In an April 29 Senate hearing, congressional lawmakers described OSHA as being “dangerously ineffective” in protecting workers, and claimed the agency's civil and criminal penalties in workplace fatality cases are too weak and fail to deter company violations.

During the hearing, held by the Senate Health, Education, Labor and Pensions Committee, Sens. Edward Kennedy, D-Mass., and Patty Murray, D-Wash., called for Congress to strengthen current workplace safety laws, strengthen provisions for higher penalties and criminal prosecution and insist on stronger OSHA enforcement.

The Occupational Safety and Health Act, created 37 years ago and signed into law by President Richard Nixon, successfully helped reduce workplace accidents and fatalities. Legislators and labor leaders argue that in recent years, however, OSHA has exercised lax oversight, causing workplace safety to suffer.

Republican Senator Mike Enzi from Wyoming remained unconvinced that stronger criminal penalties and fines were the answer. He stated that it was more important for Congress to focus on preventing injuries from occurring in the first place rather than creating punishments for deaths and injuries after the fact.

“Penalties are part of the equation, but just like the death penalty cannot deter every crime, so too, is their utility limited,” Enzi said.

Kennedy Report Reveals New Findings

Kennedy, the committee's chairman, released Discounting Death: OSHA's Failure to Punish Safety Violations that Kill Workers, a report analyzing OSHA penalties in fatality cases. The report focused on monetary penalties, criminal sanctions and the impact on the workers' families.

According to Kennedy’s report, the maximum civil penalty for a safety violation is $70,000. This amount is in stark contrast to penalties issued by the Department of Commerce, for example, which is authorized to impose a $325,000 penalty for a violation of the South Pacific Tuna Act.

“If you improperly import an exotic bird, you can go to jail for two years. If you deal in counterfeit money, you're looking a 20 years,” Kennedy pointed out. “But if you gamble with the lives of your employees and one of them is killed, you risk only 6 months in jail.”

In addition, Kennedy's report found that OSHA consistently reduces penalties imposed on employers in fatality cases by almost 40 percent. OSHA officials, Kennedy added, routinely downgrade the severity of the violations or withdraw the violations entirely in the course of investigations.

Furthermore, the report also found that over $27.5 million in penalties involving the deaths of more than 600 workers since 2004 remains unpaid.

“If we're serious about improving workplace safety, we need to raise penalties and create a serious threat of criminal prosecution in the worst case,” Kennedy noted.

Defining a Crime

David Uhlmann, a director of the environmental law and policy program at the University of Michigan Law School who worked as a prosecutor at the Department of Justice, agreed that the current criminal provisions of worker safety laws are not adequate.

Uhlmann described a case he worked on that demonstrated “the shortcomings of the current laws” and the need for greater enforcement by OSHA. The company, Evergreen Resources, already had history of workplace safety and environmental violations when company owner Allan Elias allegedly sent his workers into a tank of cyanide waste without safety equipment. One of the workers, 20-year-old Scott Dominguez, suffered severe and permanent brain damage as a result.

According to Uhlmann, Elias lied about the contents in tank to emergency responders and doctors treating Dominguez. He allegedly also lied to OSHA about having a confined space entry permit, which was doctored based on instructions from a safety manual he obtained from another company. Elias was charged with three felony counts under environmental laws, as well as one felony county for submitting a fabricated confined space entry permit to OSHA. Although Elias was sentenced to 17 years in prison, Uhlmann noted that under OSH Act, Elias didn't commit a worker safety crime because Dominguez did not die.

“There is something wrong with the law when sending a worker into a tank of cyanide waste, ruining a young man's life, is not a crime under the worker safety laws and is a crime under the environmental laws,” Uhlmann said.