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S. HRG. 110–895 

WHEN A WORKER IS KILLED: DO OSHA 

PENALTIES ENHANCE WORKPLACE SAFETY? 

HEARING 

OF THE

COMMITTEE ON HEALTH, EDUCATION, 

LABOR, AND PENSIONS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

ON

EXAMINING THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, FOCUSING ON PENALTIES RELATED TO WORKPLACE SAFETY 

APRIL 29, 2008 

Printed for the use of the Committee on Health, Education, Labor, and Pensions 

( 

Available via the World Wide Web: http://www.gpoaccess.gov/congress/senate 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS 

EDWARD M. KENNEDY, Massachusetts, Chairman 

CHRISTOPHER J. DODD, Connecticut 

TOM HARKIN, Iowa 

BARBARA A. MIKULSKI, Maryland 

JEFF BINGAMAN, New Mexico 

PATTY MURRAY, Washington 

JACK REED, Rhode Island 

HILLARY RODHAM CLINTON, New York 

BARACK OBAMA, Illinois 

BERNARD SANDERS (I), Vermont 

SHERROD BROWN, Ohio 

MICHAEL B. ENZI, Wyoming, 

JUDD GREGG, New Hampshire 

LAMAR ALEXANDER, Tennessee 

RICHARD BURR, North Carolina 

JOHNNY ISAKSON, Georgia 

LISA MURKOWSKI, Alaska 

ORRIN G. HATCH, Utah 

PAT ROBERTS, Kansas 

WAYNE ALLARD, Colorado 

TOM COBURN, M.D., Oklahoma 

J. MICHAEL MYERS, Staff Director and Chief Counsel 

ILYSE SCHUMAN, Minority Staff Director 

(II) 

C O N T E N T S 

STATEMENTS 

TUESDAY, APRIL 29, 2008 

Page 

Kennedy, Hon. Edward M., Chairman, Committee on Health, Education, 

Labor, and Pensions, opening statement ........................................................... 1 

Prepared statement .......................................................................................... 3 

Enzi, Hon. Michael B., a U.S. Senator from the Stat8e of Wyoming, opening 

statement .............................................................................................................. 5 

Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia, statement .... 8 

Murray, Hon. Patty, a U.S. Senator from the State of Washington, statement 9 

Prepared statement .......................................................................................... 10 

Seminario, Peg, Director of Safety and Health, AFL–CIO, Washington, DC ..... 12 

Prepared statement .......................................................................................... 13 

Uhlmann, David, Director of the Environmental Law and Policy Program, 

University of Michigan Law School, Ann Arbor, MI ......................................... 26 

Prepared statement .......................................................................................... 28 

Hayes, Ron, Director, Fight Project, Fairhope, AL ............................................... 35 

Prepared statement .......................................................................................... 37 

Smith, Donald Coit, Resident, Temple, TX ............................................................ 38 

Prepared statement .......................................................................................... 40 

Jenson, George III, Owner, Jenson Fire Protection, Inc., Ellicott City, MD ...... 42 

Prepared statement .......................................................................................... 44 

ADDITIONAL MATERIAL 

Statements, articles, publications, letters, etc.: 

Senator Obama ................................................................................................. 56 

Textile Rental Services Association of America (TRSA), letter .................... 58 

(III) 

(1) 

WHEN A WORKER IS KILLED: DO OSHA 

PENALTIES ENHANCE WORKPLACE SAFETY? 

TUESDAY, APRIL 29, 2008 

U.S. SENATE, 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS, 

Washington, DC. 

The committee met, pursuant to notice, at 10:01 a.m., in Room 

SD–430, Dirksen Senate Office Building, Hon. Edward M. Kennedy, chairman of the committee, presiding. 

Present: Senators Kennedy, Murray, Enzi and Isakson. 

OPENING STATEMENT OF SENATOR KENNEDY

The CHAIRMAN. We will come to order. 

This is our first hearing that we have had since my friend and 

colleague, Mike Enzi, announced that he was going to run for reelection in the State of Wyoming, and I wished him well. I am 

going to wish him well today. I do not know how long in the year 

I will continue to wish him well. Not sufficiently well so he will 

ever gain chairmanship of this committee again. 

[Laughter.] 

But we are always delighted to have a chance to work with him, 

and we do wish you all the best, Mike. You kept everybody in suspense here. Some of us were crossing our fingers and uncrossing 

them over time. 

This morning our committee considers the important issue of 

keeping the hard-working men and women of America safe on the 

job. 

Last year 5,840 workers went off to work and never came back. 

They were killed on the job. Each of these deaths is a tragedy for 

workers and their families. We should be doing more to respond to 

these tragedies by granting greater protection for the Nation’s 

workers. Unfortunately, OSHA seems to be doing less. 

Julie Primeau’s family in Fitchburg, MA, is an example of a family changed forever by such a tragedy. Last year her brother Christopher, a commercial diver, was killed on the job when a 9-ton piling came loose and crushed him. As Julie learned later, two divers 

had previously been killed working for the same employer. Julie 

and her mother were devastated by Christopher’s death, but their 

grief was intensified by OSHA’s failure to prevent it after two earlier deaths. 

My office has issued a report today that OSHA is not living up 

to its responsibility for investigating dangers in the workplace and 

preventing them. The report shows, for example, that the median 

2 

penalty for a workplace fatality last year was only $3,675. In other 

words, in cases investigated by OSHA where workers were killed 

on the job, half of all employers were fined less than $3,675. 

Workers’ lives are obviously worth more than that. Employers 

who ignore their employees’ safety should pay a penalty that will 

force them to change their negligent ways. It is the only realistic 

way to save lives. A mild slap on the wrist is not enough. The maximum civil penalty for a safety violation is only $70,000. 

By comparison, violating the South Pacific Tuna Act of 1988 can 

lead to a fine of $325,000. Protecting tuna fisheries is important, 

but so is safeguarding workers’ lives and we need to raise OSHA’s 

penalties if we hope to deter unsafe working conditions. 

Unbelievably, the report also found that OSHA routinely downgrades the severity of violations or withdraws the violations entirely in the course of its investigating and often does not bother 

to collect the penalties it issues. In many cases where a worker is 

killed, the employer never has to pay anything. How can we expect 

workplaces to become safer if OSHA will not bother to collect fines 

from employers who break the law? 

Also, OSHA cannot effectively use the threat of prison as a deterrent because the maximum criminal penalty, when an employer 

willfully violates workplace safety laws and a worker dies, is 6 

months in jail. If you improperly import an exotic bird, you can go 

to jail for 2 years. If you deal in counterfeit money, you are looking 

at 20 years. But if you gamble with the lives of your employees and 

one of them is killed, you risk only 6 months in jail. No wonder of 

the 10,000 fatalities that OSHA has investigated in the past 5 

years, only 10—only 10—criminal prosecutions have resulted. That 

is why so many companies treat safety violation as another cost of 

doing business. 

What frustrates families like Julie Primeau is the knowledge 

that these tragic and needless deaths will continue. If we are serious about improving workplace safety, we need to raise penalties, 

create a serious threat of criminal prosecution in the worst cases. 

The point of a penalty is not retribution but deterrence. Deterrence 

is the only way to solve this problem. 

OSHA cannot detect and correct every violation. It would take 

OSHA 133 years to inspect every work site in its jurisdiction. Instead, we need a law with teeth so that employers will be vigilant 

about complying with safety laws. That should not be controversial. 

Experts from across the political spectrum agree, including Jerry 

Scannell who led OSHA during the first Bush administration. As 

he told our committee earlier this month, we need to increase the 

penalties and strengthen the criminal sanctions or we will never 

persuade CEO’s to take OSHA and workplace safety seriously. 

A number of us have introduced the Protecting America’s Workers Act to give OSHA the support it needs to change employers’ behavior. It makes reasonable increases in civil penalties, especially 

in the most serious cases. It also creates a strong criminal penalty, 

including the possibility of felony charges and significant prison 

terms. 

Finally, we must help families frustrated by being left out of the 

process. Every year too many families get letters like the one the 

Primeau family received. They feel excluded and disrespected. SenVerDate Nov 24 2008 14:56 Nov 10, 2009 Jkt 035165 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\DOCS\42210.TXT DENISE
3 

ator Isakson and I have offered an amendment to the Budget Act 

this year to require OSHA to give families a voice. 

The problem of worker fatalities is not going away. As the economy continues its decline, the pressure on American workers to increase productivity is growing. Achieving higher production often 

means cutting corners on safety. We all know where that leads: 

more accidents, more injuries, more deaths. 

Even in these difficult economic times, workers deserve to have 

their safety put first. This committee is committed to worker safety. 

We have an outstanding panel of witnesses here today, and I 

look forward to their testimony. 

Just before recognizing Senator Enzi, I will just show these 

charts here which illustrate the points that I was making earlier. 

This is a willful violation causing a fatality, $70,000. South Pacific 

Tuna Act is $325,000. Clean Air Act violation is $270,000. Willful 

violations for the Fluid Milk Promotion Act is $130,000. 

Not only are the penalties weak but the enforcement is too. If 

you look at what has happened with the enforcement—so you have 

weak penalties and then weaker enforcement—you see the decline. 

The initial penalty, $5,900. Then it went down $2,225. So the final 

penalty is $3,675. So we see that the supervisors cut the initial 

penalties. That is in the civil area. 

Now, if you look in the criminal area, it is just about the same. 

You have willful causing of worker’s death, 6 months. And then you 

have unlawful hunting of migratory birds, 2 years; counterfeiting, 

20; mail fraud, 30; piracy on the high seas, life. Here it is the loss 

of a life, willfully causing a worker’s death. Willful, 6 months. 

And finally, this chart here which is sort of a summation of what 

happens. You have the OSHA fatality inspections. Between 2003 

and 2008, it is 9,800. That is over the 5-year period. Now, of the 

willful violations eligible for referral, it is 237 made by OSHA. 

Cases OSHA referred to DOJ for criminal prosecution, of the 237, 

only 50. And the cases prosecuted by the Department of Justice 

over that 5-year period, 10. So this is a rather fierce indictment. 

The conclusion one has to reach—as one who was here at the 

time the OSH Act was passed and has seen the difference when we 

have good enforcement and an effective law—is that, boom, the 

numbers just go down like a stone. The violations go down. The 

loss of lives go down. Then when there is a relaxation of enforcement, we find out what happens out there in the workforce. 

So this is an important hearing and we are very grateful for our 

witnesses. 

[The prepared statement of Senator Kennedy follows:] 

PREPARED STATEMENT OF SENATOR KENNEDY

This morning our committee considers the important issue of 

keeping the hard-working men and women of America safe on the 

job. 

Last year, 5,840 workers went off to work and never came back. 

They were killed on the job. Each of these deaths is a tragedy for 

workers and their families. We should be doing more to respond to 

these tragedies by granting greater protection for the Nation’s 

workers. Unfortunately, OSHA seems to be doing less. 

4 

Julie Primeau’s family in Fitchburg, MA is an example of a family changed forever by such a tragedy. Last year, her brother Christopher, a commercial diver, was killed on the job when a nine-ton 

piling came loose and crushed him. As Julie learned later, two 

other divers had previously been killed working for the employer. 

Julie and her mother were devastated by Christopher’s death. 

But their grief was intensified by OSHA’s failure to prevent it after 

the two earlier deaths. 

My office has issued a report today that OSHA is not living up 

to its responsibility for investigating dangers in the workplace and 

preventing them. The report shows, for example, that the median 

penalty for a workplace fatality last year was only $3,675. In other 

words, in cases investigated by OSHA where workers were killed 

on the job, half of all employers were fined $3,675 or less. Workers’ 

lives are obviously worth far more than that. Employers who ignore 

their employees’ safety should pay a penalty that will force them 

to change their negligent ways. It’s the only realistic way to save 

lives. A mild slap on the wrist isn’t enough. The maximum civil penalty for a safety violation is only $70,000. 

By comparison, violating the South Pacific Tuna Act of 1988 can 

lead to a fine of $325,000. Protecting tuna fisheries is important, 

but so is safeguarding other workers’ lives, and we need to raise 

OSHA’s penalties if we hope to deter unsafe working conditions. 

Unbelievably, the report also found that OSHA routinely downgrades the severity of violations or withdraws the violations entirely in the course of its investigating, and often doesn’t bother to 

collect the penalties it issues. In many cases where a worker is 

killed, the employer never has to pay anything. How can we expect 

workplaces to become safer if OSHA won’t bother to collect fines 

from employers who break the law? 

Also, OSHA can’t effectively use the threat of prison as a deterrent, because the maximum criminal penalty when an employer 

willfully violates workplace safety laws and a worker dies is 6 

months in jail. If you improperly import an exotic bird, you can go 

to jail for 2 years. If you deal in counterfeit money, you’re looking 

at 20 years. But if you gamble with the lives of your employees and 

one of them is killed, you risk only 6 months in jail. No wonder 

that of the 10,000 fatalities OSHA has investigated in the past 5 

years, only 10 criminal prosecutions have resulted. 

That’s why so many companies treat safety violations as just another cost of doing business. What frustrates families like Julie 

Primeau’s is the knowledge that these tragic and needless deaths 

will continue. 

If we’re serious about improving workplace safety, we need to 

raise penalties and create a serious threat of criminal prosecution 

in the worst cases. The point of a penalty is not retribution, but 

deterrence. Deterrence is the only way to solve this problem. OSHA 

can’t detect and correct every violation. It would take OSHA 133 

years to inspect every worksite in its jurisdiction. Instead, we need 

a law with teeth, so that employers will be vigilant about complying with safety laws. 

That shouldn’t be controversial. Experts from across the political 

spectrum agree, including Gerry Scannell, who led OSHA during 

the first Bush administration. As he told our committee earlier this 

5 

month, we need to increase the penalties and strengthen the criminal sanctions, or we’ll never persuade CEO’s to take OSHA and 

worker safety seriously. 

A number of us have introduced the Protecting America’s Workers Act to give OSHA the support it needs to change employers’ behavior. It makes reasonable increases in civil penalties—especially 

in the most serious cases. It also creates a strong criminal penalty, 

including the possibility of felony charges and significant prison 

terms. 

Finally, we must help families frustrated by being left out of the 

process. Every year, too many families get letters like the one the 

Primeau family received. They feel excluded and disrespected. Senator Isakson and I offered an amendment to the budget this year 

to require OSHA to give families a voice. 

The problem of workplace fatalities isn’t going away. As the economy continues its decline, the pressure on America’s workers to increase productivity is growing. Achieving higher production often 

mean cutting corners on safety. We all know where that leads— 

more accidents, more injuries, and more deaths. Even in these difficult economic times, workers deserve to have their safety put 

first. 

This committee is committed to worker safety. We have an outstanding panel of witnesses here today, and I look forward to their 

testimony. 

The CHAIRMAN. I will recognize Senator Enzi. 

OPENING STATEMENT OF SENATOR ENZI

Senator ENZI. Thank you, Mr. Chairman. I appreciate your kind 

comments before the official start. I too look forward to working 

with you. 

I appreciate your scheduling today’s hearing. It is a very important topic. As the title of this hearing indicates, much of today’s 

testimony will focus on how employers are punished after a death 

occurs at their worksite and is caused by negligent or even willful 

disregard of safety regulations. I think everyone would agree that 

such an employer should face appropriate sanction. However, I 

think America’s employees would appreciate it even more if the 

hearing were focused on the prevention of all workplace accidents. 

When I was elected to the Senate, the reason I wanted to join 

this committee is I was interested in workplace safety and had run 

some safety programs. And when I first got here, that was the first 

bill I drafted. Being a novice in Washington, I thought that the 

way you did that was kind of the same as in the Wyoming legislature. So I asked members of the committee to sit down with me 

and go through the bill a section at a time. Even the ranking member of the committee, Senator Kennedy, did that. We went through 

that bill a section at a time. I did find out later that that was not 

normal. 

[Laughter.] 

I appreciated all the help, all the comments I got, and as a result 

of that, we made the first eight changes in OSHA since its inception. 

6 

There are a lot of changes that need to be made yet. And there 

are ways that we can work together and do those. There are a lot 

of things that I proposed in that original legislation that I will 

bring up again because I am pretty sure that it would cut down 

on the number of deaths and, more importantly, the number of accidents. An accident is a very painful thing for an entire family as 

well. And the only way we are ever going to get at that is to examine the near misses. Sometimes people get away from an accident 

and nobody pays any attention to it. But we ought to be paying attention to those. We ought to be figuring out what caused the near 

miss, as well as an accident, as well as a death, and figuring out 

how we can keep that from ever happening again. 

I know one State had a policy that they encouraged families, as 

the dad or the mom left for work, to say, come home safely. And 

they found that even decreased accidents. 

I want to thank Mr. Hayes for all of the help that he has given 

and the consulting he has given on these issues over the years, and 

I appreciate everyone’s testimony today. 

The experts at the Occupational Safety and Health Administration have developed extensive industry and hazard-specific regulations designed to reduce the risk of workplace injury and death. In 

this day of electronic technology, I am a little disappointed in just 

exactly how that is compiled and how people are able to access it. 

I think there are a lot of different combinations of the numbers 

that would help us get down to the causes of these accidents. 

Mostly these reports, that have to be done by business, have extensive detail in them and are required to hang on bulletin boards 

but are not looked at by anybody. They look too technical. They 

look too bureaucratic. Then after they have been posted, they get 

mailed in. So, far as I can tell, they kind of get filed away at that 

point. We are missing a huge resource that, with today’s technology, could help us cut down on accidents. 

Now, I did notice that the statistics show that the workplace fatalities are decreasing, that is, decreasing as a percentage of per 

100,000 workers. It is an increasing number of deaths, and that is 

because we have more people in the workplace now than we have 

had before. And I do not know which is the best measurement. I 

do not know if it even makes any difference. What we want to do 

is eliminate deaths and injuries. 

Of course, if we have more people coming into the workforce, we 

have people who are less trained, and if they are in a particular 

job for a shorter period of time, there is a greater possibility that 

they will have an accident. There are two ends to that spectrum 

from the numbers that I looked at, and that is the first 6 months 

on the job are the most dangerous, and the time after 5 years is 

the most dangerous. People get a little complacent at some point 

in their work and figure that they know everything about the job, 

and then they have accidents. There is a lot that we can do to reduce that. 

Now, I did notice that only 1 in 4 of the deaths were workplace 

facilities, because many were highway or aircraft-related accidents. 

Our highways are not a very safe place if you have to drive to 

work. I notice that in the Wyoming statistics—and we have a 

record of a lot of fatalities in Wyoming, but most of those occur on 

7 

the highway on the way to work. So we have got to figure out 

something to do on that. 

I was pleased to see that the fatality rates also decreased among 

Hispanic employees, although it remains higher than the other demographic groups. And younger workers also see a significant decrease in fatality rates, and that is the group that considers themselves invulnerable. So that leads to a higher rate by itself. 

Now, despite this progress, more needs to be done to reduce the 

risk of fatalities in workplaces so that no family has to deal with 

the tragic loss of a loved one, as my friend, Ron Hayes, who is sitting on today’s panel, had to do. What strategies work best? Penalties are a part of the equation, but just like the death penalty 

cannot deter every crime, so too is their utility limited. 

When it comes to workplace safety, I am willing to think outside 

the box. Over my career, I have introduced legislation to improve 

compliance with workplace safety and regulations and reward employers who go above and beyond to create a safe work environment. I like incentives. Programs such as the voluntary protection 

programs have been shown to make workplaces safer and save 

money. We should talk about expanding them to smaller employers 

and making them even more effective. 

Workplace drug testing is another important way to reduce risk 

of injury and death in the workplace. I think in my original bill, 

I suggested that anyone at the scene of an accident ought to be 

tested. That should be a part of the investigation. The investigations need to be thorough. 

All of the regulations and required compliance in the world are 

not going to work if an employer or manager disregards them because their judgment is impaired, which was the reason for the 

drug testing portion. I like the idea of the families being involved, 

too. We talked about that with the Sago Mine accident. 

The field of workers compensation in insurance has developed a 

long record of experimentation with strategies to make workplaces 

safer and has some measurable results. Every State creates its own 

workers comp regime. Let us look at the best practices out there 

and determine if there are new ideas that can be translated at the 

Federal level. 

The small business owner who is here today, Mr. George Jenson, 

I am sure will explain the multiple and significant motivations 

every businessman has to want to maintain the safest workplace 

possible. First and foremost, most businesses cannot operate without employees. So keeping them safe and satisfied that they are 

well treated is to the benefit of every employer. 

