I spend a lot of time each March preparing to commemorate Worker Memorial Day on April 28. I end up reading way too many news stories about workers who were killed on-the-job. I search here and there trying to identify the victims by name and figure out the circumstances that contributed to their deaths. Year in and out, one thing is clear: some companies are just plain reckless and they gamble with the lives of their employees.
Reckless business decisions and work-related deaths is the subject of a new manual developed by the Center for Progressive Reform (CPR). "Preventing Death and Injury on the Job: The Criminal Justice Alternative in State Law" is a toolkit for worker- and community-coalitions to encourage prosecutors to review egregious workplace fatality and serious injury cases for possible criminal charges.
I typically shy away from reading law review articles and court decisions. The legal lingo and mumbo jumbo makes my head spin. CPR’s manual, despite being written by lawyers and legal scholars, does none of that. The authors use plain language to describe how prosecutors should think about work-related fatalities:
“When a drunk driver kills a pedestrian, we consider it manslaughter. Reckless business decisions that cause workplace fatalities and egregious injuries are no different.”
“When people in positions of authority make profit-oriented choices that put workers at risk, it is no excuse that they did it in pursuit of profits or on behalf of a business entity. Prosecutors should therefore focus their resources on locking up criminals who perpetrate violence 'in the name of business,' victimizing workers who are trying to provide for themselves and their families.”
Some might remark that the enforcement of worker safety regulations falls to federal OSHA and the States that run their own OSHA programs. The laws that created these agencies do include provisions on criminal enforcement, but they are antiquated and woefully inadequate. CPR explains why. Reading the manual I also learned of an important and relevant 1989 Supreme Court of Michigan decision. The ruling clarifies that all states have the authority to use their criminal laws in the employment context. People v. Hegedus, says:
"While OSHA is concerned with protecting employees as 'workers' from specific safety and health hazards connected with their occupations, the state is concerned with protecting the employees as 'citizens' from criminal conduct. Whether that conduct occurs in public or in private, in the home or in the workplace, the state’s interest in preventing it, and punishing it, is indeed both legitimate and substantial."
CPR explains basic criminal law concepts which prosecutors will consider and advocates will want to be aware. For example, who should be charged with the crime? The company president? A supervisor? The business entity? The prosecutor will also assess the defendant’s “state of mind” (or mens rea.)
“Many states’ criminal codes recognize four broad categories of states of mind, ranked from most to least blameworthy: purpose, knowledge, recklessness, and criminal negligence.”
The manual explains some of the language used by prosecutors. They are terms and concepts that worker- and community-coalitions will want to be aware.
Finally, CPR’s manual includes a play book for worker advocates to design reforms to build a local program for the prosecution of worker fatalities as crimes. There are checklists, talking points, sample letters, and a directory of prosecutors and prosecutorial associations.
Prosecutors in a few states have pursued criminal charges in workplace fatality cases. Although there have not been many, in those that have been pursued, CPR notes
"prosecutors have been remarkably successful."
Not every worker fatality case should be subject to criminal prosecution. But CPR makes the case that there are many incidents that at least should be scrutinized by local police and prosecutors. It's time to get passed thinking that on-the-job deaths are "just accidents."