It’s OK To Kill A Few…. But, Don’t Get Mud On The Road

Take a short drive and look at a few construction sites, and you will see miles of silt fence installed to protect roads and streams from storm water runoff. At these same jobsites you often see people working at heights with no fall protection or other personal protective equipment.

Some jobs post signs that read something along the lines of, "$500 Fine for Removing Erosion Control Measures". Yet, how often do you see a sign that reads, "$500 Fine for Not Wearing A Hard Hat…"?

It seems we place more value in not getting mud on the road than in protecting the lives of human beings. The underlying reasons for an increased emphasis on environmental protection versus protection of people are due to the consequences (or lack of thereof).

From 1982 to 2002, OSHA investigated 1242 Willful safety violations.  Yet in 93 percent of those cases, OSHA declined to seek criminal prosecution. In fact, according to a recent New York Times article, in the 35 years since OSHA was formed, there have only been 8 criminal prosecutions.

Part of the reason for so few prosecutions is because of how compliance officers are measured.  What gets measured is what gets done.  At OSHA, what is measured is the number of inspections completed and violations issued, not the number of prosecutions.  Reluctance by OSHA to seek prosecution is also due to the amount of time and resources that will be taken away from the activities that they are measured for doing. Compliance officers have complained that you can essentially punish yourself by referring a case for prosecution. Due to the bureaucratic scrutiny and the time involved, it is easier to take the path of least resistance and simply cite serious and willful citations.

Another reason lies in the fact that OSHA has no criminal investigation unit. Compliance officers are not trained or skilled in putting together criminal cases. As a result of weak case files, prosecutors are unwilling to push a case after reviewing it, that is if the case even gets referred to the Justice Dept.

A major problem is that a criminal willful citation by OSHA is simply a misdemeanor --- NOT A FELONY!!!!

Violation of many environmental and wildlife laws carry felony charges ---- but not killing a person.

OSHA’s fine structure is in serious need of an increase. Harming the environment or wildlife carries stiffer penalties than willful safety violations that may cause serious injury or death to people. As a result, Justice Dept. prosecutors do not want to spend the time, effort, and taxpayer dollars to prosecute a simple misdemeanor.

Compare the following penalties in the table below to the typical OSHA fine, and it is easy to see why employers perceive that storm water control is of higher importance than workplace safety.

Although a Willful OSHA citation can result in a maximum fine of $70,000, the fine is determined on a case-by-case basis and is typically much lower. Even when fines are levied, most contractors know they can negotiate most of the fine in informal conference. Excavating contractors are willing to take the chance of a trench cave in, knowing that the ultimate fine is likely to be around $5000, that is --- IF they get caught. In other words, the perception that there is a lack of consequence for risking a human life is strong. Contractors are essentially reinforced for doing the wrong thing since the positive consequence overpowers the low likelihood of a negative consequence.

With a woefully understaffed OSHA, it is much more likely that a contractor will receive a fine for storm water runoff rather than for serious or willful violations of workplace safety.

The unlikely nature of a fine means that many contractors perceive they cannot compete in the marketplace if they invest in safe working conditions.  They are bidding in a highly competitive market along with those companies that do not include the cost of safety in their bids and simply roll the dice and hope not to get caught.

Headlines help shape perceptions about safety.  When Wal-Mart received a $3.1 million dollar fine for stormwater runoff at a construction site, it made front-page headlines, reinforcing the fear of penalty for failure to comply with EPA requirements.  In contrast, between 5,000 and 6,000 workers die in the workplace every year and most of these deaths never make the news. 

Several large homebuilders made the observation that it costs more to get mud on the road than to kill a construction worker in a workplace accident.  One of their projects had incurred a $3000 fine for a worker death while stormwater violations were costing $12,500 per day.

OSHA needs to change how they measure success. Measuring the number of inspections is meaningless without measuring the consequences of these inspections.

Fortunately, some help is on the way. Recently (and with very little fanfare), the White House asked OSHA to step up the number of cases referred to the Justice Department for criminal prosecutions. They also asked OSHA to partner with EPA and to utilize the EPA criminal investigation unit since they are much more skilled in prosecuting cases. What this does not fix is the fact that killing a human being in the workplace is still only misdemeanor.

One can only say…..GET REAL.

Mike McCarroll, CSP                             Pamela Fisher, CSHM, CHST

President & CEO                                  Vice President

PROSAFE Solutions, Inc.                        PROSAFE Solutions, Inc.