Although it is certainly too early to cast blame, if any, for this past Friday’s fatal crane collapse on the East Side, with the Manhattan district attorneys office having opened a criminal investigation into the collapse, the death and injuries sustained in the accident is perhaps just the latest example of why the Occupational Safety and Health Act, the primary federal worker-safety law in the United States, is in need of more powerful enforcement penalties. So cogently argues David M. Uhlmann, a law professor at the University of Michigan, in a recent New York Times op-ed article.
About 6,000 workers are killed on the job each year, many in cases where the deaths could have been prevented if their employers followed the law.
The Manhattan district attorneys criminal investigation is apparently focusing on whether a rotating apparatus, or turntable, that connects the operators cab and the boom to the crane tower of the crane and was found to be damaged on the collapsed crane had previously been seriously damaged during construction on West 46th Street last year and then inappropriately put back into service.
If, as is suspected, it was the same turntable, questions to be answered include whether the Department of Buildings ordered the crane’s owner, New York Crane, to dispose of the cracked turntable, whether the crane’s owner was authorized to repair the turntable, and was the work done correctly.
It must be noted that all fatal construction accidents in Manhattan are investigated by the district attorneys Rackets Bureau, and often no criminal charges are brought. Professor Uhlmann contends, based on his experience as a federal prosecutor, that without a serious threat of criminal enforcement, more workers will be put at risk by companies that put profits before safety.
Under federal law, says Professor Uhlmann, an employer who breaks the nations worker-safety laws can be charged with a crime only if a worker dies. Even then, the crime is a lowly Class B misdemeanor, with a maximum sentence of six months in prison. Employers who maim their workers face, at worst, a maximum civil penalty of $70,000 for each violation.
Employers rarely face criminal prosecution under the worker-safety laws. In the 38 years since Congress enacted the Occupational Safety and Health Act, only 68 criminal cases have been prosecuted, or less than two per year, with defendants serving a total of just 42 months in jail. During that same time, approximately 341,000 people have died at work, according to data compiled from the National Safety Council and the Bureau of Labor Statistics by the A.F.L.-C.I.O.
Generally, under present law, in order for a criminal prosecution to be undertaken, a worker must have been seriously injured during an environmental crime. When Professor Uhlmann became chief of the Justice Departments environmental crimes section, an initiative was started to seek justice when workers were seriously injured or killed during environmental crimes.
OSHA has cited Sorbara Construction Corp., which had leased the crane involved in the recent crane accident, for 35 violations in the past 10 years, none of which involved the East 91st Street job, according to records. The company has paid $104,675 in penalties.
Professor Uhlmann argues that it is long past time for Congress to change the law, and he offers a number of specific suggestions as to how to do so, as follows. Congress should amend the Occupational Safety and Health Act to make it a crime for an employer to commit violations that cause serious injury to workers or that knowingly place workers at risk of death or serious injury.
Whether good fortune intervenes and prevents harm to workers should not determine whether an employer commits a crime. Congress should make it a felony to commit a criminal violation of the worker-safety laws, and the penalties for lawbreakers should be stiffened. The maximum sentence ought to be measured in years, not months.
Congress also should change the worker-safety laws so that ignorance of the law is no longer a defense. Employers have a duty to know their responsibilities under the Occupational Safety and Health Act.
Finally, Congress should make clear who can be prosecuted. Some courts have held that prosecution is limited to companies and their owners. Supervisors, who order workers to break the law, as well as responsible corporate officers who fail to stop violations that they know are occurring, should also be held criminally responsible, just as they are under most other federal laws.
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