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Stronger Penalties Needed for Worker Endangerment Violations

David Uhlmann is a law professor at the University of Michigan and author of the article, “Prosecuting Worker Endangerment: The Need for Stronger Criminal Penalties for Violations of the Occupational Safety and Health (OSH) Act.” In this interview, Uhlmann explains his motivation for writing the article and offers his suggestions for improving current criminal provisions of U.S. worker safety laws.

Please provide a brief description of your professional background and of your positions as the Jeffrey F. Liss professor from practice and the director of the environmental law and policy program at the University of Michigan Law School.

For the last two years, I have taught environmental law, environmental crimes, and advanced environmental law at the University of Michigan Law School. I also have been responsible for revamping Michigan’s environmental law curriculum, planning a conference focused on the environmental agenda for the new administration and launching an environmental law lecture series. Prior to my current position, I worked for 17 years in the U.S. Department of Justice’s environmental crimes section.

At the Justice Department, I was a trial attorney and a senior trial attorney for eight years, an assistant chief for two years, and then Chief of the Environmental Crimes Section for seven years. During my tenure as Chief of the Environmental Crimes Section, we started a worker endangerment initiative targeting environmental crimes that resulted in worker injuries and deaths.

What prompted you to write the article “Prosecuting Worker Endangerment: The Need for Stronger Criminal Penalties for Violations of the Occupational Safety and Health (OSH) Act”?

The weakness of the criminal provisions of the OSH Act is appalling. We have many challenges in the U.S. today, but we have no excuse for having such inadequate criminal provisions of our worker safety laws.

If an employer commits a willful violation of worker safety laws and an employee dies as a result, the employer only can be charged with a six-month misdemeanor. If the employee is seriously injured but survives, the employer cannot be prosecuted criminally at all. This sends a terrible message about how we value our workers and the degree to which their health and safety matter to us. We have to be able to do better in the U.S.

What aspects of your research indicate a link between stronger criminal penalties for violations of the OSH Act and reduced occupational accidents, injuries and fatalities?

For better or worse, compliance with regulations is greater when penalties for violation of those laws are greater. Most companies in the U.S. care about meeting their legal obligations and do what the law requires, whether it is worker safety laws, environmental laws, or securities laws, to name a few.

However, there will always be some companies that may be willing to skirt the law, particularly if they think the consequences will not be great if they are caught. It is not the best comment on human nature, but sometimes people need to be scared of what will happen if they do something wrong (if we want to ensure that they do things the right way). This is true across all federal, state, and local regulatory programs. Stronger penalties promote greater compliance.

In a corporate context, it is important that there be strong sanctions for corporate officials who knowingly engage in misconduct. If corporate officials are not responsible or sent to jail, then corporate misdeeds become just another cost of doing business. Corporate profits take priority over worker safety laws.

In your opinion, how can current criminal provisions of worker safety laws be improved?

Many changes should be made. First, criminal violations should be felonies, and the penalties should be greater. Second, criminal violations should be expanded to include cases where workers are seriously injured and also cases where workers are placed in imminent danger of death or serious bodily injury. Third, the mental state requirements should be changed so that ignorance of law is no longer a defense in worker safety crimes. Employers should be obligated to know what the rules are in the worker safety context and should not be able to defend against criminal liability by saying that they did not realize that what they were doing was wrong.

These changes would enable the criminal provisions of our worker safety laws to be comparable to the criminal provisions of our environmental laws, food and drug laws, and securities laws. We ensure that our food supply is safe, and we also provide for the integrity of our financial markets—there is no reason why worker safety and protecting the environment should be any less of a priority.

Your article mentions that criminal provisions of environmental laws are stronger than criminal provisions of worker safety laws. What do you believe is the cause of this imbalance?

All of the regulatory programs we have discussed were enacted in the 1970s. When the programs began, criminal provisions were misdemeanors. Since the 1970s, Congress has amended most of the environmental statutes to make criminal violations of those laws felonies. Congress has taken similar action for other regulatory programs. The OSH Act is the exception; its criminal provisions have not been amended since it was enacted nearly 40 years ago.

It is hard to say why we have neglected our worker safety laws even as we have made progress in other areas. Perhaps it reflects the strength of corporate interests in Congress, changes in the labor movement, or a lack of sufficient lobbying efforts on workers’ behalf. Whatever the reasons, it is long past time to make changes to the OSH Act and to meet the promise of a safe place to work for all Americans.