I think Mr. Jenson will also point out that the insurance coverage he must carry every single day focuses heavily on the company’s safety program. While he has never had an OSHA penalty 

to pay, he is continually motivated by the insurance rates he has 

to pay to put safety first. 

We have a declining workforce in the United States and increasing needs. So I think employers are becoming ever more cognizant 

about the need to keep their employees safe. There will be bad actors and we need to do something about that. 

Finally, I know that this hearing was scheduled to coincide with 

Workers Memorial Day. I certainly join the rest of the committee 

8 

in honoring all the lives that have been lost in workplace accidents 

no matter what the cause. Although the rates are improving overall, the presence of two witnesses today who have lost loved ones 

reminds us that every loss is one too many. By looking seriously 

at the whole issue and by making no subject off limits, we can pay 

them the best tribute of real progress in reducing workplace fatalities. 

Since Chairman Kennedy referenced his staff ’s report, I would 

like to say a word about that too because it just came out yesterday. I have not read it yet, and I doubt any of today’s witnesses 

have either. I understand that it is based on extensive and costly 

data requests from OSHA. Yet, I also understand that OSHA has 

had no opportunity to review and respond to the report’s interpretation of the data. It seems to me that such an opportunity should 

be provided to provide clear and accurate information, give us more 

information, and to be a serious addition to the dialogue on workplace safety beyond political rhetoric. Worker safety is too important of an issue for anything less. 

I welcome today’s witnesses and I look forward to your testimony. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Isakson, do you want to say a brief 

word? You are very much involved in this issue. 

STATEMENT OF SENATOR ISAKSON

Senator ISAKSON. Well, thank you very much, Mr. Chairman. I 

had not planned to, but you know a politician will never pass up 

the opportunity to say something. 

The CHAIRMAN. That is what I was afraid of. 

[Laughter.] 

Senator ISAKSON. Let me just, first of all, welcome all of our witnesses and reiterate what both the Chairman and the Ranking 

Member have said. Our first and foremost, primary obligation is for 

workplace safety. 

Let me also observe that I ran a company for 33 years. It was 

a major sales organization, but I also operated two golf courses 

that had a lot of high-risk jobs, heavy equipment, people on the development side. I got up every morning recognizing that if I had 

an accident or I had a worker hurt, it was not in the best interest 

of the worker, but it sure as heck was not in the best interest of 

the company either. We spent as much time or more focusing on 

safety than any other single thing. 

So we want to do everything we can to prevent any accident from 

happening, but I know personally how hard business owners and 

operators work for the safety of their employees. I used to say that 

all my assets had two legs and they could walk out the door in a 

second either because of pay or because of security or because of 

safety. And that, in the end, is the best motivation we could possibly have. 

The last thing I will point out—again, this is not to minimize 

anything because we are here to talk about the 4.0 per 100,000 fatalities in the workforce in 2006. But as a rate, that is the lowest 

in history. It has declined from 5.3 in 1994 per 100,000 FTE to 4.0. 

My goal is to accelerate that to get it to 0. 

9 

Thank you very much, Mr. Chairman. 

The CHAIRMAN. Thank you very much. 

Senator Murray has been a leader in this whole area on our committee as well. If she wants to make a comment, we always value 

her suggestions and ideas. 

STATEMENT OF SENATOR MURRAY

Senator MURRAY. Thank you very much, Mr. Chairman, and 

thank you for holding this hearing today. I want to thank all of the 

witnesses for being here as well. 

Yesterday was Workers Memorial Day, and today we remember 

and honor those who have lost their lives on the job. I want to extend a special welcome to the witnesses with us today who have 

lost family members to tragedies on the job, and they are going to 

testify to us today about their experiences with OSHA and their 

fight for better workplace safety policies. 

I think, Mr. Chairman, that all of us here share the very same 

goal, to ensure that every worker who goes to work returns home 

safely to his or her family at the end of the day. But as we know, 

tragically thousands of workers are killed and millions more become hurt or sick each year on the job. In far too many of those 

cases, the cause of death or injury was preventable. According to 

the AFL-CIO’s 2000 report on workplace injuries and illnesses, the 

number of deaths on the job has risen over the last year especially 

among Hispanic workers. We know that the most recent job fatality 

data shows that there were 5,840 fatal workplace injuries in 2006. 

That is up from 5,734 the year before. Among Hispanics, the fatality rate was 25 percent higher than that for other workers. On average, 16 workers died every day in 2006, and more than 11,000 

were injured or made sick on the job. 

Mr. Chairman, Monday was also the 37th anniversary of the Occupational Safety and Health Administration, which was created, 

we know, to ensure workplace safety laws and regulations to protect our workers on the job. I wish that we were here today to celebrate how OSHA is effectively holding employers accountable for 

maintaining safe working conditions, but I think the disturbing reality is that OSHA is not yet living up to its mission to make workers safer on the job. In the last year, we have held several hearings 

examining OSHA’s performance and from my first oversight hearing on OSHA a year ago to the hearing I held on dangerous industries earlier this month, evidence shows us that for the last 7 

years, OSHA has been dangerously ineffective. 

I am concerned that OSHA’s enforcement strategy relies too 

heavily on voluntary employer compliance programs, and I am 

deeply concerned the fines that have been issued are far too weak. 

Records from last year show that the average OSHA penalty after 

a worker died on the job was just $10,133 nationwide. And the penalty for willful violations was just $36,720, about half the maximum allowable. 

So we know that OSHA is not as strong as it could be and should 

be if employers are able to consider the rules optional and if they 

believe that fines are just part of the cost of doing business. 

Now, Mr. Chairman, I have more that I would like to submit for 

the record from my opening statement. 

10 

But I look forward to hearing our witnesses’ testimony today, 

and I thank you, Mr. Chairman, for your leadership in trying to 

move us to a better direction. Thank you. 

[The prepared statement of Senator Murray follows:] 

PREPARED STATEMENT OF SENATOR MURRAY

Thank you, Mr. Chairman, for holding this hearing. And, thanks 

to our witnesses for being here this morning. Yesterday was Workers’ Memorial Day, a day we remember and honor those who have 

lost their lives on the job.

So I want to extend a special welcome to the witnesses with us 

today, who have lost family members to tragedies on the job, and 

who will testify about their experiences with OSHA and their fight 

for better workplace safety policies. 

Mr. Chairman, each of us here shares the same goal—to ensure 

that every worker returns home safely to his or her family at the 

end of each day. 

But tragically, thousands of workers are killed and millions more 

become hurt or sick each year on the job. In far too many of those 

cases, the cause of death or injury was preventable. 

According to the AFL–CIO’s 2008 Report on Workplace Injuries 

and Illnesses, the number of deaths on the job has risen over the 

last year, especially among Hispanic workers. 

The most recent job fatality data show that there were 5,840 

fatal workplace injuries in 2006, up from 5,734 fatalities the year 

before. Among Hispanics, the fatality rate was 25 percent higher 

than that for other workers. On average, 16 workers died every day 

in 2006 and more than 11,000 were injured or made sick on the 

job. 

Mr. Chairman, Monday was also the 37th anniversary of the Occupational Safety and Health Administration, which was created to 

enforce workplace safety laws and regulations, and to protect workers from injury, illness, and death on the job. 

So, I wish we were here today to celebrate how OSHA is effectively holding employers accountable for maintaining safe working 

conditions. 

But the disturbing reality is that OSHA is not living up to its 

mission to make workers safer on the job. 

In the last year, we have held several hearings examining 

OSHA’s performance.

From my first oversight hearing on OSHA a year ago to the hearing I held on dangerous industries earlier this month the evidence 

shows that for the last 7 years, OSHA has been dangerously ineffective. 

I am concerned that OSHA’s enforcement strategy relies too 

heavily on voluntary employer compliance programs.

I am deeply concerned that the fines OSHA has issued against 

bad actors are far too weak.

Records from last year show that the average OSHA penalty 

after a worker died on the job was just $10,133 nationwide. 

The penalty for willful violations was just $36,720, about half of 

the maximum allowable penalty.

11 

OSHA simply cannot be as strong as it could be, and should be, 

if employers are able to consider the rules optional and if they believe that fines are nothing more than a cost of doing business. 

We, in the congressional majority, are not the only ones sounding 

the alarm bell.

At a hearing of my Employment and Workplace Safety Subcommittee earlier this month, the former OSHA director under the 

first President Bush, Jerry Scannell, also said he believes that penalties must be significant to deter bad actors. 

That’s why we’re here today. 

We want to send a clear message that one worker’s death, injury, 

or illness is unacceptable if it’s preventable.

It’s why I have co-sponsored the Chairman’s Protecting America’s 

Workers Act, which amends OSHA to expand coverage, increase 

penalties, and protect whistleblowers. 

It’s why the Chairman and I have asked the GAO to investigate 

whether OSHA is doing enough to ensure employers are accurately 

reporting workplace injuries and illnesses.

Since my hearing last year, I’ve continued to hear stories about 

underreporting, and about OSHA’s lax efforts to ensure that employers are reporting accurately. 

When it comes to the health and safety of American workers, we 

can’t allow OSHA just to take employers at their word.

As policymakers, we must have accurate, sound data in order to 

ensure OSHA is doing its job. 

So I’m looking forward to seeing the results of this investigation. 

Mr. Chairman, I’m proud of the work we have done in this committee to increase oversight of OSHA. 

When it comes to worker safety, we have come a long way in this 

country. 

But clearly, we still have more to do.

Our economy was built on the backs of hard-working Americans. 

And they deserve a government that works as hard as they do 

to keep businesses honest about the dangers they face on the job. 

The CHAIRMAN. Thank you very much, Senator Murray. 

We will now hear from our panel. Peg Seminario, Director of 

Safety and Health, the AFL–CIO. She has served on numerous 

Federal agency and scientific advisory boards, holds an M.S. degree 

in industrial hygiene from the Harvard School of Public Health, 

and a B.A. in biological sciences from Wellesley College. 

Professor David Uhlmann, Director of Environmental Law and 

Policy at the University of Michigan Law School. Prior to joining 

the law school faculty, he was the chief of the U.S. Department of 

Justice’s Environmental Crime Section. While at the Department of 

Justice, Professor Uhlmann created the Worker Endangerment 

Task Force within the Environmental Crimes Section. 

Ron Hayes is founder, with his wife, of Families in Grief Hold 

Together, or FIGHT, an organization that supports families that 

have lost a loved one on the job. He founded the organization after 

his son Patrick was killed in 1995 in an accident in the grain bin 

he was cleaning. 

Don Smith has spent the past 20 years as a workplace safety expert. In 2005, his son, 22-year-old Donald, was electrocuted while 

working in a poultry processing plant. Thank you for being here. 

12 

George Jenson, President of the Jenson Fire Protection, Inc. 

based in Laurel, MD. His company has approximately 10 employees that travel and work on construction projects throughout the 

State of Maryland. 

Welcome, all of you, here. We will start off with Peg Seminario. 

STATEMENT OF PEG SEMINARIO, DIRECTOR OF SAFETY AND 

HEALTH, AFL–CIO, WASHINGTON, DC 

Ms. SEMINARIO. Thank you very much, Senator Kennedy, Senator Enzi, Senator Isakson, and Senator Murray, for holding this 

hearing today, but also thanks to all of you for your leadership over 

the years on this very, very important issue. 

As was pointed out, yesterday was Workers Memorial Day, the 

anniversary of when the OSHA law went into effect. At the time 

OSHA was passed, it did promise workers the right to a safe and 

healthful place of employment, and when you look over the years, 

there has been tremendous progress that has been made as far as 

the reduction in worker deaths in this country. But more recently 

what we have seen is that progress has halted. 

There was new data that came out of BLS about 2 weeks ago 

which gave us a fuller picture of what is going on, and what it 

showed was that workplace fatalities went up in 2006. It showed 

us that the rate did not go down. In fact, if you look over the last 

5 years, the rate has essentially stayed the same. For some groups 

of workers it has gotten worse: Hispanic workers, Latino workers, 

immigrant workers, very, very major increases in workplace fatalities. 

And when you look closer as to what is going on, you also see 

some other things that are quite disturbing. You see that the fatalities from falls, fires and explosions, workers being caught in machinery, crushed, confined spaces. Those kind of fatalities are actually going up. What has been going down are the fatalities due to 

assaults. So the kinds of things that OSHA has standards to deal 

with that can be dealt with—these fatalities can be prevented. We 

have seen an increase in those fatalities in recent years, and to me 

that is quite, quite disturbing. 

So why is this happening? I think one of the reasons it is happening is that we are not doing enough to prevent these fatalities 

at all levels. One of the fundamental problems is that the Occupational Safety and Health Act and its enforcement is really too weak 

to create an incentive to either improve conditions or to deter violations, as has been pointed out by Senator Kennedy. There are not 

any mandatory inspections with OSHA. OSHA is rarely in America’s workplaces. They are there, on average, once every 133 years. 

So that means that having a strong deterrence with enforcement 

is even more important. 

But then we look at the law itself, and it was pointed out the 

maximum penalty for a serious violation of a law is $7,000. The 

maximum penalty for a willful is $70,000. But you look at fatality 

cases, and by far the serious violations are those that are cited. 

And that is where we start. And then the OSHA law allows for and 

OSHA does apply reductions for size, reductions for good faith, reductions for history. And so where you end up in a typical fatality 

case is penalties, as Senator Kennedy said, on average were 

13 

$10,000, but the median penalty, that in the middle as far as half 

the employers having that record of enforcement, is only $5,900 to 

begin with and $3,600 after the fact. 

So what are the kinds of situations that are resulting in those 

kind of fatalities? When you look, you see it is cases such as occurred in Pennsylvania where two sewer workers working for a 

company digging a trench—it was unshored. The contractor was 

cited for a serious violation, cited for a violation of the General 

Duty Clause, no safety training. The initial penalty was only 

$1,500 for the death of two workers. It was settled for $1,000. 

A painting company in New Jersey, a violation for failing to provide fall protection in the death of an immigrant worker. The initial penalty, $2,000; settled to $1,400. 

And the list goes on and on. So that is what happens in typical 

enforcement cases. 

So why is that the case? It is the law. You start with low penalties, you reduce them further, and that is just to begin with, and 

then you settle out the cases for even less. 

There has been a recent series in the Las Vegas Sun that has 

been running, showing on the Las Vegas Strip a series of worker 

fatalities, 9 workers killed and another one last Saturday, 10 workers dead. Enforcement case after enforcement case. Penalties started out at $7,000, reduced to zero—zero—in these workers’ deaths. 

These are big companies. This is a big employer on a big construction job. 

And so we see essentially that the civil enforcement under OSHA 

is not strong enough to deter violations to begin with and only gets 

weaker as it proceeds. 

On the criminal side, the situation is even worse. David 

Uhlmann will speak to that. But one statistic on that that is worth 

citing by comparison. If you look at criminal enforcement under 

OSHA for the last 38 years, you see during that time only 68 criminal prosecutions, 68 in 37 years, a total of 42 months in jail. There 

were 340,000 workplace deaths during that time. By comparison, 

last year alone, for environmental crimes there were 340 criminal 

enforcement actions for environmental crimes resulting in jail time 

of 64 years. So 340 for environmental crimes in 1 year, 68 over the 

entire time of OSHA. And I think that speaks volumes. 

Just in conclusion, there is legislation that is introduced that 

would address the major deficiencies in OSHA. We think it is a 

good bill, a sound bill, and we would encourage the committee to 

move on this legislation and to put in place a stronger structure 

and a stronger prevention for protecting workers in this country. 

Thank you. 

[The prepared statement of Ms. Seminario follows:] 

PREPARED STATEMENT OF PEG SEMINARIO

Senator Kennedy, Ranking Member Enzi, and other members of the committee, 

I appreciate the opportunity to testify today on the issue of penalties for workplace 

fatalities under the Occupational Safety and Health Act. 

Yesterday, April 28, was Workers Memorial Day—a day unions and others here 

and around the globe remember those who have been killed, injured and diseased 

on the job. Here in the United States, it also marked the 38th anniversary of when 

the Occupational Safety and Health Act went into effect. 

Nearly four decades after the job safety law was passed, we find that the promise 

of safe jobs for American workers is far from being fulfilled. Without question, 

14 

progress has been made in improving protections and in reducing job fatalities, injuries and illnesses. But in recent years that progress has come to a halt, and for 

some groups of workers the situation is getting much worse. 

THE NUMBER OF WORKPLACE FATALITIES HAS INCREASED—FATALITY RATES REMAIN

UNCHANGED—FOR SOME WORKERS JOBS ARE MORE DANGEROUS

This month, the Bureau of Labor Statistics (BLS) issued revised workplace fatality statistics for 2006, which showed that job deaths increased in 2006 to 5,840, as 

opposed to declining as originally reported. The job fatality rate for 2006 was 4.0/ 

100,000 workers—essentially the same as it has been for the past 5 years. (Attachment 1). 

For some groups of workers, the situation is getting worse. In 2006, the number 

of fatalities among Hispanic workers jumped to 990, the highest number ever reported since BLS began the Census of Fatal Occupational Injuries (CFOI) in 1992. 

(Attachment 2). The fatality rate among Hispanic or Latino workers also increased 

to 5.0/100,000 (from 4.9/100,000 in 2005), 25 percent greater than for the workforce 

as a whole. Deaths among immigrant workers also increased to 1,046 fatalities. This 

increase in Latino and immigrant worker deaths was due almost entirely to increased deaths in the construction industry. 

The latest fatality report also shows other disturbing news. In 2006, the number 

of workplace deaths from falls, exposure to harmful substances or environments 

(such as confined spaces) and fires and explosions increased significantly. The number of deaths from falls reached an all-time high with 827 deaths reported, with 

most of the increase in fatalities coming in the construction industry. (Attachment 

3). These trends are particularly disturbing since these hazards are subject to OSHA 

standards and oversight. 

In fact, a close review of the job fatality data since 1992 when the fatality census 

began, shows that the only significant decline in the job fatality numbers has been 

for deaths due to assaults and violent acts. For all the other major causes of workplace deaths, the number of fatalities have remained essentially the same or have 

increased. (Attachment 4). 

The vast majority of workplace deaths could be prevented if protective safety and 

health measures were followed. But the fact is that for too many employers, the 

safety of workers is secondary, taking a back seat to production. For some employers, there is a total and blatant disregard for workers. Worker safety requirements 

and other worker protections are totally ignored. 

These include employers like McWane, Inc., one of the largest producers of steel 

pipe in the United States, where over the course of a 10-year period (1995–2005), 

11 workers were killed and thousands were injured at multiple facilities around the 

country. This persistent violator racked up violation after violation in dozens of 

OSHA investigations. But in virtually every case, penalties were reduced and citations dropped, resulting in enforcement actions that were little more than a slap on 

the wrist. It wasn’t until the New York Times exposed McWane’s pattern of abuse 

and violations in 2003, and criminal prosecutions were pursued largely using environmental statutes, that McWane was moved to change its manner of operating. 

THE OCCUPATIONAL SAFETY AND HEALTH ACT IS TOO WEAK TO CREATE AN INCENTIVE

TO IMPROVE CONDITIONS AND DETER VIOLATIONS

The Occupational Safety and Health Act places the responsibility on employers to 

protect workers from hazards and to comply with the law. The law relies largely 

on the good faith of employers to address hazards and improve conditions. For this 

system to work, it must be backed up with strong and meaningful enforcement. But 

at present, the Occupational Safety and Health Act and the OSHA enforcement program provide little deterrence to employers who put workers in danger. OSHA inspections and oversight of workplaces is exceedingly rare. There are no mandatory 

inspections even for the most dangerous industries or workplaces. Between Federal 

OSHA and the States there are approximately 2,100 inspectors. OSHA has the capacity and resources to inspect workplaces on average once every 92 years—once 

every 133 years in the Federal OSHA States. Over the years OSHA’s oversight capacity has been diminished. Federal OSHA has fewer staff today than it did in 

1975, but a much bigger job with twice as many workers and workplaces and new 

hazards to cover. 

