|OSHSPA Reports on State Plan Activities > 2002 OSHSPA Report > State Responsibility: Providing Worker Protections|
|State Responsibility: Providing Worker Protections|
Historically, states have embraced their responsibility to protect the safety and health of their workers. States plans use a variety of activities to encourage employers to establish worker protections programs. States offer companies leadership, guidance and flexibility to help them save lives and prevent injuries and illnesses.
A comprehensive safety and health program is one of the most effective tools employers have to address workplace injuries and illnesses. Recent studies have estimated that safety and health programs save $4 to $6 for every dollar invested. States use a combination of additional penalties and criminal prosecution against employers in cases of death or serious injury. States also have specific rules to prohibit discrimination against employees who exercise their rights under the safety and health statutes.
Safety & Health Programs
Statistics show that many occupational accidents and illnesses are preventable through an effective safety and health program. For a workplace program to be effective, the employer should develop a comprehensive plan emphasizing both management commitment and employee participation. Development and conscientious implementation of such a program should result in lower injury, illness and fatality rates along with lower workers’ compensation costs.
Safety and health programs further the goal of changing the workplace environment to increase employer and worker awareness of, commitment to, and involvement in safety and health. Federal OSHA has 70 partnerships with 4,600 employers nationwide that stress the importance of employer and employee commitment to developing a safety culture which becomes an integral part of operations.
Alaska, California, Connecticut, Hawaii, Minnesota, Nevada, New Mexico, North Carolina, Tennessee and Washington require employers to develop and maintain comprehensive safety and health programs–which contain the elements of worksite analysis to identify actual and potential hazards, technical and administrative control of the hazards, and training for all personnel, including supervisors and managers.
California law requires all employers to set up effective written injury and illness prevention programs. Employers must conduct periodic worksite inspections to identify unsafe conditions and work practices, and eliminate any hazards found.
Minnesota requires employers in industries with high injury and illness incidence and severity rates to develop a written workplace safety and health program. Employers of 25 or more employees are required to establish a joint labor-management safety committee, and those with fewer than 25 employees must establish a committee if their pure premium rate is in the top 25 percent for all classes.
Nevada requires employers with 11 or more employees or any manufacturer of explosives to have a "Written Workplace Safety Program." To assist the employers in understanding the Nevada statutes, how to develop a program, and the purpose or need for such a program, regular training sessions are conducted and a written guide is made available to employers. The guide has been placed on the Nevada Safety Consultation and Training Section’ s web site along with the required Rights and Responsibility Pamphlet (both in English and Spanish). The web site address is www.4safenv.state.nv.us.
North Carolina requires employers with a high rate of workers’ compensation claims to have written safety and health programs, and to establish formal safety and health committees.
Oregon law requires labor-management workplace safety committees for most employers in the state. An innovative alternative to the traditional safety committee has been developed to accommodate the special needs of the many small employers in the state. A pamphlet describing this safety committee option is available on Oregon OSHA’s website.
Washington requires every employer to develop a written plan addressing the hazards of that business. The plan must include a safety and health committee of employer and employee representatives, and employee training in safe work practices. The state’s video, Staying a Step Ahead, helps employers and their employees establish accident prevention programs on their own without waiting first for on-site consultation.
Violations Causing Worker Death or Serious Injury
Arizona statute directs the Industrial Commission to assess an additional $25,000 penalty against any employer for each employee who suffers permanent disability or death as the result of a willful or repeated OSH violation. The following provisions must be met: the citation was a final order; workers’ compensation benefits were paid as a result of the employee’s permanent disability or death; and the OSH violation did not result from employee disobedience. The additional penalty is paid to injured employees or their dependents.
California law provides that if a repeat or willful violation caused death or serious injury, illness or exposure, the penalty is not reduced for any reason other than size of employer and no abatement credit is given. Legislation provides that any employer or employee who has direction or management of any place of employment or employee, and who willfully violates any occupational safety or health standard, order, special order or Section 25910 of the Health and Safety Code–and that violation caused an employee’s death or permanent/prolonged bodily impairment–is guilty of a public offense. The penalty is county jail imprisonment up to one year or a fine of up to $100,000 or both–or state prison for 16 months to three years or a fine of up to $250,000 or both. If the defendant is a corporation or limited liability company, the fine may not exceed $1,500,000.
A California roofing contractor, owner of 101 Roofing, pled guilty to 52 felony violations. The charges included involuntary manslaughter in connection with the death of a worker. The worker was not wearing fall restraints and fell four stories to his death. The contractor was also charged with violating an occupational safety standard at a workplace resulting in the death of an employee.
Roofing employees were not provided with fall protection equipment and were not trained in use of equipment, despite the height and pitch of the roof. Normal fall protection consisted of ropes tied around the employee’s waist but these were untied when moving from one area to another or when climbing a scaffold without the help of a ladder.
The contractor and three of his employees were arrested. The roofing contractor and 101 Roofing were also charged with numerous felony violations of income tax evasion, workers’ compensation insurance premium fraud, unemployment insurance fraud and underreporting corporation income. The contractor had cashed more than half the corporate checks at a check-cashing establishment in order to avoid reporting this income. The contractor was held on $1 million bail. The contractor will be sentenced to a three-year state prison term and will surrender his contractor’s license and discontinue business operations. Three codefendants are set for further proceedings in the same courtroom.
