs. Steve (Jo Ann) Durbin

  22. 20
    Larry Case says:

    Why does congress not listen? Because we are not united. We are not acting as one. We must act as one in order to have any hope for changing employment law where death and injury is concerned. I am writing all Utah legislators and the media outlets to voice my horror over the damage these laws do to my state and our country. I was seriously injured in October 2007 by a malfunction in a dump truck I was driving. THE company, Harper Excavating of Salt Lake City, knew of the dangerous truck and yet told me to drive it anyway. I was unaware of the potential for harm. I had no idea that the truck had the problem. 7 broken ribs, broken back, collapsed lung, broken scapula, head injuries and months of pain and profound change in my life has had not effect on OSHA (they concluded that the “company has a strict policy of maintaining their trucks and that the accident was “‘driver error'”. OSHA has been the worst of the many failures I have found since the accident. The D.O.T. has not even looked into the accident. THe attorney general’s office says that they can’t do anything since they are counsel for the D.O.T.. So, here I sit wondering how we can live in a country that allows these laws to prevail. We must get ourselves together and stand up for what is right.