Since there is no regular oversight, strong enforcement when workplaces are inspected and violations are found is even more important. But the penalties in the 

OSH Act are weak. Serious violations of the law (those that pose a substantial probability of death or serious physical harm to workers) are subject to a maximum penalty of $7,000. Willful and repeated violations carry a maximum penalty of $70,000 

15 

and willful violations a minimum of $5,000. These penalties were last adjusted by 

the Congress in 1990 (the only time they have been raised). Unlike all other Federal 

enforcement agencies (except the IRS), the OSHAct is exempt from the Federal Civil 

Penalties Inflation Adjustment Act, so there have not even been increases in OSHA 

penalties for inflation, which has reduced the real dollar value of OSHA penalties 

by about 39 percent. For OSHA penalties to have the same value as they did in 

1990, they would have to be increased to $11,500 for a serious violation and to 

$115,000 for a willful violation of the law. 

By comparison, the Mine Safety and Health Act requires mandatory inspections— 

four per year at underground mines and two per year at surface mines. As a result 

of congressional action following the Sago mine disaster and other disasters in 2006, 

the Mine Act now provides for much tougher penalties. The MINER Act increased 

maximum civil penalties for violations to $60,000 (from $10,000), which may be assessed on an instance-by-instance basis. The 2006 mine safety legislation also added 

a new provision for ‘‘flagrant’’ violations, with a maximum civil penalty of $220,000. 

The maximum civil penalties provided for under the OSHAct are rarely assessed. 

Indeed, just the opposite is the case. In fiscal year 2007, the average penalty for 

a serious violation of the law was $906 for Federal OSHA and $913 for the State 

OSHA plans combined. Again this is the average penalty for violations that pose a 

substantial probability of death or serious physical harm. For violations that are 

‘‘other’’ than serious, which also carry a statutory maximum of $7,000, the average 

Federal OSHA penalty was just $40. Clearly, for most employers these levels of penalties are not sufficient to change employer behavior, improve workplace conditions 

or deter future violations. 

Even in cases where workers are killed, penalties are abysmally low. According 

to OSHA inspection data, the average serious penalty in fatality cases for fiscal year 

2007 was just $2,343 for Federal OSHA and $3,988 for the State plans combined. 

The average total penalty assessed in fatality cases was just $10,133 nationally 

($12,226 for Federal OSHA and $7,525 for the OSHA State plans). These averages 

include open cases, which when finally resolved, will result in a reduction in these 

average penalty levels. Average penalties in fatality cases for fiscal year 2003–06, 

where most cases have been resolved, show a national average of $6,078 ($6,646 for 

Federal OSHA and $5,363 for the State plan States). All of these average penalties 

include several high penalty cases, which increase the averages. (Attachment 5). 

A State-by-State review shows that there is wide variability in penalties assessed 

in cases involving worker deaths, with the penalties in some States exceedingly low. 

For example, in fiscal year 2007 Alaska’s average penalty in worker fatality cases 

was just $750, and in Oregon the average penalty was $793. (Attachment 6). 

OSHA highlights the few cases where it imposes high penalties. These cases are 

the subject of press releases that are posted prominently on the agency’s Web site. 

But these high penalty cases are the exception. The norm in most fatality cases is 

minimal citations and penalties of just a few thousand dollars, with these cases receiving little attention. For example: 

• In 2004, two Pennsylvania sewer workers, Robert Hampton, 43 and Larry Dunning, 61, were asphyxiated and died while working in a 10-foot deep manhole. No 

confined space entry procedures were followed or protection provided. The contractor, Rittenbaugh, Inc., was cited for one serious violation of the general duty 

clause (since there still is no confined space entry standard for construction) and 

one serious violation of safety training requirements, with an initial penalty of 

$1,500. The case was settled for $1,000. 

• In New Jersey, Jose Duran Painting was cited for one serious violation and penalized $2,000 in the death of an immigrant worker, for failing to provide fall protection. The penalty was reduced to $1,400. 

• In Michigan, in 2006, Midwest Energy Cooperative, was fined $4,200 for 2 serious violations for excavation and safety program requirements in the death of 

Danny Young, 27, who was killed when a backhoe hit a gas line which exploded. 

The case was settled for $2,940. 

• In Austin, TX, in September 2004, a worker was killed in a trench cave in. The 

sewer contractor, ID Guerra, was cited for one serious and one repeat violation of 

OSHA’s trenching standards, and penalized $8,400, including a $5,600 penalty for 

the repeat violation. Despite being cited by OSHA for a similar trenching violation 

in 2003, OSHA reduced the repeat penalty in the fatality case to just $2,800. (Under 

the act, the maximum penalty for a repeat violation is $70,000). 

What kind of message does it send to employers, workers and family members, 

that the death of a worker caused by a serious or even repeated violation of the law 

warrants only a penalty of a few thousands dollars? It tells them that there is little 

16 

value placed on the lives of workers in this country and that there are no serious 

consequences for violating the law. 

THE OSHACT AND OSHA ENFORCEMENT POLICIES DISCOUNT PENALTIES FOR VIOLATIONS

EVEN IN CASES OF WORKER DEATH

So why are penalties for workplace fatalities and job safety violations so low? The 

problems are largely systemic and start with the OSHAct itself. The act sets low 

maximum penalty levels, particularly for serious violations, which carry a maximum 

of $7,000. This is the most common type of violation cited in fatality cases and other 

enforcement cases. These penalty levels are then adjusted downward based on employer size, good faith, history, and gravity of the violation. Under OSHA policy, violations directly related to fatalities are supposed to be classified as high-gravity, but 

penalty reductions are still allowed for employer size and history. Reductions for 

employer size range from 20 percent (for employers with 101–250 employees) to 60 

percent (for employers with 1–25 employees); and the reduction for no history of serious, willful or repeat violations in the past 3 years is an additional 10 percent. 

So in many cases there is an automatic 30 to 70 percent discount in penalties, regardless of the gravity of the violations that are found. 

OSHA’s general policy is to group multiple instances of the same violation into 

one citation, with one penalty. So, for example, if five workers are injured due to 

an employer’s failure to provide guarding for machines, the employer will only be 

cited once for the violation, even though five workers were hurt. This policy further 

minimizes the level of overall penalties in enforcement cases, including fatalities. 

In 1986, OSHA instituted a policy to provide for instance-by-instance penalties in 

those cases where there was a flagrant and willful violation of the law. This ‘‘egregious’’ policy as it came to be known, was designed to penalize employers who put 

workers at risk and to send a message to other employers about the potential consequences of not complying with the law. Over the years, the egregious policy has 

had some positive impact, particularly when used as part of an industry-wide enforcement initiative, as was the case in the 1980’s and early 1990’s, when it was 

used for widespread injury reporting and ergonomic hazard violations. But in recent 

years, the impact of the policy has been reduced, as the Bush appointees to the Occupational Safety and Health Review Commission (OSHRC) have taken an exceedingly restrictive view of the types of violations that may be cited on an instanceby-instance basis. For example, OSHRC ruled that an employer could not be cited 

on a per-employee, instance-by-instance basis for failing to provide respirators or 

training to workers exposed to asbestos. 

The initial citations and penalties in OSHA enforcement cases, weak to begin 

with, are reduced even further in the resolution of cases. Due to limited staff and 

resources, OSHA area directors and Department of Labor solicitors are under tremendous pressure to settle cases and avoid time consuming and costly litigation. In 

both informal settlements by the agency, and formal settlements after employer 

challenges to OSHA citations, penalties are routinely cut by another 30–50 percent. 

Indeed, it is OSHA practice to offer employers an automatic additional 30 percent 

penalty reduction at the time the citations are issued, no questions asked, if the employer agrees to correct all violations. (Attachment 7). The effect of these policies 

and practices in most cases is to reduce penalties to a level too minimal to have 

any effect. 

A recent in-depth investigation by the Las Vegas Sun of construction worker fatalities on the Las Vegas Strip highlighted the weakness of OSHA enforcement in 

responding to and preventing workplace fatalities. Over the past 16 months, nine 

construction workers have died on a massive construction project overseen by some 

of the Nation’s largest contractors. In more than $30 billion dollars worth of currently ongoing building projects along the Strip, construction workers are facing 

massive speedup pressure to complete projects on time amid unsafe conditions, including inadequate fall protection measures, faulty equipment, and lack of required 

safety training that led to some of the deaths. 

The Sun reported that Nevada OSHA inspections of the nine fatalities initially 

resulted in findings of serious violations of safety standards and penalties, albeit 

fairly low. However, in case after case during informal conferences with the contractors, the agency withdrew many citations and reduced the penalties, in some cases 

removing all the citations and penalties in their entirety. For example, in a case involving the death of Harvey Englander, a veteran operating engineer, who was 

killed when struck by a man-lift in August 2007, Nevada OSHA issued 3 serious 

violations with $21,000 in penalties against the Pernini Building Company for lockout and training violations. The citations and penalties were later withdrawn. Just 

a few months later, in October 2007, Harold Billingsly, a 46-year-old iron worker 

17 

fell to his death, falling 59 feet through an unguarded opening. SME Steel Contractors was issued three serious citations and penalized $13,500 for failing to provide 

fall protection and other violations. But, as in the Perini case, following an informal 

conference with the company, Nevada OSHA withdrew all the citations and penalties. 

As a result of the Sun expose ́, Federal OSHA and the Nevada legislature are examining Nevada OSHA enforcement practices, which already are changing. The 

public scrutiny has also led to much greater attention to safety requirements at the 

Las Vegas construction projects on the Las Vegas strip. But, if it hadn’t been for 

the enterprising work of the Sun reporters, it’s unlikely that these dangerous practices and conditions would have changed. 

Another way the impact of OSHA enforcement in fatality cases is minimized is 

through downgrading the classification of citations from willful to serious, which 

greatly undermines any possibility of criminal prosecution under the OSHAct. In 

some cases OSHA has utilized a practice of changing the characterization of willful 

or repeat violations to ‘‘unclassified,’’ even though the OSHAct makes no provision 

for the issuance of such citations. For example, in a fatality investigation of a worker death at McWane Inc. Atlantic Cast States Iron Pipe Company in March 2000, 

OSHA downgraded four repeat violations to ‘‘unclassified’’ violations, even though 

the company had been cited previously for serious violations in a fatality that occurred at the same facility the year before. 

Employers will seek ‘‘unclassified’’ violations, particularly in fatality cases, not 

only to undermine the potential for criminal prosecution, but to lessen the impact 

of the violations in any civil litigation and to keep willful or repeat violations off 

their safety and health record. The use of these ‘‘unclassified’’ violations may allow 

for settlements with higher monetary penalties or additional safety and health requirements. But these ‘‘unclassified’’ violations greatly weaken the deterrent effect 

of OSHA enforcement to prevent future occurrence of similar violations. 

In fiscal year 2003 there were 50 unclassified violations in Federal OSHA fatality 

cases and in fiscal year 2004 there were 49 such violations. In recent years that 

number has dropped, and for fiscal year 2007, OSHA inspection data shows no unclassified violations associated with fatality cases. But the OSHA policy of allowing 

unclassified citations, even in fatality cases, is still on the books. 

ENHANCED ENFORCEMENT PROGRAM—A LIMITED STEP IN THE RIGHT DIRECTION

In 2003, in response to the New York Times expose ́ on McWane, Inc’s history and 

pattern of worker deaths and OSHA’s weak enforcement actions, OSHA adopted a 

new Enhanced Enforcement Program (EEP). The purpose of the program as described by then-OSHA Assistant Secretary John Henshaw was to target ‘‘employers 

who are indifferent to their obligations under the OSHAct.’’ Under the program, employers with worker fatalities with high gravity serious, willful or repeat violations, 

or other inspections resulting in multiple serious, willful or repeat violations, are 

subject to enhanced oversight. This enhanced scrutiny includes follow-up inspections 

and/or inspections at other facilities of the employer and may result in stricter settlement practices and enforcement actions in future cases. 

In fiscal year 2007, there were 719 inspections involving EEP cases, compared to 

467 EEP cases in fiscal year 2006, 593 EEP cases in fiscal year 2005 and 313 EEP 

cases in fiscal year 2004. Many of these cases were among small employers (25 or 

fewer) who had workplace fatalities with a serious violation, but no prior OSHA history. In 2008, OSHA modified the EEP program for cases involving fatalities with 

a serious violation to include only those employers who had a history of similar serious, willful or repeat violations or another workplace fatality in the last 3 years. 

This increased oversight of more serious violators by OSHA is welcome, but the 

program is limited in its impact in terms of deterring future violations and affecting 

employer behavior. The program includes no provisions for actually enhancing penalties against serial violators or even changing practices for informal settlements or 

penalty reductions in future cases. For example, in one EEP case at ADM Milling 

in Nebraska, in 2003, the employer was cited for serious and repeat violations of 

lock-out/tag-out, machine guarding and electrical safety requirements. Initial penalties of $124,000 were proposed, reduced to $62,000 in an informal settlement. Two 

years later a follow-up inspection at the same plant found 2 repeat violations for 

machine guarding standards. Penalties of $50,000 were proposed, but were later reduced by OSHA to $32,500 in an informal settlement—clearly not a deterrent for 

a company the size of ADM, which had $44 billion in sales in 2007. 

Under the EEP, expansion of investigations to other facilities of the same employer is not automatic, and only occurs in limited cases. Thus, the program provides little leverage to force employers who have similar violations and unsafe pracVerDate Nov 24 2008 14:56 Nov 10, 2009 Jkt 035165 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 S:\DOCS\42210.TXT DENISE
18 

tices at multiple facilities to change the behavior and address hazards on a corporate-wide basis. 

OSHA keeps an internal list of employers who are targeted for this enhanced enforcement and notifies employers that they have been targeted for enhanced scrutiny. But there is no public disclosure of the list of companies that are being targeted under the EEP due to their history of fatalities and serious, willful or repeat 

job safety violations. Publicizing this list could increase public awareness and scrutiny of these companies and create an added incentive for these companies to 

change their safety and health practices. 

OSHA CRIMINAL PENALTIES ARE WEAK AND PROVIDE ALMOST NO DETERRENCE

If the civil penalties under the Occupational Safety and Health Act provide little 

deterrence or incentive for employers, the criminal penalties are even weaker. 

Under the Occupational Safety and Health Act, criminal penalties are limited to 

those cases where a willful violation of an OSHA standard results in the death of 

a worker, and to cases of false statements or misrepresentations. The maximum period of incarceration upon conviction is 6 months in jail, making these crimes a misdemeanor. 

The criminal penalty provisions of the OSHAct have never been updated since the 

law was enacted in 1970 and are weaker than virtually every other safety and environmental law. For example, since 1977 the Mine Safety and Health Act has provided for criminal penalties for willful violations of safety and health standards and 

knowing violations for failure to comply with orders or final decisions issued under 

the law, and the Mine Act makes these violations a felony. Unlike the OSHAct, 

these criminal penalties are not limited to cases involving a worker’s death. 

Federal environmental laws have also been strengthened over the years to provide 

for much tougher criminal penalties. The Clean Air Act, the Clean Water Act, and 

the Resource Conservation and Recovery Act all provide for criminal prosecution for 

knowing violations of the law, and for knowing endangerment that places a person 

in imminent danger of death or serious bodily harm, with penalties of up to 15 years 

in jail. Again, there is no prerequisite for a death or serious injury to occur. 

The weak criminal penalties under the OSHAct result in relatively few prosecutions. With limited resources, Federal prosecutors are not willing or able to devote 

significant time or energy to these cases. According to information provided by the 

Department of Labor, since the passage of the act in 1970, only 68 cases have been 

prosecuted, with defendants serving a total of 42 months in jail. During this time, 

there were 341,000 workplace fatalities according to National Safety Council and 

BLS data, about 20 percent of which were investigated by Federal OSHA. In fiscal 

year 2007, there were 10 cases referred by DOL for possible criminal prosecution, 

but to date the Justice Department has not acted on any of them. 

By comparison, according to EPA in fiscal year 2007 there were 340 criminal enforcement cases initiated under Federal environmental laws and 226 defendants 

charged resulting in 64 years of jail time and $63 million in penalties—more cases, 

fines and jail time in 1 year than during OSHA’s entire history. The aggressive use 

of criminal penalties for enforcement of environmental laws, and the real potential 

for jail time for corporate officials, serve as a powerful deterrent to environmental 

violators. 

The contrast between the weak enforcement provisions of the OSHAct and the 

stronger environmental law provisions can be starkly seen in cases involving both 

workplace safety and environmental violations. 

The case of Eric Ho is one example. In 1998, Ho was engaged in a building renovation project in Houston, TX. The building contained asbestos. Ho hired 11 undocumented workers from Mexico to remove the asbestos, and failed to provide them 

with any training, respirators or protective equipment. A city building inspector 

stopped the work due to the lack of proper permits, but Ho continued to do the work 

secretly at night to avoid detection. Two months into the job, an explosion from a 

gas line occurred at the site, releasing asbestos into the air. 

OSHA inspected and issued serious and willful citations against Ho for failing to 

provide workers with respirators and training required by the OSHA asbestos 

standard. But these violations could not be criminally prosecuted under the 

OSHAct, because despite the flagrant violations, no workers were killed. At the 

same time, however, Ho was criminally prosecuted and convicted for violations of 

the Clean Air Act for his illegal asbestos-removal activities. 

It is worth noting that OSHA proposed significant civil penalties against Ho, citing him on an instance-by-instance, per employee basis for exposing the 11 workers 

to asbestos hazards without respirators or training. But the Occupational Safety 

and Health Review Commission struck down these instance-by-instance violations, 

19 

and greatly reduced the penalties, finding that OSHA’s respirator and asbestos 

training standards did not allow for per-employee, instance-by-instance violations. 

In recent years the Justice Department launched a new Worker Endangerment 

Initiative that focuses on companies that put workers in danger while violating environmental laws. The Justice Department prosecutes these employers using the 

much tougher criminal provisions of environmental statutes. Under the initiative, 

the Justice Department has prosecuted employers such as McWane, Inc. a major 

manufacturer of cast iron pipe, responsible for the deaths of several workers; Motiva 

Enterprises, which negligently endangered workers in an explosion that killed one 

worker, injured eight others and caused major environmental releases of sulfuric 

acid; and British Petroleum for a 2005 explosion at a Texas refinery that killed 15 

workers. 

These prosecutions have led to major criminal penalties for violations of environmental laws, but at the same time underscore the weaknesses in the enforcement 

provisions of the Occupational Safety and Health Act. 

In the Motiva case, the company pleaded guilty to endangering its workers under 

the Clean Water Act and was ordered to pay a $10 million fine. The company also 

paid more than $12 million in civil penalties for environmental violations. In contrast, in 2002 following the explosion, OSHA initially cited the company for 3 serious and 2 willful violations with proposed penalties of $161,000. As a result of a 

formal settlement, the original serious and willful citations were dropped and replaced with ‘‘unclassified’’ citations carrying $175,000 in penalties, greatly undermining any possibility of criminal enforcement under the OSHAct. 

In the BP Texas City refinery disaster, where 15 workers were killed and another 

170 injured, under a plea agreement, the company pleaded guilty to a felony violation of the Clean Air Act and agreed to pay $50 million in penalties and serve a 

3-year probation. BP also agreed to pay $100 million in criminal penalties for manipulating the propane market. But BP paid no criminal penalties under the OSH 

Act, even though 15 workers died and OSHA issued hundreds of civil citations for 

willful, egregious violations of the law. And under the OSH Act, even if BP had paid 

criminal penalties, it would have been a misdemeanor, not a felony. Cases like this 

send a terrible message to workers about the value our laws place on their health 

and safety on the job. 

CONGRESS MUST ACT—THE OCCUPATIONAL SAFETY AND HEALTH ACT SHOULD BE

STRENGTHENED

In 1970, the Congress enacted the Occupational Safety and Health Act, declaring 

that workers’ lives were important and protecting workers’ safety and health was 

a national priority. That same kind of commitment and congressional action is needed today. 

The Occupational Safety and Health Act must be strengthened to provide for 

strong, meaningful enforcement that will deter violations and serve as an incentive 

to improve conditions and protect workers from harm. 

The OSHA civil penalties should be increased—significantly. The enhanced penalties for mine safety adopted by Congress in the MINER Act in 2006—$60,000 for 

serious violations and $220,000 for flagrant violations—provide a good guide. There 

should also be a floor for penalties in fatality cases, to take into account the harm 

that has been done. These increased penalties should be automatically adjusted for 

inflation, as is the case with other Federal laws, so their impact is not diluted with 

the passage of time. 

