For the first time in the state’s history, a Washington employer will go to jail for the death of one of his employees — largely thanks to the determined work of Washington workplace safety advocate Jay Herzmark.
On Jan. 26, 2016, 36-year-old Harold Felton was crushed to death under more than 6,000 pounds of dirt when an 8 to 10-foot deep trench caved in on top of him at a West Seattle home. Washington state OSHA regulations require trenches over 4-feet deep to be shored (the federal OSHA requirement is 5 feet.) The Labor and Industries (L&I) Department, which houses Washington OSHA, cited Alki Construction in September 2016 and fined the company $51,500, including two willful violations stating that the company “knowingly ignored basic, common-sense safety rules”. Company owner Phillip Numrich appealed the fine and L&I agreed to reduce the penalty to $25,750 to avoid costly litigation.
The trench Felton was working in had been dug over a week prior. During the time it was open, there were several days of heavy rain. The trench was only shored on two sides and only part way up. It was dug right next to the house and a sidewalk, weakening the support for both of them. The dirt taken out of the trench was piled right next to it. The trench dirt had been previously loosened from earlier digging. Felton was given a reciprocating saw to use in the trench which vibrated it and further loosened the dirt. Each one of these things made the trench more likely to collapse. There was also no ladder or other safe way to get out quickly. The L&I case violations included:
not protecting workers from cave-in; failure to have an accident-prevention program for excavation work; no ladder or other safe way to enter and exit the trench; sidewalks and structures were not supported to protect employees; dirt and other materials were less than 2 feet from the edge of the excavation; and there were no daily inspections of the changing soil conditions.
Trench collapses are well known hazards and easy to prevent if federal or state OSHA standards are followed. Yet every month, workers die (or in a few cases are rescued) from unsafe trenches in this country. Federal OSHA requires every trench over 5-feet deep to be protected with a trench box or some other form of shoring or sloping. The problem is that trench walls can collapse in seconds and you generally can’t dig someone out of a deep collapsed trench. One cubic meter of soil weights around 3,000 pound — the size of a small automobile. When an automobile falls on you chest, you are unlikely to survive. Even the attempt to dig someone out if fraught with peril: collapses trenches can continue to collapse, endangering the rescuers.
Two years after Felton’s death, largely at the urging of Herzmark, the King County Prosecutor’s Office charged Numrich with felony second-degree manslaughter and violation of labor safety regulation for alleged negligence that caused the death of Felton. It was the first time a Washington employer had faced felony manslaughter charges for a workplace death. According to L&I Director Joel Sacks, “There are times when a monetary penalty isn’t enough.”
Unfortunately, instead of the manslaughter charge, the prosecutor’s office later backed down and reached a settlement with Numrich, where he pleaded guilty to the crime of Attempted Reckless Endangerment, a simple misdemeanor and agreed to serve 45 days in jail. Numrich must also pay a fine of $100,000 (in addition to the original L&I fine) and serve probation for 18 months, limiting his contact with the Felton family and the type of work his company can perform.
Numrich is the first Washington state employer to serve time in jail for a workplace death, but he may not be the last.
Numrich is the first Washington state employer to serve time in jail for a workplace death, but he may not be the last. Five people were charged with manslaughter after the January 2020 trench collapse at the Skookumchuck Wind Farm in Lewis County that killed 24-year-old Jonathan F. Stringer. A Lewis County Superior Court judge later dismissed all charges against four of the five codefendants. Only Kenneth P. DeShazer will face one count of first-degree manslaughter.
And Patrick Hinds, the lead prosecutor in the Numrich case, has been talking to all the police jurisdictions in King County about notifying their office immediately whenever there is a workplace death, according to Herzmark who had been organizing efforts to maintain the original felony manslaughter charges.
OSHA Criminal Prosecutions: Few and Far Between
Let’s hope that other prosecutors around the country follow Hinds’ example. The prospect of jail time can be a powerful deterrent for employers who routinely cut corners on workplace safety. Criminal prosecution of criminal cases by local prosecutors for workplace deaths is extremely important due to the weakness of the criminal provisions of the federal Occupational Safety and Health Act (OSHAct). The OSHAct allows criminal prosecutions only in the event of a willful violation that results in a fatality (or for lying to an OSHA official). But even in the event of a conviction, it’s only a misdemeanor and the Department of Justice, which prosecutes these cases, is generally reluctant to invest the time and resources necessary for a major criminal case if the outcome is merely a misdemeanor.
The prospect of jail time can be a powerful deterrent for employers who routinely cut corners on workplace safety.
In fact, only 110 worker death cases have been criminally prosecuted under the Occupational Safety and Health Act since 1970, with defendants serving a total of at least 112 months in jail.
Local prosecutors have been more active, although even those cases are few and far between as summarized by the AFL-CIO:
In Philadelphia, the district attorney successfully prosecuted the general contractor and crane operator for deaths of six individuals in the 2013 Salvation Army building collapse, winning convictions for involuntary manslaughter and jail time. In New York City, the Manhattan district attorney won a manslaughter conviction against the general contractor, Harco Construction, for the 2015 trenching death of a young undocumented immigrant construction worker. The foreman for the excavation company, Sky Materials, was convicted of criminally negligent homicide and reckless endangerment, and sentenced to one to three years in jail. In both of these cases, unions and local safety and health activists worked with prosecutors to provide assistance and to educate the community about the job safety crimes.
The Department of Labor began during the Obama administration working to work more closely with the Department of Justice and local prosecutors on criminal cases. But it also takes the work of local activists, like Herzmark, to convince prosecutors that these cases are worth prosecuting and that they can be successful and effective deterrents. Even though the more severe felony charges were dropped, Numrich’s imprisonment should send a message across the country.
Let’s hope that other activists round the country follow Herzmark’s example. Criminal charges should be considered for every trench fatality, but it often takes an extra push from unions and advocates to convince local prosecutors.
You know what to do…