Death Of Temporary Worker: Bosses ‘Not Thinking Of Him As A Human Being’

Temporary Workers: Weak Law, Few Prosecutions

Although the Galassi memo recommends criminal action in the Centeno case, employers in America are rarely prosecuted for worker deaths.

The Occupational Safety and Health Act of 1970 is exceptionally weak when it comes to criminal penalties. An employer found to have committed flagrant violations that led to a worker’s death faces, at worst, a misdemeanor punishable by six months in jail.

By comparison, a violation of the Endangered Species Act carries a maximum sentence of one year.

“It should not be the case that a facility that commits willful violations of the worker safety laws faces only misdemeanor charges when a worker dies because of those violations,” said David Uhlmann, a law professor at the University of Michigan and former chief of the Justice Department’s Environmental Crimes Section.

“The company involved as well as any responsible corporate officials should face felony charges that carry significant financial penalties for the company and the possibility of lengthy jail terms for the individuals,” Uhlmann said. “Anything less sends a terrible message about how we value the lives of American workers.”

Federal prosecutors are generally unenthusiastic about worker cases, said Jordan Barab, second-in-command at OSHA. The Justice Department “often says, ‘You know, we’re not going to spend all these resources just to prosecute a misdemeanor,’ ” Barab said.

At Justice, Uhlmann made creative use of environmental statutes to get around the OSH Act.

In one case, a worker at an Idaho fertilizer plant named Scott Dominguez nearly died after being sent into a steel storage tank containing cyanide-rich sludge. Dominguez had been ordered into the 25,000-gallon tank without protective equipment by the plant’s owner, Allan Elias, who had refused to test the atmosphere inside the vessel.

Dominguez collapsed and sustained brain damage from the cyanide exposure. Prosecutors charged Elias with three felony counts under environmental laws, including the Resource Conservation and Recovery Act, which governs the handling and disposal of hazardous waste.

Because Elias had fabricated a confined-space entry permit indicating it was safe for workers to enter the tank, he also was charged with one count under a section of Title 18 of the United States Code, for making a false statement to, or otherwise conspiring to defraud, government regulators.

After a jury trial in 1999, Elias was convicted on all counts and sentenced to 17 years in prison.

Environmental statutes don’t always apply in worker death or injury cases. The accident that mortally wounded Carlos Centeno, for example, appears not to have involved hazardous waste, or air or water pollution.

Charges under Title 18 remain a possibility, Uhlmann said.

Nonetheless, he said, the OSH Act needs revision. Congress came close to adding felony provisions to the law in 2010 but failed amid pushback from the business community.

“Accidents are not criminal,” Uhlmann said. “What are criminal are egregious violations of the worker safety laws that result in not just deaths but serious injuries.”

Sen. Tom Harkin, an Iowa Democrat who chairs the Senate Health, Education, Labor and Pensions Committee, is a co-sponsor of the Protecting America’s Workers Act, which would enhance criminal and civil penalties for OSHA violations.

“In every other walk of life, if a person engages in willful conduct that results in someone else’s death, we throw the book at them,” Harkin said in a statement. “But if someone dies on the job, the rules are different. Even intentional lawbreaking that kills a worker brings no more than a slap on the wrist.”

Whether a bulked-up worker-protection law would have improved conditions at the Raani Corp. is a matter of speculation.

According to Thomas Galassi’s memo, the accident that ultimately killed Carlos Centeno merited only a one-line entry in the company’s files, stating that an internal committee would investigate.

During the inspection after Centeno’s death, a newly hired Raani manager asked OSHA officials to help him convince his superiors to train and provide safety gear to workers, Galassi wrote.

The manager had concluded that those above him had “no respect for the hazards of the chemicals on site or human life.”

http://www.publicintegrity.org/2012/12/20/11925/they-were-not-thinking-him-human-being

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