Posted with permission from Confined Space, a newsletter of workplace safety and labor issues.
Nothing sharpens the mind like the prospect of spending time in jail.
Those of you who know me know that there’s little that makes me more angry than seeing a worker killed in a trench collapse. Every construction company owner knows how to prevent trench collapses — or they should know, or shouldn’t be in business.
So, although I understand there are legal issues, due process rights, etc., etc., my preference would be a firm rule: Your employee dies in a trench collapse; you go to jail. Is there any doubt in anyone’s mind that employers would pay more attention to trench safety if faced by years in jail versus a $50,000 fine?
So it warms my heart a bit to read that the King County (Washington) Prosecuting Attorney’s Office has filed criminal manslaughter charges last week against Phillip Numrich, the owner of Alki Construction in Seattle. Numrich is accused of criminal negligence for the January 2016 death of 36-year-old Harold Felton who was buried in an 7-8 foot deep trench at a West Seattle house as he worked to re-connect a new sewer line to the residence. (OSHA’s standard require trenches over 5-feet deep to be protected.) The original fine, which included one willful violation, was totaled $51,500. Washington runs its own state plan.
|“There are times when a monetary penalty isn’t enough” — Washington Labor and Industries Director Joel Sacks|
This is the first time a Washington employer has faced felony charges for a workplace fatality, according to the Washington state Department of Labor & Industries (L&I).
What’s the Significance?
A few things make this case noteworthy. Although the Occupational Safety and Health Act contains provisions for criminal prosecution, a conviction is only a misdemeanor, not a felony. In order to move forward with a criminal prosecution, the Department of Justice has to agree to take the case, something they are often reluctant to do if the outcome of a conviction is a mere misdemeanor.
|The felony charges show that employers can be held criminally accountable when the tragedy of a preventable workplace death or injury occurs.” –Joel Sacks|
According to data compiled by the AFL-CIO, since the passage of the act in 1970, only 93 cases have been prosecuted under the act, with defendants serving a total of 110 months in jail. By comparison, the Environmental Protection Agency reported in FY 2016 that there were 170 criminal enforcement cases initiated under federal environmental laws and 184 defendants charged, resulting in 93 years of jail time and $207 million in fines and restitution—more cases, fines and jail time in one year than during OSHA’s entire history.
During the Obama administration, the Department of Labor stepped up criminal enforcement efforts, and OSHA and the Department of Justice agreed to work much more closely to coordinate their efforts on cases involving potential criminal prosecution for worker safety. It remains unclear how aggressive the Trump Administration will be on criminal prosecutions, although Secretary of Labor Acosta has expressed his willingness to pursue criminal prosecutions.
So, it is heartening to see local prosecutors picking up the role of prosecuting cases like this.
More Information on Trench Safety
One cubic yard of soil can weigh as much as a car and dirt walls can collapse suddenly without any warning, burying the victims instantly. Washington State requires that sites four-feet deep or more have protective systems in place to prevent the dirt sides from caving in. (Federal OSHA’s requirement kicks in at 5 feet.)
“Among other requirements, employers must also make sure there are ladders, ramps or other ways available to safely exit an excavated trench. And there must be daily inspections of excavations to monitor changing soil conditions. Alki violated these and other workplace safety requirements.”
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