OSHA’s authority to issue violations and assess penalties for each instance of a 

violation should be made clear and unambiguous. The greater the number of workers put at risk or in danger or who have been injured or killed due to workplace 

violations, the greater the penalty should be. The use of ‘‘unclassified’’ citations 

should be prohibited. 

Consideration should also be given to adopting special provisions to address safety 

and health practices at the corporate level. Presently, the enforcement structure of 

the OSHAct is focused primarily at the establishment level, which as the committee 

heard at a hearing earlier this month, is inadequate to change the practice and culture at the corporate level. Requirements for corporate officials to address identified 

violations and hazards on a corporate-wide basis would greatly enhance the act’s effectiveness, and result in improved workplace conditions and greater protection for 

workers. 

The criminal enforcement provisions of the act must also be strengthened and expanded. At a minimum, criminal violations should be made a felony carrying a significant prison term and monetary fines, and expanded to cover cases where violations cause serious injury to workers. The law should make clear that responsible 

20 

corporate officials are subject to prosecution in appropriate cases. As a matter of 

fundamental fairness and sound public policy, the criminal provisions of the Occupational Safety and Health Act should be strengthened so that violations of workplace 

safety laws carry at least the same potential consequences under our criminal justice system as violations of Federal environmental statutes. 

For these legislative improvements to be effectively implemented, OSHA and the 

Department of Labor must be given additional resources to enforce the law. 

The committee has before it legislation that would accomplish most of these recommendations. The Protecting America’s Workers Act (S. 1244), introduced last year 

by Senator Kennedy with the support of many others, would improve the foundation 

for worker’s job safety protections. It would strengthen OSHA enforcement by increasing civil and criminal penalties and expanding their scope. It would also put 

in place a mandatory minimum penalty in cases involving worker deaths, so that 

we would no longer see the current meager fines of a few thousand dollars in fatality cases. Family members of victims would also be given rights in OSHA fatality 

investigations. 

In addition to strengthening enforcement, the Protecting America’s Workers Act 

(PAWA) would extend the act’s coverage to State and local public employees, flight 

attendants and other workers who currently lack OSHA protection. It would enhance the anti-discrimination provisions of the OSHAct to better protect workers 

from retaliation, by bringing the law into line with other Federal whistleblower statutes. 

The Protecting America’s Workers Act is a good, sound bill that should be enacted 

into law. 

Four decades after the passage of the Occupational Safety and Health Act, its 

time for the country and the Congress to keep the promise to workers to protect 

them from death, injury and disease on the job. 

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The CHAIRMAN. Thank you. 

Mr. Uhlmann. 

STATEMENT OF DAVID M. UHLMANN, DIRECTOR OF THE ENVIRONMENTAL LAW AND POLICY PROGRAM, UNIVERSITY OF 

MICHIGAN LAW SCHOOL, ANN ARBOR, MI 

Mr. UHLMANN. Thank you, Chairman Kennedy, Ranking Member 

Enzi, and members of the committee. 

As the chairman indicated, I am currently a professor of the University of Michigan Law School, but I speak to you today as much 

as a former Federal prosecutor. I served for 17 years at the Justice 

Department, the last 7 as the chief of the Environmental Crimes 

Section. I am pleased to have the opportunity to talk to you today 

about the desperate need to strengthen the criminal provisions of 

the Occupational Safety and Health Act. 

Senator Enzi made comments that I think are very appropriate 

about the fact that we need to do what we can to get to a point 

where there are no accidents, no injuries, no deaths at the workplace. One of the people who led our efforts at the Justice Department to address worker endangerment issues was Senator Enzi’s 

friend, Tom Sansonetti, the former Assistant Attorney General. I 

do not think it is a partisan issue. 


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Our worker safety laws are laudable in many respects. We have 

very broad coverage, and I know we will hear about the fact that 

there is an awful lot that is regulated in the workplace. 

And certainly it is true, as Senator Isakson said, that most employers care deeply about making sure that there are not any accidents, there are not any injuries, there are not any deaths. And for 

most employers, worker safety is a top priority. 

But there always will be some employers who do not think the 

law applies to them, who do not value worker safety, who think 

that their workers are expendable. And for those employers, a credible criminal enforcement threat is essential if we are going to do 

something about worker injuries and worker deaths. 

I would like to quickly tell you about a case that I prosecuted at 

the Justice Department that I think exemplifies or highlights the 

shortcomings of the current law. It was a case in Idaho. It involved 

a facility called Evergreen Resources, ironically named because it 

was a facility that had a history of worker safety and environmental violations. 

In August 1996, the owner of that company, a man named Allan 

Elias, who went to Wharton and was an attorney I am sad to say, 

sent his workers into a tank of cyanide waste and a 20-year-old 

man in his first job out of high school named Scott Dominguez suffered severe and permanent brain damage inside that tank. There 

was no safety equipment. There was no testing of the air inside the 

tank. There was no testing of the waste that was being dumped out 

onto the ground. 

When emergency response vehicles came out to the scene and 

asked what was in the tank, Mr. Elias said there was nothing in 

the tank that could hurt anybody, even though he was the person 

who put cyanide in it. When emergency room doctors were trying 

to save the victim’s life, Mr. Elias lied to them and said there was 

no possibility that there was cyanide in the tank. The next day 

when OSHA showed up, Mr. Elias lied again, said he had a confined space entry permit and went down the street to Kerr McGee 

and got their safety manual and doctored up the confined space 

entry permit and submitted that to OSHA. 

Now, we were able to bring Mr. Elias to justice. We charged him 

with criminal violations of the knowing endangerment provisions of 

the environmental laws, and he was convicted after a 31⁄2-week 

trial and sentenced to 17 years in jail. 

But he did not commit a criminal violation of the worker safety 

laws when he sent his workers into that cyanide tank. He did not 

commit a criminal violation of the worker safety laws even though 

OSHA cited him for willful violations, even though a jury unanimously found that he knowingly placed his workers in imminent 

danger of death or serious bodily injury. He did not commit a criminal violation of the worker safety laws because no one died that 

day. And it is only a crime under the worker safety laws if you 

willfully commit a violation of the Occupational Safety and Health 

Act and it causes death. 

Now, there is something wrong with the law if sending your 

workers into a tank of cyanide waste, ruining a young man’s life 

is not a crime under the worker safety laws, and it is a 17-year felony under the environmental laws. 

28 

So it is time for Congress to act, and I would urge Congress to 

pass the Protecting America’s Workers Act so that five things can 

happen with the law. 

First, violations of the worker safety laws, criminal violations, 

should be felonies. The reality of life as a Federal prosecutor and 

the priorities and the resource constraints that the Justice Department has is we are never going to see significant criminal prosecution if the laws remain misdemeanors. 

Second, the penalties today, 6 months in jail. The message we 

send about the value of a worker’s life when it is 6 months in jail 

if a worker is killed through a willful violation of the law is the 

wrong message. The maximum sentence should be measured in 

years, not in months. 

Third, endangerment, as Senator Enzi talked about, should be a 

crime. If an employer knowingly violates the worker safety law and 

puts his or her employees at risk of injury or death, that should 

be a crime, regardless of whether some intervening event occurs 

that spares somebody’s life as in the Elias case—there were emergency room doctors—or regardless of the fact that nobody is injured 

because of some luck of fate. 

Fourth, the mental State requirement should be knowingly, not 

willfully. Willful violations mean that ignorance of the law is a defense, which is contrary of most American jurisprudence. Employers have a duty, should have a duty to know the law and when 

they act in ways that put their workers at risk in complete disregard of the law, it should not be a defense for them to claim that 

they did not know it was a violation. 

And last, it needs to be clear that individuals are responsible 

under this act. Supervisors who order their employees into dangerous situations, responsible corporate officers who know the violations are occurring and fail to prevent them all should be criminally liable. 

As has been said a number of times this morning, the Occupational Safety and Health Act was passed over 30 years ago. It is 

time to make the guarantee of a safe workplace promised by the 

act a reality. It is time to strengthen the criminal provisions of the 

law. 

I thank you for the opportunity to testify today. 

[The prepared statement of Mr. Uhlmann follows:] 

PREPARED STATEMENT OF DAVID M. UHLMANN

Thank you Chairman Kennedy, Senator Enzi, and members of the committee for 

holding today’s hearing and for giving me the opportunity to testify before you. 

My name is David Uhlmann. I am the Jeffrey F. Liss Professor from Practice and 

the Director of the Environmental Law and Policy Program at the University of 

Michigan Law School. Prior to joining the Michigan faculty in July 2007, I served 

for 17 years in the U.S. Department of Justice, the last seven as Chief of the Environmental Crimes Section. 

During my tenure at the Justice Department, we prosecuted a number of environmental criminal cases involving worker injuries and deaths. Based on those successful prosecutions, we developed a worker endangerment initiative to highlight the 

fact that environmental crimes frequently place America’s workers at risk of death 

or serious bodily injury—and to prosecute companies that systematically violate 

both the environmental laws and our worker safety laws. 

The Justice Department’s worker endangerment initiative has produced a number 

of high-profile prosecutions involving companies such as BP Products North America, McWane, Inc., Motiva Enterprises, LLC, and W.R. Grace & Co. The worker 

29 

1See, e.g., 42 U.S.C. § 7413(c)(4) (negligent endangerment under the Clean Air Act) and 42 

U.S.C. 7413(c)(5) (knowing endangerment under the Clean Air Act). 2 18 U.S.C. § 1001. 

3 18 U.S.C. §§ 1503, 1505, 1512, and 1519. 

4 18 U.S.C. § 371. 

5 29 U.S.C. § 666(e). 

6 Joseph Hilldorfer And Robert Dugoni, ‘‘The Cyanide Canary: A Story Of Injustice’’ (2004). 

Former EPA Special Agent Hilldorfer and co-author Dugoni provide a first-hand account of the 

prosecution of United States v. Elias, 269 F.3d 1003 (9th Cir. 2001), for environmental crimes 

that left the victim permanently brain-damaged. Multiple worker safety violations occurred, but 

no worker safety crime, because of the deficiencies of the OSH Act. 

endangerment initiative has focused on companies where profits have taken precedence over compliance with the law and workers have been treated as if they were 

expendable. Criminal prosecution of those companies protects American workers, 

upholds the rule of law, and ensures that corporate outlaws do not have a competitive advantage over companies that make compliance a priority. 

The success of the Justice Department’s worker endangerment initiative, however, 

has highlighted the woeful inadequacy of the criminal provisions of our worker safety laws. Most of the cases brought by my former colleagues charged violations of 

the endangerment provisions of the environmental protection statutes 1 and Title 18 

of the United States Code, which makes it a crime to make false statements,2 obstruct justice,3 and commit conspiracy to defraud the United States by impeding the 

effective implementation of government regulatory programs.4 Typically, the crimes 

charged were felonies, punishable by up to 15 years in jail for knowing 

endangerment and 20 years in jail for some forms of obstruction of justice. The 

endangerment provisions of the environmental laws and title 18 also cover a wide 

range of misconduct in the workplace. 

Only one case brought to date under the worker endangerment initiative, the 

prosecution of McWane for a worker death at its Union Foundry plant, has utilized 

the criminal provisions of the Occupational, Safety, and Health Act (the ‘‘OSH 

Act’’).5 Prosecution under the OSH Act is extremely limited, because the OSH Act 

only covers (1) willful violations of worker safety regulations that (2) result in worker death. Even if a willful violation occurs that results in death, the crime is only 

a Class B misdemeanor, with a maximum sentence of 6 months in jail. 

The criminal provisions of our worker safety laws are so weak that they do little 

to protect America’s workers. Limiting prosecution to willful violations makes ignorance of the law a defense, contrary to the time-honored maximum of American jurisprudence that ignorance of the law is not a defense. Focusing exclusively on violations involving worker deaths ignores the pain and anguish that results from serious injuries, which also may warrant criminal remedies. Misdemeanor violations 

provide little deterrence and minimal incentive for prosecutors and law enforcement 

personnel, who reserve their limited resources for the crimes that Congress has 

deemed most egregious by making them felonies (with significant maximum penalties). Finally, only ‘‘employers’’ can be prosecuted for criminal violations of the 

OSH Act, which means that the mid-level managers who have the greatest day-today responsibility for unsafe working conditions often are immune from criminal 

prosecution under the OSH Act. 

In my testimony today, I will explain why Congress should strengthen the criminal provisions of our worker safety laws by enacting the Protecting America’s Workers Act. 

First, I will describe one of the cases that I prosecuted at the Justice Department 

that helped lead to our worker endangerment initiative and exposed the inadequacy 

of the criminal provisions of our worker safety laws. Second, I will explain why a 

stronger criminal program under the OSH Act would promote greater compliance 

with our worker safety laws. Third, I will suggest possible changes to the OSH Act 

and the Protecting America’s Workers Act to provide a more effective criminal enforcement scheme and ensure compliance with our worker safety laws. 

THE CYANIDE CANARY 6

In August 1996, Scott Dominguez collapsed and nearly died inside a 35,000 gallon 

steel storage tank while working at Evergreen Resources, a fertilizer manufacturing 

facility in Soda Springs, ID. The owner of Evergreen Resources was Allan Elias, a 

Wharton graduate and attorney who had a long history of environmental and worker safety violations. Elias previously used the 35,000 gallon tank for a cyanide 

leaching operation and to store phosphoric acid. Cyanide and phosphoric acid react 

to form deadly hydrogen cyanide gas; expert testimony at trial established that 

there was enough cyanide in the storage tank to kill thousands of people. 

30 

7The United States charged the falsified permit as a violation of 18 U.S.C. § 1001, instead 

of the OSH Act’s false statement provision, 29 U.S.C. § 666(g), because a false statement under 

title 18 is a felony, punishable by up to 5 years in jail. A false statement under the OSH Act 

is a Class B misdemeanor, punishable by up to 6 months in jail. Elias was convicted and sentenced to the statutory maximum penalty of 5 years in jail on the title 18 false statement 

charge. 8 United States v. Allan Elias (D. Idaho, CR No. 98–00070–E–BLW), Trial Transcript at 3499 

(Testimony of Scott Dominguez, May 3, 1999). 9 ‘‘Idaho Man Given Longest-Ever Sentence for Environmental Crime,’’ United States Department of Justice Office of Public Affairs Press Release (Statement of Assistant Attorney General 

Lois J. Schiffer, April 29, 2000). 

Elias nonetheless ordered Dominguez and his co-workers to clean out the tank 

and dump the cyanide-laced sludge from the bottom of the tank. Elias ignored the 

pleas of his workers for safety equipment and for tests to determine whether it was 

safe to go inside the tank. Elias refused to prepare the required ‘‘confined space 

entry permit’’ detailing the steps that were being taken to protect the workers and 

enable them to be rescued if someone was injured inside the tank. Elias did so even 

though he had been warned for years by the Occupational Safety and Health Administration (‘‘OSHA’’) about the dangers of sending workers into confined spaces 

like the tank without safety equipment and appropriate testing. When the workers 

complained of sore throats and difficulty breathing, Elias told them to finish the job 

or find work somewhere else. 

Dominguez, a recent high school graduate without significant work experience, 

felt like he did not have any choice. So, on August 27, 1996, wearing just jeans and 

a t-shirt, Dominguez descended into the tank on a ladder, a 20-year-old with his 

whole life ahead of him. Two hours later, covered in sludge and barely breathing, 

Dominguez emerged from the tank on a stretcher, his life shattered by Elias’s blatant disregard for the health and safety of his workers. 

In the frantic minutes before paramedics rescued Dominguez, firefighters asked 

Elias whether there was anything in the tank that could explain what had happened to Dominguez or put the rescuers at risk. Elias lied and said there was nothing but mud inside the tank. 

After the ambulance rushed Dominguez to the hospital, the emergency room doctor, John Wayne Obray, called Elias twice to ask what was inside the tank. On the 

second call, Dr. Obray asked Elias whether there was any possibility that cyanide 

was in the tank. Elias lied and said no. 

The next day OSHA inspectors interviewed Elias, who lied again and said that 

he had a confined space entry permit for the tank cleaning operation. Later that 

morning, Elias went to a neighboring facility operated by Kerr McGee Chemical 

Corporation and borrowed a safety manual, which included instructions about how 

to prepare a confined space entry permit. He then prepared and backdated a confined space entry permit for the tank cleaning operation and submitted the false 

permit to OSHA, claiming it had been prepared before Dominguez was hurt. 

The United States charged Elias with three felony counts under the environmental laws, including knowing endangerment under the Resource Conservation 

and Recovery Act (‘‘RCRA’’), which carries a maximum penalty of 15 years in prison. 

In addition, the United States charged Elias with one felony count under title 18 

of the United States Code for submitting the fabricated confined space entry permit 

to OSHA.7 During the 31⁄2-week trial, Dominguez testified that he did not know 

there was cyanide in the tank, and that he entered the tank without safety equipment because ‘‘I really, really, really did, really did trust Allan.’’ 8

After less than 6 hours of deliberations, the jury convicted Elias on all counts on 

May 7, 1999. U.S. District Court Judge B. Lynn Winmill sentenced Elias to 17 years 

in prison, which until recently was the longest sentence ever imposed for environmental crime. 

The Justice Department hailed the Elias conviction and the resulting sentence, 

because it demonstrated that ‘‘environmental crimes are real crimes, and those who 

flout our environmental laws will go to prison for a long time.’’ 9 The proof of knowing endangerment in the Elias case, however, was based as much upon evidence 

that Elias violated OSHA regulations governing confined space entries as it was on 

the accompanying unpermitted disposal of hazardous waste in violation of RCRA. 

Indeed, the Elias case was as much a worker safety case as it was an environmental 

case under the Federal pollution prevention laws. 

Yet Elias did not commit a criminal violation of the worker safety laws. 

Elias did not commit a worker safety crime, even though OSHA cited Elias for 

willful violations of worker safety regulations. Elias did not commit a worker safety 

crime, even though the jury found unanimously that Elias knew he was placing his 

workers in imminent danger of death or serious bodily injury. Elias did not commit 

31 

10 29 U.S.C. § 666(a). 11 18 U.S.C. § 3571(c)(4). 12 18 U.S.C. § 3571(d). 

a worker safety crime, even though he was convicted of multiple environmental felonies, including knowingly endangering his workers. 

Allan Elias did not commit a worker safety crime, because Scott Dominguez did 

not die. 

Elias committed egregious crimes and deserved the 17-year prison sentence imposed by Judge Winmill. The Elias case provides a stark contrast, however, between 

the strength of the criminal provisions of the environmental laws and the weakness 

of the criminal provisions of the worker safety laws. It is appropriate that endangering workers during a hazardous waste violation carries a 15-year maximum sentence per count; it is illogical that the same conduct during a worker safety violation 

is not a crime unless a worker dies—and even then only a 6-month misdemeanor 

per count (which, in all likelihood, means 6 months per worker death). 

The criminal provisions of the environmental laws are not an effective antidote 

for the weakness of the criminal provisions of the worker safety laws. Most environmental crime occurs in a workplace setting and involves the mishandling of hazardous substances or pollutants, which can place workers at risk. However, many 

cases involving danger to workers cannot be prosecuted under the environmental 

laws, because they do not involve mishandling of hazardous wastes, or unlawful releases of hazardous air pollutants into the ambient air, or illegal discharges of pollutants into waters of the United States. Relying on the environmental laws to protect America’s workers means that, in many cases, America’s workers will be left 

unprotected. 

Moreover, even when environmental laws apply, their enforcement can raise complicated regulatory issues. Elias challenged his convictions on the grounds that the 

applicable definition of hazardous waste was too vague to be criminally enforced. 

While the Ninth Circuit did not agree with Elias, his ability to make such an argument shows the limits of environmental criminal enforcement as the primary method of addressing worker endangerment cases. 

In sum, while the Elias prosecution was successful, and the worker endangerment 

initiative has excelled because of the extraordinary efforts of career prosecutors at 

the Justice Department, criminal investigators at the U.S. Environmental Protection Agency (‘‘EPA’’), and oft-maligned compliance officers within OSHA, the environmental laws cannot make up for the inherent weaknesses of the criminal provisions of our worker safety laws. 

THE NEED FOR A STRONG CRIMINAL PROGRAM

Most companies in the United States comply with the law and care about protecting their workers. For those companies, worker safety is more than a legal requirement; it is a moral and ethical obligation. But experience teaches that there 

always will be companies that take a different approach, companies with owners 

like Allan Elias who think that the law does not apply to them or that, if they get 

caught, they can either avoid penalties or simply pay a modest fine. 

