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April 01, 2018

Am I Going to Jail? Criminal Liability for Workplace Deaths

Marti J. McCaleb

In Washington State, criminal prosecutors recently charged the owner of a construction company with negligent homicide after a worker died in a trench collapse. While Washington's industrial health and safety regulations do allow for state safety inspectors to recommend criminal charges in addition to civil penalties in the case of work-related employee deaths, it's almost never used. In fact, this case, State of Washington v. Phillip Scott Numrich, King Co. Superior Court # 18-1-00255-5, marks the first time in state history that a Washington employer has faced felony charges for a workplace fatality. These actions by the prosecutor's office, in cooperation with the Washington Department of Labor & Industries, make a strong statement about the responsibility of contractors to keep workers safe on the job and serve as a harsh reminder of the possible consequences of failing to do so.

What Exactly Happened?

The worker was killed in a trench collapse on a sewer replacement project at a residential site. The trench where the worker died was reported to be seven-feet deep and just under two-feet wide. It was shored only on the vertical sides and the shoring did not reach all the way up the trench depth. The trenched area also lacked a ladder or other means of egress. The sewer replacement contractor dug the trench approximately ten days before the accident, then work was stopped due to rainy weather. The trench remained open to the elements during this time. Work resumed once the rains subsided; however, no soil testing or evaluation was done to consider the possible risk of collapse of the now saturated soils. On the day of the accident, and shortly before the trench collapsed, the employee was seen working with a vibrating hand saw inside the trench. The company's owner was actively working as part of the three-man crew. He was the only "competent person" on site, which legally speaking means that he was the only person recognized by the Department of Labor & Industries to have the training and knowledge to identify safety hazards and the authority to remedy them. However, at the time of the collapse, he had left the site to go buy lunch for the crew.

Labor & Industries cited the company for a "willful" violation of safety regulations for not ensuring that trenches and excavations four-feet deep or more had a protective system in place to prevent the dirt sides from caving in. A willful violation means that L&I found evidence of "plain indifference" or "intentional disregard" of a specific hazard or safety rule. It also cited the contractor for five serious and one general violation of state safety regulations, and was fined $51,500. Through the appeal process, the fine was reduced to $25,750.

What does the law say?

Under Washington law, there are two paths to criminal liability for workplace deaths, although as mentioned above, they are almost never used. Under Washington's workplace safety laws, an employer may be guilty of a gross misdemeanor for any willful or knowing violation of a safety standard that causes the death of an employee. This offense carries a potential fine of up to $100,000.00 and/or up to six months in prison. The last known case arising under this law was in 2014, when a landscaping contractor faced criminal charges relating to the death of a 19-year-old employee in a bark-blower truck accident. An L&I spokesman described the decision to recommend that case for criminal charges because the Department "felt this case showed a deliberate disregard for safety of employees . . . It was a situation where the company knew what it was doing was incorrect and did it anyway."

But Numrich was not charged under the L&I statute. Instead, prosecutors argue that Numrich personally was criminally negligent and that his negligence directly caused his worker's death. Specifically, they allege that Numrich was unaware of the substantial risk of death or serious harm relating to working in an unshored trench the failure to provide appropriate trench safety apparatus, and that this was a gross deviation from the standard of care that a reasonable contractor would exercise in the same circumstances. Alternatively, the prosecutor argues that Numrich actually knew of the danger and disregarded it.

The Department of Labor & Industries is required to make any recommendation for criminal prosecution arising out of a worksite fatality inspection. Similar to the rationale in the 2016 bark-blower case, L&I justified its recommendation here, stating, "There are times when a monetary penalty isn't enough. . . . [The contractor] knew what the safety risks and requirements were, and ignored them. The felony charges show that employers can be held criminally accountable when the tragedy of a preventable workplace death or injury occurs." Second degree manslaughter is punishable by up to ten years in prison and/or a $20,000 fine.

Is This a Coming Trend?

When workplace deaths occur, employers are already subject to significant consequences from both state and federal safety regulators, but historically those consequences come in the form of increased business costs and monitoring--fines, citations, increased insurance and bonding requirements, more targeted inspection by state and local safety authorities. This case serves as a reminder, however, that under federal law and many state laws, when an employee's death is determined to be directly caused by a "willful" violation of a safety regulation, criminal penalties may be assessed against the employer.  

Since the Occupational Safety and Health Act was adopted in 1970, only about 100 workplace fatalities have been criminally prosecuted. Criminal exposure under the OSH Act can include imprisonment of up to six months in jail or a court-imposed fine of up to $500,000 (for a corporation - $250,000 for an individual), or both. State laws and penalties vary significantly. There was an agreement under the Obama administration to allow the Department of Justice to work with the Department of Labor to prosecute certain safety violations; however, any substantial action on this front appears to have stalled in the wake of the 2016 election. Similarly, legislation introduced in the 2015 congressional session that would have increased the possible criminal penalties under the OSH Act has not found traction.

While the specter of criminal prosecution is certainly real, the more immediate reality is in the aftermath of a highly publicized safety incident, OSHA investigators and their state agency counterparts do tend to look more closely for other instances of similar circumstances and violations. This has been true with crane safety enforcement in the wake of several highly publicized crane accident deaths across the country, as well as confined space injuries since the 2015 change in OSHA standards, and countless other areas of safety practice as well. In Washington State at least, multiple sources from the industry, as well as state safety regulators, and criminal justice experts, believe that the Numrich case will serve as a test case for local prosecutors to see if they can get traction to provide increased enforcement or heightened consequences for willful safety violations. Construction company owners and safety officers certainly need to be aware of the potential risk, and in the event of an employee death, be prepared to consult with an attorney experienced in defending against safety investigations, as well as competent criminal defense counsel.

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Marti J. McCaleb

Schwabe, Williamson & Wyatt, PC, Seattle, WA, Division 1 (Litigation & Dispute Resolution) and Division 5 (General Contractors)