What does it take for some employers to get the message?
OSHA announced yesterday that it had issued citations with penalties totaling $190,642 to El Paso Underground Construction for failing to protect its employees from trench collapse hazards.
This was not the first time El Paso had been cited. Or the second. Or the third. Or the fourth. This was the fifth time El Paso had been cited for endangering its workers in unprotected trenches. “OSHA cited the company four times in 2017 for failing to protect employees from trench collapse hazards. The Agency has placed El Paso Underground in OSHA’s Severe Violator Enforcement Program.”
This citation includes two “serious” violations and two “willful” violations. The first citation, from an inspection in May 2017, reduced the penalty from $36,252 to $7,500. The second citation eliminated an original “repeat” violation, reducing the original penalty from $33,462 to $15,000. The third reduced the original penalty from $14,340 to $10,000 and the fourth reduced the penalty from $33,462 to $15,000 as a “repeat” violation was again deleted.
I guess no good deed goes unpunished.
What Is To Be Done?
As we’ve said, over and over, trench collapses can be easily prevented and OSHA has strong standards and compliance assistance materials that prevent trench deaths if employers comply.
El Paso’s entire safety program seems to consist of one word: “Luck”
Nevertheless, over the last several weeks, we’ve seen three workers crushed to death in trench collapses. 33-year-old Abel Sauceda was killed two weeks ago in Daly City, California, and last month and two workers, Rosario “Chayo” Martínez in Grand County, Colorado, and 20-year old Kyle Hancock of Glen Burnie, Maryland were killed in a trench collapses in June. And clearly paying OSHA almost $50,000 over the past year for trenching violations doesn’t seem to have deterred El Paso Underground Construction from continuing to endanger its employees. El Paso’s entire safety program seems to consist of one word: “Luck”
So what can we do to deter companies like El Paso before they kill someone? Higher penalties, for one. Clearly the penalties assessed here weren’t enough.
What about criminal prosecution? OSHA can only criminally prosecute an employer if a worker is killed and that death is related to a willful violation. And even that is only a misdemeanor with up to 6 months in jail, making it unlikely in most cases that the Department of Justice will go to the trouble of pursuing a criminal prosecution. Only 96 worker death cases have been criminally prosecuted under the Occupational Safety and Health Act since 1970.
And if a worker is endangered or even seriously injured or permanently disabled? No criminal prosecution is possible under the OSHAct. Federal environmental laws, on the other hand, apply criminal penalties in cases where there is “knowing endangerment” of a worker and the law makes such violations felonies.
The Protecting America’s Workers Act, introduced in the House and Senate for the past decade, allows criminal prosecutions in the event of death resulting from a “knowing violation of the law, or “violation caused or significantly contributed to serious bodily harm to any employee but does not cause death to any employee.” And conviction would be a felony, not just a misdemeanor with penalties up to 20 year in jail, taking into consideration whether there is a fatality and the employer has previous convictions.
One Other Thing
Republicans and business representatives like to criticize OSHA enforcement because it’s allegedly not preventive — it only penalizes employers after a worker has been hurt or killed. Much better to use compliance assistance to prevent an incident before a worker is injured or killed. Right?
Well, we know that none of that is true. Most of OSHA’s citations (like El Paso’s) are issued before someone is injured with the intent of preventing a worker from getting hurt, and high penalties (or a realistic risk of a criminal conviction or jail time) can certainly deter employers from cutting a few corners and hoping their luck holds out. Compliance assistance is great for employers who want to do the right thing and just don’t know how, but the stick (high penalties or a realistic threat of prison time) is an effective deterrent before a worker is hurt or killed, as well as after.
Neither OSHA penalties — even higher penalties implemented over the past couple of years — nor the possibility of OSHA criminal prosecution under the current law are effective deterrents as the case of El Paso Underground Construction shows. Hopefully OSHA will stick to the penalties issued, and hopefully El Paso will get the message — before their luck runs out and a worker is needlessly killed.
And hopefully Congress will seriously consider the Protecting America’s Workers Act. Only 90 days, 22 hours and 16 minutes until the mid-term elections.