The case was prosecuted by the San Francisco District Attorney’s office following a joint investigation conducted by the District Attorney’s Office, Cal/OSHA, the California Employment Development Department and the California Department of Insurance Fraud Division and tax agencies.
In September 2001, Iowa filed criminal willful charges for the first time for a communication tower fatality when a 29-year-old employee died on his first day on the job.
Under Kentucky law, liens may be placed against employers who are in violation of any requirement of the Kentucky safety and health statutes, once administrative and judicial appeals have been exhausted.
For the first time in Michigan history, an employer will serve time in jail for a workplace fatality. On Oct. 10, 2002, James Morrin, Jr., foreman for J.A. Concrete Construction Company, was sentenced to 360 days in jail and three years probation for the fatality of Robert Sorge. On Aug. 11, 2000, Sorge, was directed by Morrin to deliver a gravel load into an area under a 7600-volt power line. Sorge was electrocuted when the truck bed contacted the energized wire.
The J.A. Morrin Corporation was sentenced to five years probation. The corporation must also pay fines totaling $156,903 to the Court, a $50,000 penalty to MIOSHA, and must adhere to all the terms of the Settlement Agreement. The agreement will provide MIOSHA with the tools and the ability to closely monitor the company and to help ensure that their employees will be protected.
In an earlier case, an employee was killed and two others seriously injured at Midland Environmental Services while removing an underground petroleum storage tank. The MIOSHA investigation resulted in the issuance of several citations for willful violations of MIOSHA rules. The outcome of the case was a guilty plea by the employer on behalf of himself and the corporation to two counts of attempted involuntary manslaughter. Sentencing took place on Dec. 19, 2000. The owner received five years probation and 200 hours of community service. The owner and the corporation paid the full combined statutory fine of $35,000, and were required to abide by all MIOSHA and DEQ laws.
During its 2000 session, the Legislature amended the Minnesota Occupational Safety and Health Act by increasing the minimum penalty assessed in cases where a violation causes or contributes to the death of an employee. The minimum non-negotiable fine for all citations connected to the death of an employee if there is a willful or repeat violation is $50,000. If there is no willful or repeat violation, the minimum fine is $25,000. The legislation went into effect July 2000. In the 2002 session, the Legislature amended the minimum non-negotiable fine to reduce the penalty amount for employers with less than 50 employees and if the person who died was a major owner of the company. This change will go into place in August of 2003.
Nevada has a specific regulation pertaining to violations that result in the death of an employee. Any employer who willfully violates any requirement of this chapter, or any standard, rule regulation or order, where the violation results in the death of any employee shall be punished. For the first offense, by a fine of not more than $20,000 or by imprisonment in the county jail for not more than 6 months, or by both fine and imprisonment. The second offense would be double both the fine and jail time.
Oregon law provides for a civil penalty of up to $10,000 or imprisonment up to six months or both, if a willful violation of the OSHA Act materially contributed to the death of an employee.
Virginia law provides criminal penalties up to $70,000 or imprisonment up to six months or both for the first occurrence of any willful violation that causes the death of an employee. A second occurrence can double both the fine and length of sentence. Virginia’s policy is to recommend criminal prosecution for manslaughter against any person whose flagrant, culpable and wanton violation of VOSH laws results in the death of an employee. Virginia has successfully prosecuted a criminal willful violation and a manslaughter charge. A $7,000 penalty is assessed for a serious fatality-related violation, a $70,000 penalty is assessed for a repeat or willful fatality-related violation, and no adjustments are made.
Discrimination Against Workers Reporting Hazards
Kentucky’s uniquely structured system for addressing discrimination against employees who exercise their rights under the safety and health statutes includes reinstatement under order of the Secretary, pending litigation outcome. Citations and penalties up to $10,000–in addition to reinstatement and back pay to the employee–may be assessed against employers who have discriminated. Cases are appealed through the Kentucky Occupational Safety and Health Review Commission.
According to federal OSHA records, Michigan’s Employee Discrimination Division (EDD) has one of the fastest resolution times in the nation. Complaints are normally settled within three months. One case that went to the Michigan Supreme Court clearly shows the total commitment of the MIOSHA program to protect employee rights. In 1991 the case was investigated by EDD, which determined a dismissed employee should be reinstated with full seniority and back pay including interest. The company appealed the decision first to the department’s Office of Hearings, then to Wayne County Circuit Court, next to the Michigan Court of Appeals, and finally the Michigan Supreme Court. Eight and a half years later the case was finally resolved, and it was determined the company would issue to the employee two payments totaling $40,000 including interest. Though this case is not typical, during every step of the proceedings, there was judicial and administrative support for the protection of employee rights.
The State of Nevada has a specific regulation (NRS618.445) pertaining to an employee being discharged or in any way discriminated against because a safety and/or health complaint has been filed. If the court finds that the employee was discharges or discriminated against, the employee is entitled to reinstatement, and reimbursement for lost wages and work benefits.
Puerto Rico accomplished the time frame of 90 days for the resolution in the discrimination cases. On FY 2002, OSHO settled three cases at the Agency Level.
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