Workplace safety violation as violent crime? Employer jailed for workplace death

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In a bit of good news, former OSHA official Jordan Barab, blogged about a Washington employer who will serve jail time in connection with the death of an employee.

Alki Construction company owner, Phillip Numrich, will serve 45 days in jail, pay a $100,000 fine and agree to change business practice after pleading guilty to attempted reckless endangerment. The plea was in connection with the death of 36 year-old Harold Felton in a trench collapse in 2016.

King County prosecutors originally charged Numrich with second-degree manslaughter. Numrich was also fined by the Washington Department of Labor and Industry for the injury before criminal charges were filed.

I think this criminal prosecution is a positive development for injured workers for many reasons that I will spell out below.

Deterrence for employers – Workers’ compensation pays limited benefits to employees in exchange from them not having to prove employer fault. For the most part, I think this is a good deal for employees. But employees who get injured when their is clear fault on their employer think otherwise. They feel, somewhat legitimately, that their employer isn’t being held to account.

Now, OSHA or state agencies can fine employers for safety violations. But those fines are usually fairly small and employers sometimes don’t pay these fines . In the Washington case, the state fine was $25,750.

But the threat of prison time for workplace safety violations increases the risk for employers. I also like criminal liability as it leaves the no-fault aspect of workers’ compensation undisturbed. By that I mean, employees who are injured because their employer was at fault often don’t understand why they can’t sue them for negligence. But if fault analysis starts creeping in to how work injuries are compensated employees who may have been at-fault aren’t compensated.

Criminal liability for safety violations short-circuits that discussion. Employers are punished in the criminal justice system.  Victims of workplace safety violation usually want financial compensation. But criminal cases can involve financial restitution. I don’t know the details of the Washington case, there is no reason why a criminal sanction for a workplace death could not involve financial restitution for harms caused to a family.

Deterrence part 2, fines: The Washington case also involved a $100,000 fine. That amount seems fair and reasonable for the loss of a life. Back in 2019, I wrote about courts striking down excessive fines against employers for not carrying workers’ compensation insurance as unconstitutional.  I believe a different analysis applies to fine levels for a violent crime versus a financial crime.  I could certainly see a court strike down a $100,000 fine for not carrying workers’ compensation insurance as excessive, I can’t see a court striking down a $100,000 fine for a death.

Fairness to employees – In 2019, I wrote that I preferred civil remedies to criminal remedies for workers’ compensation fraud. On the balance I think that employees are more vulnerable to fraud convictions than employers. I don’t think the same analysis applies to workplace deaths. Employers control or should control the conditions of their workplace in a way that employees don’t. Employers are granted near dictatorial powers in the workplace, but with great power comes great responsibility.

More criminal prosecutions for workplace deaths? Even in Nebraska? Barab concluded his post with a list of prosecutors who had prosecutors who have prosecuted employers for workplace deaths. Could this national trend come to Nebraska? So far, I haven’t seen it, but that may change if Adam Morfeld is elected as Lancaster County attorney and or if Dave Pantos is elected as county attorney in Douglas County. I haven’t heard the candidates address the issue, but I am acquainted with both candidates. My impression is that Morfeld might be persuaded into prosecuting an employer, but I think Pantos would require less persuading to bring charges.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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