Sadly, under the existing OSH Act, the companies that think there are not significant penalties for violating OSHA regulations probably are correct. Willful or repeated violations carry a statutory maximum of $70,000 per violation,10 a number 

which has not been increased in decades and pales in comparison to the cost of an 

effective corporate compliance program. 

Criminal penalties can be much higher than administrative penalties under the 

OSH Act, because title 18 sets a maximum penalty of $500,000 for misdemeanors 

that are committed by organizational defendants and result in death 11 or twice the 

gain or loss associated with the offense 12 (whichever is greater). As discussed above, 

however, criminal violations only apply if a willful violation results in worker death. 

Even if the criminal provisions apply, most U.S. Attorney’s Offices—faced with the 

challenge of prosecuting cases across a wide range of Federal regulatory programs, 

in addition to drug and gun crimes—focus on felony cases and are unable to devote 

limited prosecutorial resources to misdemeanor cases for regulatory crime. 

The net result is a worker safety program where most violators—even willful violators—will face only administrative violations and relatively modest penalties if 

they are cited. That makes it easy for companies to put profits before compliance 

and to view any penalties that may result as a ‘‘cost of doing business.’’ A company 

that epitomized that approach is McWane. 

McWane is a privately owned company that operates pipe manufacturing facilities 

across the United States. Although pipe manufacturing is inherently dangerous, 

32 

13David Barstow and Lowell Bergman, ‘‘A Dangerous Business: At a Texas Foundry, an Indifference to Life’’ (N.Y. Times, January 8, 2003). 14Sentencing in the Atlantic States case has not occurred more than 2 years after the trial 

ended (which lasted 7 months and was the longest environmental crimes trial ever in the United 

States). A new trial may be necessary in the McWane Cast Iron Pipe case after the U.S. Court 

of Appeals for the Eleventh Circuit reversed the convictions on Clean Water Act jurisdictional 

grounds, United States v. Robison, 505 F.3d 1208 (11th Cir. 2007), reh’g en banc denied (2008), 

unless the United States seeks and obtains Supreme Court review of the case. 15 ‘‘A Dangerous Business Revisited,’’ Frontline (February 5, 2008). 

McWane facilities were particularly hazardous places to work. From 1995 to 2003, 

at least 4,600 workers were injured at McWane plants,13 giving McWane one of the 

worst safety records in the United States. 

Yet, despite McWane’s alarming record of worker injuries and deaths, the company’s only criminal conviction prior to 2005 was a single misdemeanor count in 

July 2002 under the OSH Act for willful violations of the worker safety laws that 

resulted in a worker being crushed to death at McWane’s Tyler Pipe facility in 

Tyler, TX. McWane paid a fine of $250,000. 

In January 2003, as a pilot project for the worker endangerment initiative, the 

Justice Department and EPA began a criminal investigation of environmental and 

worker safety violations at five McWane facilities: Atlantic States Cast Iron Pipe 

Company in New Jersey; McWane Cast Iron Pipe Company in Alabama; Pacific 

States Cast Iron Pipe Company in Utah; Tyler Pipe in Texas; and Union Foundry 

in Alabama. The investigations revealed a company that was a persistent violator 

of worker safety and environmental laws, and which made it a practice to lie to and 

deceive OSHA inspectors and Federal and State environmental officials to conceal 

its illegal activity. 

McWane eventually pleaded guilty in September 2005 to criminal charges under the OSH Act at its Union Foundry facility, and received a criminal sentence of $4.25 

million. McWane also pleaded guilty to Clean Air Act crimes at Pacific States, with 

a criminal sentence of $3 million, and at Tyler Pipe, with a criminal sentence of $4.5 

million. McWane chose to stand trial for the violations committed at its Atlantic 

States and McWane Cast Iron Pipe facilities, where multiple McWane officials were 

charged. After lengthy trials, however, McWane and most of the individual defendants were convicted, although final sentences have not been imposed.14

While the criminal cases against McWane have not ended, the multi-million dollar 

criminal fines imposed against McWane and the years of adverse publicity resulting 

from the criminal investigations and prosecutions may have changed McWane’s approach to worker safety. In a follow-up piece to the expose ́ that launched the 

McWane investigations,15 Frontline interviewed dozens of McWane employees who 

describe a ‘‘new McWane’’ where worker safety and environmental compliance are 

now a priority. Former OSHA Administrators and senior Justice Department officials now advise McWane about its regulatory compliance programs. 

Only time will tell whether there is a new corporate attitude at McWane. It is 

revealing, however, that the company ignored worker safety in the face of years of 

worker injuries and deaths, and accompanying administrative penalty actions (and 

a single criminal conviction). McWane only began to make changes when the United 

States launched a concerted, national investigation and prosecution effort, with multiple indictments for felony violations and multi-million dollar criminal penalties for 

those crimes. The McWane prosecutions therefore speak volumes about the role of 

a strong criminal program in promoting worker safety and compliance. 

A strong criminal program, particularly one where individual corporate officials 

may face significant jail time if they commit criminal violations, sends a message 

to the regulatory community about the need to make compliance with worker safety 

laws a priority. Companies that do not care about worker safety for its own sake 

will pay far more attention to worker protection if they fear criminal sanctions and 

possible jail time for corporate officials who put workers at risk. 

Criminal enforcement also provides benefits beyond punishment and deterrence of 

criminal activity. In regulatory programs where there is a credible criminal enforcement threat, companies are quicker to resolve administrative penalty actions and 

respond more productively to regulatory inspections. The OSHA inspectors trained 

as part of the Justice Department’s worker endangerment initiative describe many 

companies that are indifferent or hostile to OSHA compliance officers. That would 

not be the case if the OSHA enforcement scheme included a more significant criminal enforcement threat than the current OSH Act provides. 

Finally, companies that make worker safety a priority should not feel threatened 

by a stronger criminal enforcement program. Stronger criminal provisions would not 

be used to criminalize accidents, which sometimes happen despite the best efforts 

of employers and employees. Criminal enforcement only would occur in situations 

33 

16 33 U.S.C. § 1319(c)(3)(A) (the Clean Water Act); 42 U.S.C. § 6928(e) (RCRA); and 42 U.S.C. 

§ 7413(c)(5)(A) (the Clean Air Act). The Clean Air Act also contains a negligent endangerment 

provision. 42 U.S.C. § 7413(c)(4). 

where there was a knowing violation of a worker safety requirement. Only companies that routinely violate our worker safety laws would be at risk. Those companies 

should not have a competitive advantage over companies that devote the necessary 

resources to worker safety, and we want companies that are chronic violators to be 

worried about criminal prosecution, so that they will comply with the law. 

THE PROTECTING AMERICA’S WORKERS ACT

The criminal provisions of the Protecting America’s Workers Act would be a substantial improvement over existing law. First, the Protecting America’s Workers Act 

makes most criminal violations of the OSH Act felonies, which is consistent both 

with the act’s emphasis on public health and safety as well as the approach taken 

in most other Federal regulatory programs. Second, the Protecting America’s Workers Act expands the criminal provisions to reach violations that cause serious bodily 

injury but not death. In this regard, the Protecting America’s Workers Act acknowledges the devastation and suffering that can result from serious injuries. 

There is no question that criminal violations of the OSH Act should be felonies. 

It is a felony to commit criminal violations of the environmental laws; it is a felony 

to commit criminal violations of our hazardous transportation laws and many wildlife laws. Insider trading, customs violations, tax crimes, antitrust violations, food 

and drug violations, and transportation of stolen vehicles are felonies. False statements, mail and wire fraud, obstruction of justice, perjury, false declarations, and 

conspiracy in violation of title 18 all are felonies. The list goes on and on, but the 

point is simple: when criminal worker safety violations occur, they should be felonies too. Otherwise, the message that is sent is that the United States does not care 

about worker safety. 

Upgrading OSH Act violations to felony status also is essential if Congress wants 

to see meaningful criminal enforcement of our worker safety laws. From 2003 to 

2007, only eight criminal cases were brought for violations of the OSH Act. Absent 

action by Congress, criminal cases will remain infrequent because Federal prosecutors will not devote significant resources to cases that Congress relegates to misdemeanor status. Prosecutors occasionally will accept plea agreements to lesser included misdemeanor charges, but they rarely will initiate complex investigations 

and prosecutions if the most serious, readily provable offense is a misdemeanor. 

There also is no question that criminal prosecution under the OSH Act should be 

possible even in cases where death does not occur. The Elias case is a classic example of a situation where death did not occur but a criminal prosecution under the 

OSH Act should have been possible. The fact that the emergency room doctors were 

able to save Scott Dominguez’s life had no bearing on the extent to which Elias violated the worker safety laws or his mental state when he committed those violations. While the fact that a worker dies may be relevant to the sentence that is imposed, it should have no effect on whether a criminal violation has occurred. 

The Protecting America’s Workers Act could be improved, however, by criminalizing endangerment and knowing violations of the worker safety laws, and by addressing the role of individual liability. The act also should address resources for 

criminal investigations. 

Worker Endangerment: The Protecting America’s Workers Act would promote 

worker safety more effectively, if it were expanded to cover violations that endanger 

workers. As noted above, there is no difference in the nature of the violation committed by a defendant or the defendant’s mental state if a particular outcome occurs, whether that outcome is death, serious bodily injury, or the intervention of 

some good fortune that prevents any harm. Criminal culpability should be determined based on the risk associated with a defendant’s misconduct and the degree 

to which the defendant is aware of that risk, not whether the risk becomes a reality. 

The environmental laws again are instructive, since they make knowing 

endangerment a crime whenever a defendant commits a Clean Water Act, RCRA, 

or Clean Air Act violation and ‘‘knows at the time that he [or she] thereby places 

another person in imminent danger of death or serious bodily injury.’’ 16 If a similar 

provision were added to the Protecting America’s Workers Act, the new law would 

do more to prevent violations that put American workers at risk. 

Knowing Violations: The Protecting America’s Workers Act also would provide 

greater protection for workers if ‘‘knowing’’ violations of the worker safety laws that 

endangered workers (or caused serious bodily injury or death) were covered. Most 

Federal environmental crimes and most Federal regulatory crime address knowing 

34 

17 Bryan v. United States, 524 U.S. 184, 191–199 (1998). 18 29 U.S.C. § 652(5). 19The ‘‘responsible corporate office’’ doctrine originated in a Supreme Court case interpreting 

the Federal Food, Drug, and Cosmetic Act. United States v. Dotterweich, 320 U.S. 277 (1943). 

Its use in the environmental crimes context has been considered by a number of courts, most 

notably in United States v. Iverson, 162 F.3d 1015, 1022–25 (9th Cir. 1998). 

violations of the law, which require that the defendants knowingly engage in the 

conduct that is prescribed.17 In other words, knowledge of the facts is required (e.g., 

that a confined space entry is occurring without a confined space entry permit, appropriate testing, and/or safety equipment), but knowledge of the law is not (e.g., 

that OSHA rules require a confined space entry permit, appropriate testing, and 

safety equipment). 

The problem with the current version of the OSH Act and the Protecting America’s Workers Act is that both are limited to ‘‘willful’’ violations. The use of willfulness places the worker safety laws outside the mainstream of Federal criminal law. 

More importantly, by requiring willfulness, the OSH Act and the Protecting America’s Workers Act make ignorance of the law a defense. It is a long-standing principle of American jurisprudence that ignorance of the law is not a defense, and ignorance of the law should not be a defense where the health and safety of America’s 

workers are involved. Employers who are covered by the OSH Act have a duty to 

know the law. They should not be able to escape criminal liability for knowing violations that place workers at risk by claiming that they did not know that safety 

measures were required. 

Individual Liability: The Protecting America’s Workers Act also should address 

the scope of individual liability for criminal violations of our worker safety laws. As 

noted above, individual liability plays a central role in any criminal enforcement 

scheme, since the threat of jail time is arguably the single greatest deterrent provided by the criminal law. Unfortunately, the current version of the OSH Act applies only to ‘‘employers,’’ which are defined under the act as ‘‘a person engaged in 

a business affecting commerce who has employees. . . . ’’ 18 The limited definition 

of employers absolves most, if not all, mid-level managers of criminal responsibility, 

even though they are likely to be the individuals with knowledge of worker safety 

violations. 

A better approach to individual liability would be to impose criminal responsibility 

on all supervisory personnel who are responsible for the violations, which can occur 

in two ways. First, supervisors who are directly involved or order that the misconduct occur should be criminally liable, which is standard in Federal criminal 

cases. Second, supervisors who (1) know that the conduct is occurring; (2) have the 

authority to prevent the conduct from occurring; and (3) fail to prevent the conduct 

should be held responsible under the ‘‘responsible corporate officer’’ doctrine (although its scope extends beyond individuals with corporate titles to include all persons who meet the three elements of the doctrine). The responsible corporate officer 

doctrine also is used in criminal prosecutions under the environmental laws.19

Investigative Resources: A final issue for the Protecting America’s Workers Act 

is the need for law enforcement resources to investigate worker safety crimes. 

OSHA compliance officers do an outstanding job investigating worker safety violations. They are not criminal investigators, however, and fourth amendment concerns 

would be raised if they obtained evidence for purposes of a criminal investigation. 

Moreover, once a criminal investigation begins, witnesses must be interviewed, evidence reviewed, subpoenas issued, and, in some cases, search warrants executed, all 

of which must be done by law enforcement officials. 

During the Justice Department’s worker endangerment initiative, we relied upon 

EPA’s criminal investigators to provide law enforcement support. In cases that are 

not environmental crimes, however, Federal prosecutors would require another 

source of investigative support. There are two alternatives: first, the Federal Bureau 

of Investigation (‘‘FBI’’) could provide agent support; and, second, a criminal investigation division could be established within OSHA. Unfortunately, the FBI has few 

resources today for crimes other than counterterrorism, and hiring criminal investigators at OSHA would take time and political will that may be lacking. At some 

point, however, the need for investigative resources for OSH Act violations must be 

addressed. 

CONCLUSION

The criminal provisions of the environmental laws and the OSH Act were enacted 

during the 1970’s when much of the modern regulatory State was created. Within 

a decade, Congress had changed the environmental laws—which also began as misdemeanor violations—because Federal prosecution resources are generally reserved 

35 

for felony cases, and Congress recognized that the benefits of a strong environmental crimes program would be lost without felonies. 

It has been 20 years since Congress amended the environmental laws, and it is 

long past the time for Congress to take the same approach to our worker safety 

laws. Some workers do not have a choice about where they work, either because jobs 

are scarce in their communities or they have not had the educational opportunities 

that would enable them to seek higher-paying and safer jobs. But all of us deserve 

a safe place to work and the ability to come home to our families in good health 

each night. We can do more to protect our workers and ensure that all companies 

in the United States honor our best traditions of caring for our workers, neighbors, 

and friends. 

By passing the Protecting America’s Workers Act, with the improvements suggested during my testimony today, we can make good on the promise of a safe workplace made 30 years ago when Congress first enacted the Occupational Safety and 

Health Act. 

Thank you again for the opportunity to testify before you today. 

The CHAIRMAN. Mr. Hayes. 

STATEMENT OF RON HAYES, DIRECTOR, FIGHT PROJECT, 

FAIRHOPE, AL 

Mr. HAYES. Thank you to you great American heroes. 

This is 14 years that we are still talking about the same problems. Fourteen years ago, my son Patrick was killed. He did not 

have to die on the job, but he worked for a company that did not 

care about human life. The first person I reached out to, after I 

found out that OSHA was not going to do the job, was Senator 

Kennedy. 

Here is my Western Union telegram, the 3rd of May. 

‘‘OSHA does not want you to know the information I have. 

Big business does not want you to know the information I 

have. But my son called out from his grave the information you 

need to make a decision on OSHA reform. Please contact me.’’ 

And you did, Senator Kennedy, and you started working and helping, and we have been working together for years. 

In 1999, I met my great friend, Senator Mike Enzi. He and I 

have been working together on many different things, and we think 

similar in a lot of issues. 

I still believe that OSHA has to have a felony charge. I will always believe that. And make no mistake about it. There is no 

amount of money that you can place on my child’s life, not 1 penny. 

You could give me a million dollars today and it will not change 

the fact that Pat is gone. And I miss my little buddy. 

But I am going to tell you some ways to make OSHA better. I 

have said this for 14 years. I have studied OSHA. I have fought 

with them. I have beat them up. I have worked with them. We 

have done a lot of good, progressive and positive things. I still believe OSHA has to be a 50/50 mix. I believe OSHA has to be the 

educator and the enforcer. I am going to give you 12 ideas that I 

have that is in my testimony that will make OSHA better. And this 

has come from years of studying OSHA. 

We have a systemic problem within OSHA. There are many good 

people that work in OSHA, but those people are not allowed to expand and work and help the worker. And I am going to promise 

you right now any worker in this country will tell you OSHA runs 

interference for big business, and that is it. There is no way to tell 

36 

it to you any other way. I am telling you the truth. That is what 

the average worker in this country knows. 

The second thing they know is their life is worth diddly because 

OSHA is not going to prosecute, and it is ridiculous. We have prosecution in everything else. I can kick a mule in the rear in a park 

somewhere in this country and I am going to jail. But a small businessman can kill 9 of his 10 employees and still get a 70 percent 

discount on the penalties. That is wrong, guys. Wrong. I do not 

care whether you are Republican or Democrat. It is wrong and it 

is wrong to put these families in a grieving process. 

No. 1, make sure we have regular oversight hearings every 6 

months and make OSHA appear and talk about the issues raised 

the past 6 months. 

Have OSHA employees trained in criminal investigative techniques. 

Have an ombudsman to represent and help the families. 

Have a special fatality investigating team. 

Take away the discretionary immunity clause that OSHA employees have and open them up to outside scrutiny. Let me go after 

them. I tell you, we will get the truth. 

Tie OSHA’s budget to line items to be accomplished each year 

and make them prove that outcome. 

Set aside a special budget amount yearly just for prosecuting and 

criminal enforcement of bad actors, not the good companies, the 

bad boys. 

Make all OSHA offices follow its policy and procedures. 

Make all State OSHA programs be equal to or better than Federal offices, and make sure that they are followed. 

Have a special mechanism where we can reopen a case because 

right now, folks, God cannot even reopen an OSHA case if it is 

closed. I want Pat’s case reopened. And I can tell you if it was reopened, it would have been handled differently. We all know that 

now. 

Have a felony charge for willfully killing an employee and give 

OSHA some teeth and make them bite. 

Have the family present during all OSHA settlement meetings 

with the companies. I promise you, put me in front of those company lawyers and OSHA ain’t going to back down. I will come 

across that table. They ain’t backing down. But they will not allow 

me in the room with them. Put me in the room with them and see 

what happens. 

Increase the fine structure to send a clear message of the importance of human life and limb. In 1970, when the OSH Act was enacted, yes, the fines were okay. You could buy crystal for 10 cents. 

You could buy a loaf of bread for less than 50 cents. Thirty-five 

thousand dollars at that time, that was a lot of money. That sent 

a clear message. But we are in a different age. You could buy a 

home then that did not cost as much as a car now. 

We have to send a clear message. We need a felony charge, and 

we need stiffer and stronger penalties. 

Thank you. 

[The prepared statement of Mr. Hayes follows:] 

37 

PREPARED STATEMENT OF RON HAYES

I would like to thank the Senate Labor Committee for allowing me the honor to 

testify about OSHA issues. For 14 years I have monitored, fought with and tried 

to change this agency for the better. As of this date we still have many problems 

and issues to correct. What I have learned over the years is there is no consistency 

within this agency; the only consistent part of this agency is the failure to protect 

the Great American worker. There is no honor or justice for the 16 workers that 

are killed on a daily basis or the thousands of workers injured as well. The very 

agency given the task of safe guarding the American workplace by Congress fails 

to do so miserably every day. 

My Fight with this agency started in 1993 when our 19-year-old son was killed 

on the job. Pat was working for a company that had no regard for human life and 

had a long history with this agency, even the corporate safety director told OSHA 

his company worked under the roll of the dice plan, we won’t change our ways until 

something bad happens. I can tell you something bad happened and they did change 

their ways but OSHA didn’t do it I had to, there was no help or justice for Pat. 