Did your research for this article yield any new or surprising information regarding the OSH Act and its requirements?

Unfortunately, it is not news that the OSH Act is weak at least in the area of enforcement and penalties. The protections provided by our worker safety regulations are laudable. While there are ways we can improve our worker safety regulations, they go beyond what many countries require and set forth requirements that should lead to injury prevention and overall enhancements in worker safety.

However, having strong rules is only half the equation. The other half is strong penalties for violations of the rules. We have very weak penalties for OSH Act violations, and that is something that must be changed.

Have you presented your article to OSHA, and if so, how has the agency responded?

I have not spoken with OSHA officials about the proposals made in my article. I would expect the new administration to support stronger criminal penalties of worker safety laws. During my time at the U.S. Justice Department, I had many opportunities to discuss with OSHA officials the shortcomings of the criminal provisions of our worker safety laws. The senior career officials who serve as OSHA regional and area administrators uniformly supported increased enforcement and stronger penalties, as did their field inspectors and other regulatory personnel. But political support is needed as well.

Did your law students contribute to the research for your article? What are their views on current worker safety laws?

My students have learned about the government’s worker endangerment initiative, and they share my view that stronger penalties for worker safety crimes are essential. They are amazed that a country like the U.S. does so little to make good on the promise of a safe workplace. They marvel at the fact that an individual who shoots a deer out of season faces a more significant jail sentence than an employer who willfully commits violations of the worker safety laws.

Based on your legal experience, do you believe any other OSHA rules, regulations or provisions should be reformed?

We have just completed eight years of an administration that paid little attention to worker safety and did nothing to advance reform of the OSH Act. My focus is on the need for stronger criminal penalties, so for now I will let others comment about how the underlying regulations could be improved and made stronger.

Are you conducting any other research on worker safety laws or do you plan to do so in the future?

I am hopeful that Congress will make changes to the criminal provisions of our worker safety laws within the next year. I will be testifying about the need for reform at a House Committee on Education and Labor hearing during April 2009, and I plan to work with House and Senate staff members to help address the shortcomings of the OSH Act. If it appears that additional research and scholarship efforts would be helpful in promoting changes to the law, I would be happy to conduct additional research. From my perspective, however, the time for studying the problem is over: it is time for Congress to act.

Biography

David Uhlmann is the Jeffrey F. Liss professor from practice and the inaugural director of the environmental law and policy program at the University of Michigan Law School. His research, writing and advocacy interests include criminal and civil enforcement of environmental laws, Clean Water Act and Clean Air Act jurisprudence, efforts to address global climate change, and criminal enforcement of worker safety laws.

Since joining the University of Michigan faculty in 2007, Uhlmann has published articles in The Environmental Law Forum, The New York Times and the American Constitution Society’s Issue Briefs series. He is also the co-author of an article regarding global climate change in the Stanford Environmental Law Journal with Professor Reuven Avi-Yonah.

Prior to joining the faculty, Uhlmann served for seven years as chief of the U.S. Department of Justice environmental crimes section, where he was the top environmental crimes prosecutor in the U.S. He led an office of approximately 40 prosecutors responsible for the prosecution of environmental and wildlife crimes nationwide. He coordinated national legislative, policy, and training initiatives regarding criminal enforcement and chaired the Justice Department’s Environmental Crimes Policy Committee. He also served as vice chair of the annual ABA Environmental Law Conference and on the planning committee for the ALI-ABA Criminal Enforcement of Environmental Laws Seminar.

Uhlmann previously served for seven years as a trial attorney and senior trial attorney and for three years as an assistant chief in the environmental crimes section. During his tenure with the Justice Department, Uhlmann prosecuted environmental crimes and tried Clean Water Act, Resource Conservation and Recovery Act and Clean Air Act cases throughout the U.S. He was the lead prosecutor in U.S. v. Elias, chronicled in The Cyanide Canary. The defendant was convicted at trial of knowing endangerment, illegal disposal of hazardous waste and making false statements for actions that left a 20-year-old Idaho man severely and permanently brain-damaged. Until recently, the 17-year prison sentence that resulted was the longest sentence ever imposed in the U.S. for environmental crimes.

Uhlmann holds a J.D. from Yale Law School and a B.A. in history from Swarthmore College.