public employee killed

Last September, 55 year old Bobby Green was crushed to death when a 20 foot deep unprotected trench collapsed on top of him in Huntsville, Alabama. Two other workers in the trench were rescued with minor injuries. The trench that killed Green was 4 times as deep as OSHA allows. So, almost 5 months later, do we see a huge OSHA penalty for this clearly preventable death?

In your dreams.  Turns out there’s nothing to see here, according to the city of Huntsville.

Why? Well, unfortunately, Bobby Green worked for the City of Huntsville and was unlucky enough to be a public employee in the state of Alabama. Why is this unfortunate? Because Alabama is one of 24 states in this country where public employees are not covered by OSHA. Over 8 million public employees in the United States have no right to a safe workplace — a right enjoyed by private sector employees for over 50 years, even though in many states public employees have a higher rate of injury than private sector counterparts.

Alabama is one of 24 states in this country where public employees are not covered by OSHA.

When the Occupational Safety and Health Act (OSHAct) was passed in 1970, public employees were exempted from coverage, with two exceptions. State plan states that covered their private sector employees are also required to cover their public sector employees. 21 states run their own state plans.

States covered by federal OSHA were also given the opportunity to cover only their public employees and OSHA would fund up to 50% of those programs. Unfortunately, over the past 50 years, only 5 states — Connecticut, New York, New Jersey, Illinois and Maine have chosen to adopt public employee only plans.

There is Nothing More to Report

Because Green worked as a public employee in Alabama, there was no OSHA investigation, no OSHA citation and no OSHA penalty. The city of Huntsville apparently did an investigation (or their insurance company did). What was the conclusion of the investigation?

“the city did have safety equipment in place and there is nothing more to report.” –Huntsville Director of Communications Kelly Schrimsher 

Television station WAFF tried for months to get a copy of the investigation.  Finally, this week, Huntsville Director of Communications Kelly Schrimsher revealed that

…the city hired an outside consultant to investigate. In an email last week, Schrimisher said “the city did have safety equipment in place and there is nothing more to report.” She also said work resumed at the site several months ago.

Schrimsher said the consultant was hired for insurance purposes and she said it was standard procedure in an industrial accident.

She didn’t elaborate on what specific safety equipment was in place, nor did she tell us who the outside consultant was, or what the city paid them. She also did not explain what the consultant found, which was likely paid for by tax dollars.

 Nothing more to report.

Really? I’d like to know a few more things. Bobby Green’s family and friends probably would as well.

Like, what equipment was “in place.” What does “in place” mean? If there was equipment in place, was it being used? If not, why not? Had the workers been trained? Was the project overseen by a competent person? Were OSHA standards being complied with? Was anyone held accountable? What is being done to make sure this never happens again?

Seems like there is a lot more to report. But if the city of Huntsville has its way, that’s it. Move along. Nothing to see here. No lessons to be learned. No one will be held responsible for the death of Bobby Green and we’ll never know what happened.

Green did not die alone. Public employees who go down into trenches, work on the roads and highways, in prisons, in parks, in utilities, in wastewater treatment plants, in public works, in hospitals and mental health institutions, as social workers, firefighters or police are out of luck if they work in Alabama, Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Kansas, Louisiana, Massachusetts, Mississippi, Missouri, Montana, New Hampshire, North Dakota, Nebraska, Ohio, Oklahoma, Rhode Island, Pennsylvania, South Dakota, Texas, West Virginia or Wisconsin. So sorry. Be careful out there.

This is the United States in 2022: Risk your life every day on the job, doing the same jobs that private sector workers do, with no legal protections, with no obligation to follow the most obvious safety standards —  or go find another job. (Oh, also, most of you have only a limited right, or no right to belong to a union or engage in collective bargaining, or require the employer to collect dues,  so better not to think about organizing a union either. Right Supreme Court?),

Preventable Tragedies in Trenches and Public Workplaces

Those who have been readers of Confined Space since the beginning in 2003 know that there are two things that make me really mad: Trench collapses and public employee deaths.

I won’t recite again how avoidable trench collapses are or how I think that any employer who sends a worker to his death in a trench collapse should go directly to jail. I just wrote about that here and multiple times here and here way before that.

After heading up the health and safety efforts for the American Federation of State County and Municipal Employees for 16 years, it’s also no secret that getting health and safety coverage for public employees has been a major goal for 40 years.  And unfortunately, it’s been a mostly failed effort.