OSHA treated us like we were dirt. So Dot and I started our Fight project (Families 

In Grief Hold Together) to help other families and try and make sense out of this 

tragic experience. We found along the way many great people to work with and 

help, in fact, we have helped hundreds of families over the past 14 years, we have 

given hundreds of safety classes and have presented hundreds of proactive safety 

speeches. And yes we have helped many OSHA folks as well, both State and Federal. We continue to work toward an agency that will protect and serve the American workers and their families. 

Losing a loved one on the job is very difficult to deal with but when the very agency that is supposed to protect them, fails in correcting, investigating and prosecuting 

the company that killed your loved one, it is even harder to bare. This agency could 

and should do a better job. But day after day it fails. 

Through the years I have heard many excuses of why this agency can’t do their 

job. I know and will always believe it can do a better job. But it will take a huge 

measure of oversight by this committee and the entire congress to make it work. 

I truly believe that Congress did not mean for OSHA to fail, neither did Congress 

want a jack booted terrorist agency. But what has happened over the years, are lack 

of oversight and a culture of laziness, the only way to make this agency change is 

to change the way we handle it. Oversight and budget restraints is the way to move 

this agency forward, I will give you my ideas for change later in this document. 

The No. 1 questions I have heard from every family member are: Why can’t OSHA 

do its job?; Why can’t OSHA fine the company more?; Why can’t OSHA prosecute 

the company in a criminal manner?; and Why does OSHA reduce the penalties? 

These are all good and fair questions and someone should give us a straight answer 

but to date I have not heard one good reason for any reductions of fine for a fatality. 

In 1995 while working with NBC Dateline show we told America, using OSHA’s 

records, how the agency only collects 50 cents on every dollar they fine a company, 

it still happens today and many companies simply never pay their fines at all and 

because no one seems to check or better yet care, OSHA continues to let violators 

walk away free. All you have to do is check their records to see how low the fines 

are and truly how much a life is worth. Every year there are many cases that 

should be prosecuted for criminal standards but because of the poor investigating 

techniques and the reluctance of the Justice Department to prosecute, after all it’s 

just a misdemeanor to kill an employee. 

These cases fall by the wayside and no one seems to care, except for the family. 

I can tell you I will never stop trying to get someone to listen and help correct a 

real travesty of justice we families experience on a daily basis. OSHA can and will 

be better, I hope I see it in my lifetime and with the help of this great committee 

we can have justice of all our fallen workers. 

I am now going to tell you how you can have a better OSHA, one that is compassionate as well as strong: 

1. Make sure we have regular oversight hearings every 6 months. Make OSHA 

appear and talk about issues raised during the past 6 months. 

2. Have OSHA employees trained in criminal investigating techniques. 

3. Have an ombudsman to represent and help families. 

4. Have a special fatality investigating team. 

5. Take away the discretionary immunity clause that OSHA staff have and open 

these people up to outside scrutiny. 

6. Tie OSHA’s budget to line items to be accomplished each year and make them 

prove its outcome. 

38 

7. Set aside a special budget amount yearly, just for prosecuting and criminal enforcements of bad actors. 

8. Make all OSHA offices follow it’s policy and procedures to the letter. 

9. Make all State OSHA offices be equal to or better than Federal offices. 

10. Have a felony charge for willfully killing an employee, give OSHA some teeth 

and make them bite. 

11. Have the family present during all OSHA settlement meetings with the companies. 

12. Increase the fine structure to send a clear message of the importance of 

human life and limb. 

I will close by saying that even though I was thrust into this fight, I am so proud 

of what has been accomplished over the past 14 years and the many great people 

I have met and the great work that I have been privileged to see accomplished. It 

is not all gloom and doom. There are many great people that work tirelessly each 

and everyday in the OSHA agency to make a difference, there are as in every business bad folks but I feel the good out weighs the bad. When we tap into the good 

and let these men and women shine, we will see the agency we all need and deserve. I would be glad to answer any and all questions and will be glad to help with 

any OSHA issue you may have. I am deeply proud of my country and this great 

committee. Thank you again for this great opportunity. 

The CHAIRMAN. Thank you very much, both Mr. Hayes and Mr. 

Smith. It is very difficult to talk about your loss. We understand 

that. I think what is enormously impressive certainly to me is the 

fact that you have taken this incredible loss and really turned it 

into something that is constructive and positive and useful and 

helpful to others. I think that certainly makes a very powerful impression on all of us. 

Mr. Smith. 

STATEMENT OF DONALD COIT SMITH, RESIDENT, TEMPLE, TX 

Mr. SMITH. Senator Kennedy, Senator Enzi, Senator Isakson, 

Senator Murray, thank you for inviting me here today. 

My name is Donald Coit Smith. My official title is Division Safety Manager for a polyurethane manufacturer. My specialties include inspecting and investigating to OSHA standards. 

I also have the title of father to a son killed on the job. 

On March 26, 2005, my son Donald Wilcher Smith, was electrocuted to death at the Anderson Farms chicken processing plant 

when handling a pump that had 480 volts of electricity flowing 

through it. He was 22 years, 9 months, and 30 days old. 

I do not have the capacity to adequately describe the horror that 

possesses my soul from my son’s death. To lose him caused me to 

reflect on my faith in God. To this day, I have issues with him over 

my loss. 

However, I have come to believe that he took him for a reason, 

possibly to foster events that led me here today. To this, I must 

yield to a higher authority and it is why I do what I do. My mission 

is to do what it takes to strengthen the law so that what happened 

to my son will not happen to anyone else. 

The penalty for killing my son was $12,000, negotiated down 

from only $31,000. That is apparently what my son’s life was worth 

to OSHA and what they were willing to force his employer to spend 

to prevent my son from getting killed. 

How do those two penalties given out for my son’s death affect 

me? Well, frankly, mad does not describe it. The system I have 

worked in for all these years seems to have literally bargained his 

39 

life. For one thing, the penalties were no real incentive for compliance. They are, in effect, a minor cost of doing business. 

OSHA’s mission statement says it is to assure the safety and 

health of America’s workers. Well, let us look at the word ‘‘assure.’’ 

Webster’s defines it as to make certain. From what I have seen 

OSHA does not make anything certain. If I had to change one 

thing that can make a profound difference in OSHA, it would be 

to make fines and punishment and enforcement so severe that employers would tremble at the thought of violating the code. 

I have dealt with OSHA from the employer standpoint, but let 

me tell you that dealing with them from a parent’s standpoint is 

dreadful. It started with the inspection of the death facility and 

getting information on the why and how of my son’s death. I am 

not talking about the obvious fact that he was electrocuted, but 

how could this have happened and why were the events that led 

up to his death not avoided? 

In my study of the situation from the information I have obtained through raw persistence, the root problems that surfaced 

were really simple. There was no commitment by the company. 

There was no deterrent from OSHA. I believe these two items are 

intertwined. 

OSHA documents of law enforcement investigations are kept 

from families’ eyes in part by the Freedom of Information Act. This 

includes negotiations and meetings, even though families follow 

procedures in filing documents to have access to these meetings. 

The meetings I petitioned for access, in accordance to law, took 

place without me ever being informed. It seems in my case OSHA 

was not willing to follow the law. While securing production secrets 

for the good of a company is important to lever any market advantage, when items are covered that could lead to revealing criminaltype actions, the whole legal system and those who made the law 

should be revised. 

Part of that revision should be allowing families of workers killed 

on the job access to all information available, to include negotiations, meetings, and correspondence. This is why I and other families of workers killed on the job are pushing for a family bill of 

rights which would include this paragraph. 

‘‘Family members should have the opportunity to interview 

co-workers and management that have knowledge of the facts 

of the case and any signed affidavits should be submitted, obtained, and applied by OSHA during investigations.’’ 

I will sum with the viewpoint of a parent of a dependant killed 

on the job. Unless laws are changed to allow prosecution and legal 

action to be filed by parents outside of workers comp protection and 

OSHA steps up their inspections with effective punitive actions, we 

will continue to see job deaths on a regular basis. But knowing exactly what happened to their loved ones is important. Just the 

knowledge may help. Allowing this knowledge to escape government and legal cover up is a step in helping families of workers 

killed on the job cope with their loss. 

The one thing I know for sure is that my son died and there was 

nothing I could do about it. The laws of this Nation could not protect him. Fear of violating OSHA standards could not protect him. 

The value for human life could not protect him. 

40 

Thank you very much for this opportunity to have input, and in 

closing this address, I would like to leave you with what I have told 

my sons each time we part. I tell them, ‘‘te amo, mi hijos.’’ And to 

this group I say may God bless you and God bless America. 

[The prepared statement of Mr. Smith follows:] 

PREPARED STATEMENT OF DONALD COIT SMITH

Good morning Senators and thank you for having me at this hearing. 

My name is Donald Coit Smith. My official title is the Division Safety Manager 

for a polyurethane manufacturer with responsibilities for manufacturing plants in 

Texas, Oklahoma, and Colorado. This function I’ve held for over 19 years, with 30 

years in the manufacturing field altogether. My specialties include inspecting and 

investigating to OSHA standards. 

I also have the title of father to a son killed on the job. 

SECTION ONE

I will begin by addressing my experiences with the Occupational Safety and 

Health Administration from the employer standpoint. Having been through several 

OSHA inspections, planned and otherwise, the courtesy and professionalism of those 

inspectors have been exemplary. I can safely say with reasonable accuracy that the 

knowledge gleaned from those inspectors has been a worthwhile activity. While 

reading the Code of Federal Regulations can be sometimes tedious, if not altogether 

aggravating, the times I’ve needed interpretations has been met with understanding 

and patience. I think a salute to those men and women is in order. 

I have unfortunately seen citations and fines issued in some of our plants for various things, none of which were major but nonetheless were citations, and are what 

I consider violations of the law. Those violations were abated post haste, documents 

drafted reflecting the abatements, and a plea entered for immediate withdrawal of 

all fines levied. In all cases that I remember, every fine was reduced at least by 

half and some altogether dismissed. 

This ‘‘process’’ is what was explained to me by my mentor as the proper way to 

deal with OSHA. 

But I did not understand why these reductions were so easy to attain. I attributed 

it to the good nature and ‘‘helping hand’’ of those inspectors in their willingness to 

‘‘settle’’ the account with the least possible effort. I also came to the opinion of viewing it as a possible revenue-generating function of the agency. To this date, I am 

still uncertain of the motivation to settle for less. 

I spoke of fines for citations. In my opinion, what the fines represent is called a 

‘‘cost of doing business’’ among corporate America. The pittance remitted for those 

fines seem, well pretty much just that . . . a pittance . . . or maybe more adequately stated, a nuisance settlement. I do not say they aren’t justified, but rather 

the standpoint of OSHA as I’ve experienced is not one of grit but one of pacification 

and conciliation. On the OSHA Web site the mission statement in part is as follows: 

OSHA’s mission is to assure the safety and health of America’s workers. 

. . . 

Let’s look at the word ‘‘assure’’ closely. Webster’s says it is to ‘‘make certain.’’ Senators, OSHA doesn’t make certain of anything from what I’ve been through. If I had 

to change one thing that could make a profound difference in OSHA, it would be 

to make fines and punishment so severe that employers would tremble at the 

thought of violating the code. 

SECTION TWO

I told you at the beginning that my second title is father to a son killed on the 

job. I do not possess the capacity to adequately describe the horror that possesses 

my soul from my son’s death. To lose him caused me to reflect on faith in my God. 

I still, to this day, have issues with Him over my loss. However, I have come to 

believe He took him for a reason of His own, possibly to foster events that led me 

to being here today. To this I must yield to a higher authority and is why I do what 

I do. I have a mission. That mission is to do what it takes to strengthen the law 

that will prevent what happened to my son from happening to anyone else. Looking 

at the statistics on America’s job deaths, you’ll see that about 6,000 people die in 

America from job-related activities each year. That is a figure that is 6,000 too 

many. 

You know that I’ve dealt with OSHA from the employer standpoint, but let me 

tell you that dealing with them from a parent’s standpoint is dreadful. I have been 

41 

met with resistance at virtually every corner I’ve had to turn. It started with the 

inspection of the death facility and getting information on the why and how of my 

son’s death. I’m not talking about the fact that he was electrocuted . . . that was 

obvious. But how could this have happened? And why weren’t the events that led 

up to his death avoided? In my study of the situation from the information I’ve obtained, the root problems that surfaced were really simple and stood out. A blind 

man could see them in a minute. 

There was no commitment. There was no deterrent. 

There were citations issued to the offending company by OSHA on my son’s death. 

The original set totaled seven . . . all within 29 CFR 1910.147, which is the OSHA 

lockout regulation. 

After the well-versed and experienced OSHA inspector painstakingly reviewed the 

case, making absolutely sure what he was indicating were true violations of Federal 

law, the lawyers for OSHA and the offending company got together and ‘‘negotiated’’ 

out all but two citations. 

The original 7 citations called for a combined penalty of $31,000 with two of the seven citations not having any amount assigned. In the end, a fine of $12,000 was 

paid. It is interesting to note that, according to the OSHA Web site, one of the original seven citations that had zero dollars assigned was placed at $7,000 in the end, 

but the violation summary has the total penalty at $5,000. If I hadn’t seen the pay 

off check with my own eyes I wouldn’t know for sure myself. 

The one thing I know for sure is that my son died and there was nothing I could 

do about it. The laws of this Nation couldn’t protect him. Fear of violating OSHA 

standards couldn’t protect him. The value for human life couldn’t protect him. 

How do the OSHA penalties given out for my son’s death affect me? Well, frankly 

mad doesn’t describe it. And every American should be mad as well. The system I’ve 

worked in for all these years, of which I had great faith, seems to have literally bargained his life. For one thing the penalties are no real incentive for compliance. As 

I said, the penalties are a ‘‘cost of doing business.’’ What makes matters worse, if 

it can be, is the workers comp system which allows the State and the insurance industry (at least in Texas) to benefit from his death. Now to me that’s just morally 

wrong. But that’s another issue I’m working on. 

SECTION THREE

My presence here is two-fold. To let you know how frustrated I am about OSHA’s 

role in prevention of injury in the workplace and to urge you to do whatever it takes 

to get this job death atrocity under control. 

I would suggest placing severe penalties, both monetarily and criminally, on operations violating Federal standards where job deaths occur. Current legislation is not 

a deterrent. Any review of the topic will show too well how little attention is paid 

to it. 

SECTION FOUR

Excerpt from The Family Bill of Rights: Item 5: 

Family members should have the opportunity to interview co-workers 

and management that have knowledge of the facts of the case and any 

signed affidavits should be submitted, obtained, and applied by OSHA during investigations. 

‘‘In viewing what is ‘right’ and what is ‘wrong’ with how families are treated in 

job-related deaths, I believe one must look at our current laws. To the naked eye it 

is obvious the law favors corporate America with regards to keeping information hidden. A closer viewpoint reveals just how this is done. All OSHA documents and local 

law enforcement investigations are kept from families’ eyes (in part) via the Freedom 

of Information Act. This includes ‘‘negotiations’’ and OSHA/company meetings, even 

though families follow procedures in filing documents to have access to these meetings. Seems as though, at least in my case, OSHA was not willing to follow the law 

and no one was there to make them. While securing production secrets for the good 

of the company is important to lever any market advantage, when items are covered 

that would lead to revealing criminal-type actions, the whole legal system (and those 

who made the law) should be revised. 

Part of that revision should be allowing families of workers killed on the job access 

to ALL information available, including negotiations and meetings/correspondence. 

Even investigating law enforcement is blocked from getting this part (ref: Bell County 

Sheriffs Office). 

However, all this is virtually meaningless unless something is done to allow successful prosecution of negligent employers. Right now the only avenue is ‘‘gross’’ negligence and that is akin to the employer holding a gun to the employee’s head and 

42 

pulling the trigger. I believe what is happening in this country is just that . . . only 

the employer’s gun is their apathy and greed. And the law protects them! 

Now at some point OSHA will render its investigation ‘‘public’’ but that is only a 

very small and insignificant document redacted to be almost useless. One can read 

the citations on the Web. This document does not have the interviews and reasons 

why OSHA ‘‘fines’’ are levied. These interviews go deeper to the root cause of job 

deaths. They can point to individuals and company policies that contribute/cause the 

job death. But let’s review: the law protects these people. If a company is a subscriber 

to workers comp, they are untouchable and unless OSHA proves ‘‘gross negligence,’’ 

Federal law keeps them safe. The maximum penalty for gross negligence? A fine and 

6 months in jail (for someone . . . and you can bet it’s not the boss). 

I will sum with the view point of parents of dependents killed on the job. Unless 

laws are changed to allow prosecution and legal actions to be filed by parents outside 

of workers comp, protection, we will continue to see job deaths on a regular basis. 

But knowing exactly what happened to their loved ones is important. Just the knowledge may help. Allowing this knowledge to escape government/legal cover up is a 

step in helping families of workers killed on the job cope with their loss.’’ 

SECTION FIVE: CLOSING

Thank you very much for this opportunity to have input and, in closing this address, I’d like to leave you with what I’ve told my sons each time we part. 

To them I say, ‘‘te amo, mi hijos.’’ 

And to all of you here I say: May God bless you and may God bless America. 

The CHAIRMAN. Thank you very much, Mr. Smith. The best way 

we can try and respond to all of the loss, your loss and others’, is 

to try and do something about all this. We are going to do what 

we can on this. You can be assured of that. 

Mr. Jenson. 

STATEMENT OF GEORGE W. JENSON III, OWNER, JENSON FIRE 

PROTECTION, INC., ELLICOTT CITY, MD 

Mr. JENSON. Good morning, Senator Kennedy, Senator Enzi, 

Senator Murray, Senator Isakson. Thank you for having me here 

this morning. 

My name is George Wyatt Jenson III, and I am President of 

Jenson Fire Protection. We are a residential sprinkler contractor 

based out of Laurel, MD. I often tell my daughter we save lives. 

We install fire sprinklers to save the lives of families. 

I work for a number of large national-level builders throughout 

the area such as Ryan Homes and NVR, M/I Homes, and Toll 

Brothers. We provide our services to custom home builders 

throughout this area, track house builders, condominium builders, 

townhouse builders. I have approximately 10 employees that travel 

throughout the Maryland area working on my behalf. 

As a small business owner, I am here to tell you that the home 

building industry is very difficult right now. We have rising home 

inventories and less and less qualified purchasers to purchase 

these homes. So it is tough. It is really mean out there. 

One of the answers to our situation is not to cut corners or work 

cheaper but to work smarter, and that is what we try to do. For 

example, in spite of the fact that this is not the best market, I provide as an owner to all of my employees 100 percent paid health 

insurance, not HMO, but PPO. I firmly believe that every single 

employee of mine has the right to take their child to the same doctor that my wife and I take our child to. This is even at the disapproval of my accountant who says, George, you cannot do this. 

You should not. But that is what we try to do because of my beliefs. 

43 

The CHAIRMAN. Mr. Jenson, I want to personally commend you 

for it. That is not what this hearing is focused on, but you deserve 

a lot of credit. 

Mr. JENSON. Sorry. I will get back on— 

The CHAIRMAN. That is all right. If you want to talk about health 

insurance, it is okay with me. 

[Laughter.] 

Mr. JENSON. But what I am getting to is the worker safety, and 

that is going to be providing the best level of insurance. I provide 

100 percent tools for all of my guys. I purchase everything from 

boots to shirts to shoes to coats, everything and anything to provide 

them the safest environment possible, again, at the cost of profit. 

What drives me to do that is not OSHA. I hate to say it out loud, 

but as a small business owner, OSHA has been in my 20-year career more urban legend than fact. So what drives me are economic 

incentives. Every single year, January 26, at 12:00 a.m., my liability insurance on my company lapses. At 12:01, the 27th, is when 

it reenacts. It is one of the most difficult and daunting tasks getting reassigned a new insurance policy. So we have to have no 

incidences. We have to have no workers comp claims. We have to 

have no loss of time due to injury on the jobs. So we take an incredibly proactive approach at putting this together. 

So I am driven by worker safety from a humanities perspective 

because, God forbid, I could not imagine looking at myself in the 

mirror knowing someone got hurt on my dime. Therefore, I spend 

a lot of my dimes to try to keep that from happening at the risk 

of profit. 

And I will tell you I have been in this business for 20 years. I 

have been in business on my own—this is my third year. We began 

to put it in a perspective, $50 per $1,000 in revenue is based on 

liability, which is completely associated with safety. 

This year I celebrated 2 years of incidents free and my rate was cut in half. I am paying $25 per $1,000 in revenue. We do $3 million to $5 million in revenue. It is a lot of money. 

