California is alone among states and the federal government in its aggressive prosecution of employers for workplace deaths, the New York Times reports. Long before Congress created the federal Occupational Safety and Health Administration (OSHA) in 1970, California had workplace safety standards. It is one of 21 states that run their own versions of OSHA. Its powerful labor leaders and big-city prosecutors long have used prominent workplace deaths to win stronger enforcement powers for the state agency, known as Cal OSHA.
In federal law, it is a misdemeanor to commit safety violations that kill workers. The maximum penalty is six months in jail and a $500,000 fine. But after a deadly refinery explosion in 1999, California made that offense a felony, carrying a maximum sentence of three years in prison and a $1.5 million fine.
The Times says that every workplace death or serious injury in California is investigated with an eye to potential prosecution. That work is done by a special unit, mostly former police officers, whose members are required to refer every death to prosecutors if there is credible evidence of a deliberate safety violation.
Federal law sets a more exclusive standard: only the most egregious workplace deaths – those caused by an employer’s “willful” safety violations — are sent to the Justice Department. The Times found in an eight-month examination of workplace death that even those worst cases, the federal OSHA rarely seeks prosecution.
California has prosecuted more employers for safety violations than all states with similar programs combined, The Times found. At the same time, its workplace death rate is substantially lower than that in the rest of the nation.
Most California prosecutions take place in Los Angeles, San Francisco, and other large cities whose district attorneys have the resources and political will. In small rural counties, district attorneys have been as reluctant as the rest of the country to pursue what are often technical, time-consuming, and politically sensitive prosecutions.
Roy Hubert and a small band of roving prosecutors try to rectify the pattern of uneven enforcement. Called the Circuit Prosecutor Project, they work from the offices of the California District Attorneys Association in Sacramento, under the direction of Gale Filter, a man who combines a prosecutor’s cold-eyed pragmatism with a reformer’s messianic zeal. Filter, a former prosecutor in Southern California, joined the project in 1999, soon after it was established to help district attorneys in 34 rural counties enforce environmental laws. He has since expanded to worker safety. He told the Times of his desire to stand up for migrant workers, illegal immigrants and others who hold neither power nor influence. “Who vindicates their rights?” he asked.
He also wants to shape the legal values of communities that resist thinking of workplace deaths as potential crimes. The project has brought cases against a farmer whose worker was cut to pieces in a corn harvester, a gold miner a whose employee’s head was pinched off by an ore chute, and the general manager of a firm responsible for a tank explosion that killed one worker and left another with third-degree burns over most of his body. “I like to think we’re challenging the system, and I like to think that by doing that we’re challenging the mores of society,” Filter said. “I suppose you could say we’re opportunists, but I don’t mind.”