When I began work at AFSCME in 1982, OSHA covered public employees in 23 states. Today public employees in only 26 states have the right to come home safe to their families after work.  Not a great success rate. (Although the state of Massachusetts seems to be on its way to becoming the 6th state to adopt a public employee-only plan.)

What Is To Be Done?

There are solutions here.  Solutions that are faster and more effective than waiting for more states to adopt public employee plans, or waiting for Congress to fund OSHA to the level the agency needs to assure the safety of all workers in the United States.

To ensure that public employees have the same right to a safe workplace that private sector workers have, the OSHAct must be changed to cover public employees.

This is not complicated. It involves eliminating 9 words from the definition of “employer” in the Act. Nor is this a new idea. One of the first times I testified before Congress — in 1994 —  was to call for public employee protection. That was the last time there was a serious effort to reform the Occupational Safety and Health Act, and provide coverage for public employees.

I testified that day with Amy DelGuzzo, the daughter of Linus Kreiner, an employee of the city of Madeira, Ohio, who had been killed two years before in a trench collapse. A death that would not have happened if Kreiner’s employer was covered by OSHA and had complied with the law. Amy had just given birth to a son, who, she told the Senators, would never be able to go fishing or to Reds games with his grandfather.

At that time, the public employer organizations (Conference of Mayors, League of Cities, National Association of Counties) opposed public employee coverage because they alleged they were already protecting public employees. And OSHA coverage would cost too much. Why it would cost too much to do something they were allegedly already doing, they never were able to explain.

Why it would cost public employers too much to do something they were allegedly already doing, they never were able to explain.

And what can we do about trench collapses? After all, plenty of private sector employees die in trench collapses every year. There is also a solution that I talked about here. This also involves changing the law — not only increasing OSHA penalties, but making it much easier to ensure that an employer who knowingly sends an employee to his death will be criminally prosecuted and jailed for a lengthy period if found guilty.

Happily, I’m am not the only one thinking up these solutions.  The  Protecting America’s Workers Act, which is pending in the House of Representatives and Senate, would increase OSHA criminal penalties from a misdemeanor to a felony (and up to 10 years in jail) for any employer who “knowingly violates any standard, rule, or order promulgated under [under the OSHAct] and that violation caused or significantly contributed to the death of any employee.”

Knowledge of injustice makes it harder for people to ignore, harder for reporters not to write about and harder for politicians not to act.

The bill would also allow criminal charges (and up to 5 years in prison) where an employer’s action “significantly contributed to serious bodily harm to any employee but does not cause death to any employee.”  The House Education and Labor Committee last held a hearing on OSHA penalties and criminal prosecutions on Workers Memorial Day in 2009 and a hearing on public employee coverage in 2007.

There is Much More to Report

Most people have never suspected that the highway and wastewater treatment and public works employees they see every day have no legal protection for their health and safety on the job.  Most reporters that cover these senseless tragedies have no idea either.

Most people don’t know how easy it is to prevent a trench collapse; that trench collapses are not “freak accidents” or acts of God.

Most of you reading this know all of this. And it is our responsibility to make sure everyone knows it and can no longer hide behind “we never knew….”

Knowledge of injustice makes it harder for people to ignore, harder for reporters not to write about and harder for politicians not to act.

You know what to do.

5 thoughts on “Another Public Employee Killed. But “Nothing to Report””
  1. Jordan thanks I remember when you first published notice on this. I can’t believe Huntsville is getting a pass on it however they got these people out there called ‘personal injury attorneys’ and I’m kind of guessing they’re gonna be all over this so one way or the other Huntsville is going to pay properly. With a little luck they’ll learn their lesson from it and maybe the other cities towns counties and states will pay a bit more attention.
    I’m kind of guessing the settlement numbers are going to run into seven digits as well they should that’s probably more than an OSHA penalty
    Regretibly it’s gonna be an insurance payment versus hard dollars out of Huntsville‘s coffers but maybe they’ll get the message

  2. Jordan
    Your information about Wisconsin is incorrect. Under State Statute all of OSHA 1926 and 1910 were adopted as part of state law. The only difference is the enforcement agent.

  3. Jordan,
    Thanks for this article. I live and practice law in Huntsville. Last Fall, I wrote about OSHA citing a company in the nearby city of Madison for a fatal trench collapse. Yet, a separate collapse involving municipal employees is treated very differently. It’s important that people understand how some employees are treated differently than others. I spoke with one City employee after the municipal collapse. The danger in which these employees were placed is beyond reckless. Our public employees deserve much better. I’m going to mention your article in an upcoming post. Thank you for highlighting this issue.

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