So in addition to these things, we try to provide the best of everything for these guys. Again, OSHA is not motivating me for this, 

and I have never seen an OSHA fine in my life. I do not even know 

if I know anyone who has ever received an OSHA fine. So, again, 

to me they have been urban legend. 

My builders have policies in place. I have contractual agreements 

with them that says I have to provide this particular safety device. 

The final thing that I will say is that the most daunting task 

that we have is getting around the Capital Beltway safely, and 

OSHA does not have any jurisdiction over that beltway. And that 

is very dangerous. Many of you travel the beltway. There is no 

guarantee you are going to get home. 

OSHA did not tell us, but my insurance company with my annual audit suggested to me, why do we not go with this Nav Track 

situation. What this does is it is a global positioning device that attaches to my vehicles and it can monitor the speed, it can monitor 

the turns, whether it was a left-hand or right turn, and I have it 

all documented on a computer and I have a screen that will show 

exactly where my vehicles are. So if driver A is doing 80 in a 60, 

I can address that. I can address that within 5 minutes the moVerDate Nov 24 2008 14:56 Nov 10, 2009 Jkt 035165 PO 00000 Frm 00047 Fmt 6633 Sfmt 6601 S:\DOCS\42210.TXT DENISE
44 

ment I look up on that screen and see that truck moving and know 

where he is. 

OSHA is not causing me to do this. What is causing me to do 

this is economics. In order to be competitive in the marketplace, I 

have to keep my risk at an ultimate low. If I do not, it will not be 

OSHA that puts me out of business. It will be the fact that I cannot 

get insurance. 

So thank you for your time. 

[The prepared statement of Mr. Jenson follows:] 

PREPARED STATEMENT OF GEORGE W. JENSON III 

Good Morning, Senator Kennedy and Senator Enzi. Thank you for inviting me 

here this morning to talk about the very important issue of worker safety. My name 

is George W. Jenson III. I am the President of Jenson Fire Protection, Inc., based 

in Laurel, MD. My company works in the home building industry as a full service 

provider of fire protection systems. The bulk of our work involves the installation 

of residential sprinkler systems. We serve a number of national-level builders such 

as NVR, Ryan Homes, M/I Homes, and Toll Brothers. In addition we provide our 

services to custom home builders, tract house builders, and condominium builders. 

I have a workforce of approximately 10 employees that travel and work on construction projects throughout the State of Maryland. 

These are not easy times for any small business owner in the home building industry. We are caught between rising home inventories and a decreasing number 

of qualified purchasers. Our answer to this situation, however, is not to cut corners, 

or work cheaper. Our answer is to work smarter. For example, in spite of the fact 

that this is not the best market, I continue to provide my employees with the full 

range of benefits including largely company-paid health insurance. I continue this 

practice even during tough times not only because it is the right thing to do—it is 

also the smart business thing to do. Like every other good businessman, I know that 

the most valuable asset of my company is the people that work there. I want to recruit and retain the best people I can, because they directly affect my bottom line. 

I have the same view when it comes to the safety of my employees on the job. 

I want to make sure they are working and traveling in safe conditions not only because it’s the right thing to do, but because it is also the smart business thing to 

do. 

Concern over a possible inspection by OSHA or Maryland State OSHA, or concern 

over a fine that might be imposed as a result of an inspection is not what motivates 

me to make working conditions as safe as I possibly can. Over my years in the business I have rarely seen an inspector on the job site, I have never been cited, and 

I honestly don’t know how much an employer can be fined by the government for 

a safety violation. However, I devote effort and resources every day to ensuring that 

my workers are safe. I spend tens of thousands of dollars on safety equipment, make 

sure my people are properly trained in safety practices, monitor our procedures and 

work practices, and do everything else I can to make sure our employees work safe. 

As I said, I do this first and foremost because I am genuinely concerned about my 

employees. Fortunately I have never had an employee who has been seriously injured or killed on the job. Frankly, I think that is something that I would never 

recover from if it happened. To me, anyway, there couldn’t be anything much worse 

than feeling you were responsible for something tragic like that. 

Apart from my personal feelings, however, I place this emphasis on worker safety 

for very sound business reasons as well. From general liability, to workers’ compensation, my company’s insurance premiums are a huge cost of doing business. I 

cannot operate without insurance coverage, but it is a constant struggle to pay the 

cost of such insurance. A serious accident, or an on-the-job injury carries the real 

potential of raising my rates to the point that I could no longer remain in business. 

From a pure dollars and cents perspective, maintaining a safe workplace does not 

have much to do with avoiding a government fine. Fines don’t put you out of business, but insurance costs do. 

As a small businessman, one thing that has helped me a great deal in maintaining a safer workplace is not the government, it has been my own insurance carrier. 

My carrier doesn’t want the huge cost of claims, or the exposure to increased liability any more than I do. Consequently, they are proactive about preventing accidents. 

At least once a year, my carrier actually comes and audits my work practices, procedures and equipment. They make practical suggestions about how to work safer, 

eliminate risk, and use training and equipment to make our employees safer. As I 

45 

mentioned, I’ve rarely seen any government safety people on the job site, and I’ve 

certainly never seen them involved in this kind of preventative work. 

There may be some employers out there that don’t care about safety, but I haven’t 

seen them. The truth is if they don’t care, they’re probably not going to be in business long enough for me to know them. Most all of the employers, large and small, 

that I deal with day to day are no different than I am. They want a safe workplace 

because it is right for their employees, and because it makes bottom line sense for 

their business. We are on the same page with government on this score. 

Many of us are struggling these days to keep our heads above water and to keep 

our employees working. If the government wants to help, it should do what our insurance companies do—help us to work more safely—not just look to fine us when 

something goes wrong. Thank you. 

The CHAIRMAN. Well, thank you very much, Mr. Jenson, for telling us about your own experience and what drives you. You are to 

be commended. I do not think there is any of us that doubt that 

it makes a lot of good sense to have good health and safety records 

from a sound business point of view. 

I think the most convincing, of course, for me was Paul O’Neil 

of Alcoa, a Republican in President Bush’s cabinet, who took Alcoa 

from being one of the great American companies that had a lot of 

problems in terms of safety issues and made it No. 1, front and 

center. Paul O’Neil has testified and talked to me about it. I have 

traveled with him down to Pittsburgh to find out how he did it out 

in the field, and he says, it is the best business, keeping people 

healthy, keeping them safe. 

Penalties are not going to do it for the Paul O’Neils, but there 

are people out there that are not as highly motivated as you. And 

we are asking ourselves, should people that go into the workplace 

and maybe not have an employer that is as committed as you are 

risk their lives and their families lives because they have an employer that is not as thoughtful as you. So that is something. 

But I thank you for being here and for your message. 

I would like to ask Mr. Uhlmann a question. We had Jerry 

Scannell here, who was the Republican head of OSHA for the first 

Bush administration. He said that corporate America only pays attention to high fines, threat of jail, and bad publicity. Those were 

the areas that he said. 

In your experience, do you think that there are companies that 

treat OSHA penalties as just a cost of doing business? And do you 

know of any examples of where Congress has increased penalties 

and we saw a meaningful change in corporate behavior? I am probably interested in the second question first. 

Mr. UHLMANN. Well, Congress changed the environmental laws 

and it made a dramatic change in corporate behavior. When the environmental laws were enacted, it was the same time that the Occupational Safety and Health Act was enacted, 1970’s. Those laws 

were all misdemeanors with low penalties. We saw very little law 

enforcement activity, but many issues with compliance with the environmental laws. In the 1980’s, so now over 20 years ago, Congress changed the environmental laws so that criminal provisions 

were felonies. They increased the possible fines under the civil provisions, and we have seen a dramatic increase in compliance in the 

United States. 

I wish this were different. I used to say at the Justice Department that our job was to put ourselves out of business. Our job was 

to prosecute enough cases that there no longer would be a need for 

46 

anybody to enforce the law. And I wish that every company was 

like Mr. Jenson’s or like Senator Isakson’s company or the way 

Alcoa is today. 

But that is not reality. That is not the way it is in the United 

States. That is not the way it is anywhere in the world. And there 

are always going to be companies like the one I described during 

my prepared testimony, and it is not just going to be small companies like Evergreen Resources. I mean, we prosecuted British Petroleum, the largest oil company in the world. 

We prosecuted a company called McWane, which is a great example of the first part of your question, Mr. Chairman. You asked 

were there companies that just paid no attention to OSHA fines, 

and McWane is probably the best example that I know of. McWane 

is one of the world’s largest pipe manufacturing companies, billions 

of dollars of sales every year. They could spend the money on compliance, but they chose not to. They chose not to even though they 

had scores of violations, scores of deaths at their facilities, OSHA 

was out there all the time. I mean, they were not urban legend at 

McWane. They were there all the time, but they were issuing these 

small penalties. There was never any kind of significant enforcement at McWane. 

And it was not until we took a look at McWane over the last 5 

years, prosecuted them at five different facilities, imposed multimillion dollar fines under the environmental laws, sent their senior 

management to jail that that has changed McWane, or at least that 

is what McWane is now saying. They have hired former OSHA directors. They have hired former top Justice officials to advise them 

about compliance. They are making a real effort at change. 

But I just think there are always going to be companies like that, 

and unless you have a credible enforcement threat at the upper 

end for the, hopefully, small number of cases where you need it, 

you are not going to get compliance all the way up and down. 

The CHAIRMAN. Well, are we relying on the environmental laws 

because OSHA will not enforce the laws more aggressively or because OSHA does not have the adequate tools to do the job? Why 

does the Justice Department not prosecute? Why don’t the Justice 

Department prosecutors want to bring the cases under OSHA? 

Mr. UHLMANN. Well, they are misdemeanors, Senator. The Justice Department is a big place, but it still has limited resources, a 

lot of different law enforcement priorities, and the Justice Department always has and always will emphasize criminal prosecution 

of the laws that Congress deems the most serious by making them 

felonies. These are misdemeanors. You are never going to see significant prosecution for worker safety crime under the Occupational 

Safety and Health Act as long as it remains a misdemeanor. It will 

not happen. Ten cases in the last 5 years. One of those was done 

by my old office, by the way, with a $4.2 million fine because we 

were more aggressive about how we were prosecuting these cases. 

That was McWane. I think that made a difference. But if these 

cases remain misdemeanor cases, you are going to see an occasional case like you do today and you are never going to see anything more. 

The CHAIRMAN. Peg, is there anything you want to add on this? 

47 

Ms. SEMINARIO. I think that David has hit on it. What needs to 

be done is to make very clear that workers’ lives are valued and 

that there are really serious consequences for actions that put 

workers in danger. Right now there is nothing in the law that does 

that. There is no message. So, what happens is that each of these 

deaths, which are tragedies, really are treated by OSHA sort of as 

a routine matter, and so there is not the import that needs to be 

there to send a very clear message that this kind of behavior will 

not be tolerated. 

The CHAIRMAN. And just finally, how have the penalties changed 

in the last 30 years? 

Mr. UHLMANN. Well, they have not changed at all, and that is 

part of the problem that Mr. Hayes talked about. I mean, a $70,000 

fine in 1970 when I was 8 years old was a lot of money, and it is 

just not a lot of money for companies today that have multimillion 

dollar profits. 

We should be clear. This is not all companies. I am not saying 

that corporate America does not care about worker safety and does 

not care about compliance with the law. I think a lot of companies 

make it a top priority and a lot of companies spend a lot of money 

on it. And frankly, those companies should not be at a competitive 

disadvantage against the companies that do not spend the kind of 

money on compliance that Mr. Jenson described. It is just not 

right. It is just not fair for some companies to get away with shirking their legal obligations, and yet that is what happens and that 

is what will continue to happen unless there is a credible threat 

of criminal prosecution for violations of the worker safety laws. 

The CHAIRMAN. Senator Enzi. 

Senator ENZI. Thank you, Mr. Chairman. I want to thank everybody for their testimony. It has been helpful. I have written down 

a lot of suggestions here. I am still trying to work on the comprehensive package. 

Ms. Seminario, the Federal Government currently requires drug 

and alcohol testing for a broad range of workers in the transportation industry. That affected one of my clients when I was doing 

accounting, and it drove down the number of highway fatalities— 

or accidents, not fatalities. There is no doubt there are many nontransportation jobs in which drug and alcohol use or impairment 

pose equally serious risk to workers’ lives and safety. 

Would your organization support changes in the law that would 

extend federally mandated drug and alcohol testing to such jobs? 

Ms. SEMINARIO. As far as changing the OSHA law to have OSHA 

get into the business of drug and alcohol testing, we do not think 

that that is really a good idea. 

From our experience, the majority of workplace fatalities are occurring because of unsafe conditions, fires and explosions, as I said. 

You have got all kinds of injuries occurring in the workplace. And 

so the majority of OSHA’s focus should be on those hazards themselves. 

There are industries certainly where the drug use and the alcohol use are more of a problem. Different unions have engaged their 

collective bargaining and agreed to testing under strict protections 

for workers. But I think that while that may be a problem in some 

situations, that is not the major problem, and I think it diverts us 

48 

from really focusing on the hazards that are present that need to 

be dealt with. Again, that is not to minimize that where drug and 

alcohol use is a problem, that it should not be dealt with, but in 

my view that is not the major problem. It is not the major source 

of workplace fatalities or workplace injuries in most workplaces in 

the United States. 

Senator ENZI. As you and Mr. Uhlmann mentioned, we need to 

look at this comprehensively. In fact, everybody mentioned we need 

to look at this comprehensively, and I think that is one area that 

needs some examination. 

Ron, I want to thank you for being here today and for all your 

good work in the field of workplace safety and the way that you 

comfort families who have gone through the same sort of thing that 

you had to. You are very good at it and it makes a huge difference 

to families. 

Over the years, we have worked together on this issue, and I believe we need to view this comprehensively. And I noticed your testimony did not mention a number of the provisions that I have 

urged over the years as being a necessary part, for instance, third 

party safety consultation, the VPP expansion, drug and alcohol 

testing, enhanced worker training and compliance assistance, and 

other preventive measures. Do you still support those measures as 

a large part of the overall approach, or has your position changed 

on that? 

Mr. HAYES. No. My position has never changed. That is why I 

said OSHA should be 50/50. Their budget should be split right 

down the middle. 

You know, a few years ago, you and Senator Kennedy took the OSHA budget, when they wanted the $32 million increase, and you 

split it up, and you asked OSHA to use $16 million to put a consultant in all 67 OSHA offices. Up until that point, OSHA did not 

like the idea of consultants. They were not going to spend the 

money to do it. They did not think it was worth it. But in all the 

hearings I have been to through the years, I heard small businessmen talking about needing help. Well, you all did it. You set it up. 

You made them do it. 

Now it is the best thing since sliced bread. OSHA loves it. We 

have one person in each office. We actually need two or three now. 

They are overbooked. But I have seen it work in the State of Alabama and different States. I have seen these consultants go out 

there and do a great job and we are bringing down those things. 

All these other ideas you are talking about, I think everything 

needs to be on the table. I gave you just a thumbnail sketch of 

what I think OSHA should look like. 

I would like to make one comment to Mr. Jenson. I personally 

think that he is at a disadvantage because the reason he has so 

many problems getting insurance and fighting to get insurance is 

these bad actors we have. I mean, he is doing a great job with his 

company. 

But what do you do with a company that Pat worked for when 

the corporate safety director said to OSHA the next morning after 

Pat was killed, our company operates under the roll of the dice philosophy, that being we will not change our ways until something 

bad happens? Well, guess what, folks. Something bad happened. 

49 

Pat died. And they did change their ways, but OSHA did not make 

them. I made them. OSHA did not do anything to them. In fact, 

the regional administrator in Atlanta went on record stating he 

was not even going to issue any citations to this company for killing Pat. Of course, we all know now that was all a mistake and 

it was a mess with all that. 

But how does a family get justice and dignity and honor with an 

agency that is worthless? I am still a strong supporter of OSHA, 

always will be, but they have to be made to work. And the only 

people that is going to make them work is you guys. You are the 

people that have the control. I cannot make OSHA prosecute somebody. I cannot make the Justice Department. I can help them in 

a positive way. I can coach them. I can kick them, but I cannot 

make them do it. You have to write the law that makes them follow it. That is the only way it is going to work. 

Thank you. 

Senator ENZI. Thank you. My time is expired here. I have lots 

of questions yet. 

The CHAIRMAN. Senator Isakson. 

Senator ISAKSON. Thank you, Senator Kennedy. I want to thank 

you for allowing me to be a cosponsor with you on the amendment 

recommending what Mr. Hayes did with regard to family involvement prior to adjudication of OSHA. I think that is a tremendous 

recommendation and one of many that we need to move forward 

on. 

I want to thank you, Mr. Smith, for your compelling testimony 

and your willingness to be here. It is very helpful to all of us. 

Mr. Uhlmann, I made notes, and my writing is as bad as my eyesight, but I want to make sure I got this right. In the Elias case, 

he knowingly injected cyanide into the environment and then 

knowingly allowed the employees to be exposed to it. And under 

OSHA, because nobody died, there could not have been a criminal 

charge. Is that correct? 

Mr. UHLMANN. That is correct, Senator. 

Senator ISAKSON. Had one of those people died, there could be a 

criminal charge? 

Mr. UHLMANN. We could have prosecuted him under the Occupational Safety and Health Act, charged him with a 6-month class D 

misdemeanor, but that would have been it. 

Senator ISAKSON. If somebody had died. 

Mr. UHLMANN. If somebody had died. 

Senator ISAKSON. Under the environmental law, what would 

have happened? 

Mr. UHLMANN. Under the environmental laws, he was charged 

first with knowing endangerment, and the crime of knowing 

endangerment means that you commit a violation, in this case, of 

the hazardous waste laws knowing at the time that you thereby 

place another person in imminent danger of death or serious bodily 

injury. That is a felony and the maximum penalty is 15 years in 

jail. 

Senator ISAKSON. If any of you know, correct me, and I imagine 

Mr. Uhlmann is probably the person and possibly Ms. Seminario. 

In the 5,703 workplace deaths reported last year, it is my understanding that is the aggregate number of people who die regardless 

50 

of the cause of death, as long as they were involved or engaged in 

the workplace, meaning they could have had an automobile accident or a truck accident driving for you, Mr. Jenson, or could have 

had a heart attack. And I am not minimizing things here. I am just 

trying to find out if that is correct. Is that correct? 

Ms. SEMINARIO. It is those deaths that are determined to be 

work-related, and so yes, if it is a transportation, highway incident—the person is engaged in work—yes, it would be work-related. As I said, the figures were revised a couple of weeks ago, and 

the toll for 2006 is now 5,840 deaths that occurred in 2006. And 

because of that revision, the numbers were higher but the rate also 

did not decline. 

But what you see, as I said in my testimony, when you look at 

what is occurring, the highway incidents over the years have basically flat-lined. The homicides have gone way down, which is good 

news. That is the No. 2 cause. But these problems and these 

deaths that are occurring from fires and explosions, falls, people 

being crushed, those are increasing, and that to me is what is really, really troubling. Those things that are well recognized hazards 

that we have standards for, that we should be able to do something 

about—those deaths are on the rise. 

I agree with Senator Enzi’s suggestion that we look in more detail into what is going on, look beyond the totals and look to where 

this is occurring, what the problems are, what kind of employers, 

and try to fashion not only some overall solutions but some interventions that go to the heart of those problems. 

Senator ISAKSON. I concur with that. What I am trying to get to 

is sort of a comment Mr. Uhlmann made to Mr. Jenson. You need 

to compel the person that willfully rolls the dice, as was stated by 

Mr. Hayes, and waits for something to happen. But you also do not 

want to throw a net down that takes an employer into a felony position when the employee is on drugs when the incident takes place 

or the employee willfully violates what is clearly demonstrated as 

well-trained, well-noticed, well-protected against, etc. 

So that is one of the reasons I asked the question because if one 

of my employees is making a delivery and they have a traffic accident and they violate the law and they unfortunately die, that is 

a terrible thing, but should the employer be charged with a felony 

in that case? I think not if there is a contributing and mitigating 

factor. So I am not necessarily disagreeing with what you all are 

saying, but I am trying to point out it works both ways. 

I agree with Senator Enzi on the drug testing. I had pre-employment drug testing in my company primarily because of the type of 

accidents that take place with lawn mowers and heavy equipment 

in the development business if somebody was engaged in taking 

narcotics or using alcohol. My point is, there have to be compelling 

factors for the negligence to be the threshold for the felony, I would 

think. 

Mr. UHLMANN. Senator Isakson, I could not agree more. I think 

accidents happen in life and it is unfortunate when they happen. 

But criminal prosecution is not appropriate when an accident happens. 

We used to say at the Justice Department that accidents waiting 

for a place to happen are not accidents, and when somebody, I 

51 

would say, knowingly rolls the dice, I mean, they know they are 

rolling the dice, they do not have to know it is illegal to roll the 

dice. They should not have to know it is illegal to roll the dice. And 

that is what we are concerned about. We should have the ability 

in this country in this age, in a modern society like ours, to say 

that a company that knows it is sending its workers into an unsafe 

environment, knows it is rolling the dice, knows it is putting workers at risk, that they may face felony prosecution. 

The Justice Department does not have a long track record of 

doing a whole lot of these cases. So I am not too worried they are 

going to suddenly start criminally prosecuting every case under the 

sun. But if they were to start trying to criminalize accidents, I 

mean, judges and juries will bounce them right out of the courtroom. That is not appropriate use of criminal prosecution. That 

should not happen. It certainly would not have happened under my 

watch. But it is those egregious cases that we need to be able to 

address, and right now we cannot. 

Mr. HAYES. Senator Isakson, I would like to make a statement, 

if you do not mind. Coming from someone that lost a loved one in 

the workplace, I believe these cases have to be on a case-by-case 

basis. I know a lot of great companies. I know a lot of companies 

that has had fatalities that were horrible, and they should not have 

been prosecuted under a felony charge. But you have got companies 

that have to be, and unless we get a felony charge in the OSHA 

act—because let me tell you what I did with the State. 

There are State laws, reckless endangerment. I went to the State 

attorney of Florida. It took me about 6 months to make them look 

at this case. They then requested the OSHA file. OSHA refused to 

give them a file, even under subpoena, for a year. The State Attorney was telling me the entire time with the evidence that I had 

given him and the evidence they collected, that they could prosecute under State law. I thought we might have something here because OSHA was not going to do it. 

Then the State Attorney had to sign a waiver in order to get 

Pat’s file from the OSHA department stating they would not use 

any of the OSHA information for prosecution under State law. I 

was called into the State Attorney’s office with my attorney, and 

they said we have got to drop it because we cannot use any of that 

evidence and we cannot get collaborative evidence now. 

Where did that leave me? I can tell you I have been thrown out 

of the FBI’s office several times trying to get them to look. That 

ain’t going to happen. There is no justice for us when we have a 

company that is blatant. We have to have the felony charge. 

Senator Enzi and I have been talking about this since 1999, and 

he was really good last year to mark it up in the SAFE Act. Of 

course, it never made it out of committee. 

Senator Kennedy and Senator Corzine a few years ago brought 

up the felony charge. 

We have to have all of you guys and ladies and gentlemen to put 

your mind together and say let us come up with a plan that is a 

case-by-case basis where we can go after the bad actors, where we 

can help the Mr. Jensons in this country, where we can show some 

justice and dignity and honor to the workers. That is what we have 

to have. That is why we are here today talking. That is why I am 

52 

talking blue in the face for 14 years for the same, identical thing 

I said 14 years ago. I want to see a felony charge before I die, guys. 

Just give a father that one little thing. 

Senator ISAKSON. Thank you, Mr. Hayes. 

Mr. HAYES. Thank you. 

Senator ISAKSON. Thank you, Mr. Chairman. 

The CHAIRMAN. That was a very eloquent and moving statement. 

Let me just ask, Mr. Hayes, in addition to the help for the family, could you just—we talked about the inadequacy of the penalties, but we are also concerned about how OSHA treats and deals 

with families under these circumstances. This is really my final 

question. Then maybe Mr. Smith could say a word just about that. 

We can come back to you. 

Mr. HAYES. Well, Charles Jeffers really did a great job in 1999. 

He asked me to go to the OSHA training institute and do a 1-hour 

sensitivity training class, and I did. And there is a memorandum 

and a policy that before any fatality for Federal OSHA, that they 

review this tape, which does not happen because your regular offices out there, your little area offices—that is their own little 

power deal. They do not do anything that they are told by the national office. It should be watched. Don and I actually took the tape 

and produced it and sent it to all 27 OSHA States. 

And I will tell you a great success story is the State of Wyoming. 

In 1999, Senator Mike Enzi asked me to come to Wyoming and talk 

to his workers comp division in OSHA, and at that time, we set up 

a special policy for the OSHA office of Wyoming to call the families 

every 2 weeks. And I helped Johnny Long and Wayne and Steve 

set it up. And they actually call the families every 2 weeks and talk 

to them about the file, tell them where they are on inspections. We 

have had several cases in Wyoming that they could not issue a penalty because it was not an OSHA violation, and the families handled it. They were helpful. They were okay with it. 

I only get involved in Wyoming cases if they have a really tough 

case, but because they show that compassion, they show that respect and dignity, we have gone from four or five calls a year in 

Wyoming to zero except helping Johnny maybe on a difficult case. 

The State of North Carolina has a full-time ombudsperson and 

Steve handles every case unless it is a very difficult one, and then 

I get involved there. 

We have a lady in Oregon that actually lost her brother on the 

job, and she helps the families there. 

The Federal OSHA will not even give out my pamphlets. They 

will not hand my pamphlets out to the families. They do not want 

the families to know. The only way the families get in touch with 

me from Federal OSHA is if the family starts causing problems 

calling you folks, calling the media. That is when OSHA says, we 

better get some help. But by that time, it is a year or 2 years old, 

and I can help the families but I need to be up there up front. 

I got a great case in Oregon a couple years ago—mine safety. Actually they send more families than OSHA does. They sent a family 

to me, and Rick called me. They buried his son on Monday, and on 

Tuesday morning, Rick called me and I started working with him. 

If he was here today, he would tell you that within a week’s time, 

I had him doing certain things that would have taken him a year 

53 

on his own. I know the system in and out. If I can get in touch 

with them, I would be glad to help. 

But OSHA does not want me to be in touch with these families 

because I know too much and I ask too many questions, and I put 

the eye on them. I put the family to work immediately getting files, 

getting response from other workers, putting information together, 

and actually going after them. 

We have a perfect example this year in Kentucky. We had two 

families. One family contacted me in August, and I started helping 

that family. They got in touch with State OSHA because OSHA 

had not talked to them before. They started asking them specific 

questions that I gave them. At the end of that case, the company 

was fined $150,000. They had 16 citations. 

Another case where this family sent a new family to me—their 

son was killed in April. They never talked to OSHA. They never 

talked to me until the last month. They got one fine for $4,500 because they did not know what to ask, where to go for help, how to 

get the information. They did not know enough. 

OSHA is not going to help them. In fact, in the State of Kentucky, they do not want to release the file for 6 months because 

that is another issue with OSHA. If they can keep that file closed 

for 6 months, you ain’t going to reopen it. God can’t reopen that 

case. If I do not get involved early on to help these families get this 

information, they get nothing. They really get the shaft, guys. 

The CHAIRMAN. Well, thank you all very much. This has been 

very—excuse me. 

Senator ENZI. Could I do two more questions? 

The CHAIRMAN. Sure. 

Senator ENZI. Actually I have got a whole bunch more questions, 

and I will submit them to each of you because there is more information we need if we are going to do this comprehensively. 

Mr. Uhlmann, since you have been involved in some prosecution, 

I want to know who should be the person that gets prosecuted in 

one of these OSHA criminal cases. Suppose the person who willfully violated the safety rule resulting in a worker’s death is not 

the owner or the manager, but perhaps a co-worker or a supervisor 

further down. Would you support criminal prosecution of that individual? And would that be possible? 

Mr. UHLMANN. Well, it would not be possible under the current 

OSHA law. Obviously, the decision about whether to prosecute in 

a specific case has to be based on the law and based on the facts 

of that case. Mr. Hayes correctly pointed out prosecutorial decisions 

have to be made on a case-by-case basis. 

But my view is that individuals should be eligible, if you will, for 

prosecution under the Occupational Safety and Health Act if they 

knowingly place other people in unsafe working conditions and that 

conduct places other people at risk of serious bodily injury or 

death. So I would not limit the liability as it is limited under the 

current law to the employer, you know, the top corporate official, 

because in the Elias case, the top corporate official was Mr. Elias, 

and he was the person giving the orders. But so much of the time, 

particularly in bigger companies, there are layers and layers of 

management, and you want to impose the liability at that lower 

mid-level of management where the action is really happening, 

54 

where the illegal conduct is occurring, where the orders are going 

out. So that is the change I would make in the existing law. 

Senator ENZI. Thank you. That clarifies it and that helps a lot. 

Mr. Jenson, you mentioned that the insurance company plays a 

big role in helping keep your workplaces safe. Does your insurance 

carrier provide any—besides suggestions for what you need to do 

and I assume following up on them, do they provide any specific 

rebates or premium reductions based on your implementation of 

specific safety practices or the purchase or use of safety equipment? 

Does the State of Maryland offer any tax incentives for what you 

are doing with the safety-related equipment purchases or safety 

training or anything like that? And do these things help or would 

they help if they were implemented? 

Mr. JENSON. The State of Maryland offers no sort of tax incentive 

that I am aware of or have taken advantage of. My insurance company specifically offers a significant reduction in rate for no occurrence, whether it is injury on the job, a risk injury, property damage, or anything like that. So yes. Over the 2 years that we have 

been in business, we have been able to capture a 50 percent reduction in rate, which is a tremendous amount of savings for us. Still 

this year, we are heading in the direction of no risk—I mean, no 

injury, no loss, or anything. So yes, that is privately done, but as 

far as the State, I am not aware of anything that I have been able 

to take advantage of from a tax perspective or OSHA I guess. 

Senator ENZI. Does the insurance company come through and 

kind of do a safety audit and suggest things to you? 

Mr. JENSON. Absolutely, absolutely. Again, I said that my insurance policy renews every January 27 at 12:01. We began getting together mid-year to kind of do a snapshot of what is happening thus 

far. They come to my office. They also go to sites randomly. They 

do not tell me when. I give them an indication of where we are for 

a week or two. So that begins in the middle of the year, and then 

they will come around November, as we get ready to submit for 

new insurance for the following year. So I get audited. I get visits 

quite frequently, at least twice a year. 

Senator ENZI. Thank you. All of this has been very, very helpful, 

and there are obviously quite a few things that we could do. We 

never get anything done comprehensively, of course, but maybe we 

can do some different pieces again that will make things safer. And 

I think that is our goal. 

So I thank you for holding this hearing. 

The CHAIRMAN. Mr. Smith, I asked Mr. Hayes who gave a very 

eloquent statement—I would like to hear from you, if there is 

something you would like to add. 

Mr. SMITH. I do not pretend to be as eloquent as Mr. Hayes. 

The CHAIRMAN. You do pretty well. 

Mr. SMITH. But I can safely say with reasonable accuracy that 

had I not had the experience that I have in dealing with OSHA, 

I would not have been able to go as far in learning more about my 

son’s death. The red tape is just tremendous. Knowing how to surf 

through that and who to contact for help is a tremendous advantage. And that really should be available to all Americans. 

Thank you. 

55 

The CHAIRMAN. Very good. Well, you are absolutely right. It 

should be. We will certainly work on that and other factors. 

I want to thank all of you. It has been very instructive, interesting, and informational for us all. I am very grateful to all of you. 

We may have some other follow-on questions. We will get them to 

you. Yes, we do have some follow-on questions. We will get those 

to you soon. 

The committee stands in recess. 

[Additional material follows.] 

56 

ADDITIONAL MATERIAL 

PREPARED STATEMENT OF SENATOR OBAMA

Given that yesterday was Workers Memorial Day, it is a fitting 

time to look at the Department of Labor’s performance in enforcing 

workplace health and safety laws. And the report that the majority 

issued today proves that the agency is failing on the job. I thank 

the Chair for holding this hearing and for fulfilling this committee’s responsibility to demand that the Administration enforce the 

laws that protect workers. 

For the last 7 years, the Department of Labor has used its regulatory authority, like its sister agencies, as if its mandate were to 

err on the side of corporations over the public interest—even when 

its decisions undermine the spirit of the law and puts workers’ 

lives at risk. The report that the majority staff has prepared, ‘‘Discounting Death: OSHA’s Failure to Punish Safety Violations That 

Kill Workers,’’ shows that the Occupational Safety and Health Administration (OSHA) systematically imposes small fines on employers, even in cases where safety violations led to a worker’s death. 

And it almost immediately discounts a fine if the employer contests 

it. 

By some estimates, more than 50,000 Americans lose their lives 

every year due to workplace accidents or job-related illnesses. This 

unconscionable number of deaths in a single year roughly equals 

the number of American soldiers lost in battle during the entire 16- 

year Vietnam War. For American workers, that’s about one workrelated fatality every 10 minutes—or 137 working families every 

single day who suffer a terrible tragedy, losing a father or mother, 

a husband or wife, a son or a daughter. In the report this committee issued today, a few of those husbands and wives and fathers 

and mothers express their pain of loss and deep distress that 

OSHA has refused to penalize firms to a level necessary to lead to 

safer workplaces and discourage additional deaths. 

The stories included in the report remind us that there have 

been cases across the country where employers were cited for serious violations of our workplace safety laws but escaped with a slap 

on the wrist. OSHA used the informal settlement process to slash 

fines for employers and with each such action further undermined 

the deterrence effect of enforcement. And even where minimal fines 

were imposed, OSHA has failed to collect them in growing numbers 

each year. Combined, these actions invite employers to cut costs, 

even if it means putting their employees’ lives at risk, with the assurance that the watchdog agency will not bite. 

In the face of this Administration’s abdication of responsibility, 

it is clear that Congress must play a greater role in improving 

workplace health and safety. 

OSHA must be reinvigorated so that it can spearhead reductions 

in workplace fatalities, injuries, and illnesses. Public servants committed to the agency’s mission of advancing worker safety and 

health should lead OSHA and the Mine Safety and Health Administration (MSHA). In addition, Congress must fund both OSHA and 

MSHA at higher levels to assure that there are more inspectors to 

reach more of the most dangerous workplaces. Real funding levels 

for OSHA and MSHA have not increased during the last 7 years, 

57 

even though the number of workers and workplaces covered has 

grown significantly. These new resources would also allow OSHA 

to build productive relationships and partnerships with business, 

labor, and non-profit organizations that can reduce injuries and fatalities. Rebuilding the leadership and strengthening the funding of 

these agencies is a starting place for a sound workplace health and 

safety policy. 

In addition to increasing the enforcement staff to facilitate more 

inspections of dangerous workplaces, OSHA needs better and more 

strategic enforcement tools to deter noncompliance among those 

employers who disregard worker protection in favor of production 

speed or profit. OSHA can and should also improve how it targets 

inspections, so that its investigations focus on the employers and 

industries that pose the greatest risks to workers. It can also adapt 

its policies to make sure that employers do not avoid health and 

safety responsibilities by outsourcing work through subcontracting 

or misclassification of employees. OSHA enforcement should send 

a clear message to companies and their subcontractors about their 

fundamental responsibility to provide a safe workplace. 

With specific regard to penalty policies, OSHA must have the 

requisite authority to impose meaningful penalties for noncompliance, particularly in the case of serious, repeat, and egregious violations. The bottom line is that when an employer exposes workers 

to serious hazards, it should pay fines that are more than just an 

ordinary cost of doing business. 

I support legislation to strengthen OSHA’s authority in this regard. The agency’s ‘‘egregious penalty’’ policy allows OSHA to penalize the very worst employers with meaningful fines that can run 

as high as millions of dollars, but the policy is perpetually challenged by employers. The policy should be codified to end these 

challenges. And the OSH Act must be amended to strengthen 

criminal penalties—to enable the Department of Justice to prosecute a felony when an employer willfully causes death or serious 

bodily injury to a worker. Some of these changes are included in 

S. 1244, the Protecting America’s Workers Act, a bill now pending 

before this committee which I strongly support. 

I also support legislation to extend the coverage of the OSH Act 

to the estimated 8.6 million State and local government employees 

who presently lack any OSHA protection. These hard-working public servants deserve protection from the hazards they face every 

day in serving their communities. Notably, the proposed Protecting 

America’s Workers Act, which I have co-sponsored, would effectuate this change. 

The major features for a policy to improve workplace health and 

safety are clear. In fact, many of these changes do not require 

major legislation, but do require agency leadership and focus. The 

report issued today shows that this Administration is not taking its 

leadership responsibilities seriously. 

Thank you. 

58 

TEXTILE RENTAL SERVICES ASSOCIATION OF AMERICA (TRSA), 

MAY 12, 2008. 

Hon. EDWARD KENNEDY, Chairman, 

Committee on Health, Education, Labor, and Pensions, 

U.S. Senate, 

Washington, DC 20510. 

DEAR MR. CHAIRMAN: On behalf of the Textile Rental Services Association of 

America (TRSA), I ask that this letter be included in the record for the April 29 

Senate Committee on Health, Education, Labor, and Pensions (HELP Committee) 

hearing titled, ‘‘When a Worker Is Killed: Do OSHA Penalties Enhance Workplace 

Safety? ’’ 

Founded in 1912, TRSA is the world’s largest textile service industry association, 

representing more than 1,000 industrial laundry facilities in 24 countries. The membership of TRSA represents a cross-section of the industry, including some of the 

world’s largest textile service companies, along with numerous mid-size and oneplant operations. Our membership includes companies currently doing business in 

commercial laundering and rental services to commercial, industrial and institutional accounts, as well as firms selling services, equipment and supplies to commercial launderers and linen rental companies. 

Promoting safety in our members’ facilities has always been one of the core functions of TRSA. For example, safe practices have been a key component of the industry’s Production Manufacturing Institute (PMI), which helps to train our maintenance and plant supervisory personnel. (TRSA jointly sponsors PMI with the Uniform Textile Services Association.) Currently, TRSA is developing a program that 

will help our membership to improve their safety records even more. 

Thus, TRSA strongly supports the goal of a safer workplace. We have concerns, 

however, that increasing the use and severity of criminal penalties may be counterproductive. TRSA therefore urges the HELP Committee to be cautious and to contemplate carefully all of the issues and implications involved if it chooses to move 

forward on proposals such as S. 1244, the Protecting America’s Workers Act. For 

this reason, TRSA urges you to ask for a review by the Committee on the Judiciary 

prior to any floor proceedings. 

Most importantly, the HELP Committee needs to ensure that criminal penalties 

continue to rely on objective criteria. An extension of criminal penalties to decisions 

made in the course of everyday business operations and with no real intent to cause 

harm could wreak havoc. During an investigation following a workplace accident, 

for example, managers and workers with some knowledge about what happened 

may be advised by attorneys not to cooperate with OSHA representatives or other 

accident investigators. In addition, civil litigation may be delayed until criminal 

charges are finalized as civil trial judges would be justifiably reluctant to force potential witnesses to waive their rights under the Constitution’s fifth amendment. 

If the committee chooses to proceed with increasing the application and severity 

of criminal penalties under the Occupational Safety and Health (OSH) Act, TRSA 

encourages you and your colleagues to look at the Tire Recall, Enhancement, Accountability and Documentation Act (TREAD Act, P.L. 106–414) and Sec. 406 of the 

Coast Guard and Maritime Transportation Act of 2004 (P.L. 108–617). Both laws 

established new and enhanced criminal penalties related to product safety, but Congress granted discretion to the respective department secretaries in their application 

in order to ensure that investigators were not unnecessarily impeded in uncovering 

the cause of an accident because of due process rules and protections. 

Safety is a paramount concern for TRSA and its member companies. For that reason, we would not like to see congressional action that could hamper investigations 

and safety improvement in the rare instances of an accident or violation. Should the 

HELP Committee decide to move forward on increasing criminal penalties for violations of the OSH Act, however, TRSA would look forward to working with you and 

other committee members to minimize adverse consequences that could result. 

Thank you for your consideration of these views. Please let me know if you have 

any questions or would like additional information. I can be reached at lfineran@ 

trsa.org or (703) 519–0029. 

Sincerely, 

LAWRENCE A. FINERAN, 

Director, Government Affairs, TRSA. 

59 

[Whereupon, at 11:32 a.m., the hearing was adjourned.] 

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