legislation: Top Brass Lose Shine Over Safety Issues

The Los Angeles County Superior Court will be hosting a closely-watched trial once again this summer. Although the case will have none of the hullabaloo that surrounded the O.J. Simpson trial, the stakes are much more significant.

Jorge Torres died on the job in 1994. While standing atop a 60-ton mountain of salt, he was swallowed up like quicksand and buried alive at the bottom of a bin. His employer, Chicago-based Morton International Inc., and two supervisors face trial for manslaughter in his death.

A growing number of companies, executives and managers are facing charges that, on the surface, look like garden-variety street crimes. Pro-secutors in more than a dozen states have turned on-the-job injuries into criminal conduct - from assault and battery to reckless homicide.

As a result, employers who ignore warnings to improve workplace safety can face long jail terms or, for the businesses themselves, punishing fines. Since 1990, state and local prosecutors have sent nearly a dozen employers to jail. Indeed, one plant manager received a 20-year sentence.

The charges against Morton include allegations that it criminally failed to provide a suitable platform for its workers to stand on. The company, which denies the charges, is trying to have the case dismissed.

Such prosecutions often "make criminal what is nothing more than an accident," says Scott Dunham, an attorney for Morton. He accuses the district attorney of undercutting the purpose of the regular criminal laws by attempting to apply them to the workplace where, as Dunham sees it, federal job-safety laws provide sufficient protection for workers.

For their part, prosecutors have little faith that the U.S. Occupational Safety and Health Administration (OSHA), Washington, D.C., will ag-gressively pursue workplace injuries. First, the Reagan and Bush administrations cut OSHA's inspection staff by one-third, and Congress has shown scant interest in beefing up the program. Second, even when OSHA issues citations for safety violations, the penalty is usually a fine. Employers have been jailed in only three instances for federal safety violations, and the longest jail term was six months.

"For states not to investigate would be criminal," says Massachusetts Attorney General Scott Harshbarger. On average, 17 workers die on the job each day in the United States. For many employers, fines for workplace violations are part of "the cost of doing business," says Harshbarger. Federal safety officials cheer the get-tough approach by state and local prosecutors. "We've got to find help where we can get it," says Labor De-partment acting solicitor Dawitt Mc-Ateer.

Of course, some prosecutions are stymied and defendants go free. Often, it is easier to prove that an employer is liable for a civil infraction than for a criminal offense, says a spokesperson for the National District Attorneys Association.

Nevertheless, the prospect of going to jail can be pretty scary for company owners and managers. In March, prosecutors in Massachusetts charged the owner of a recycling facility with manslaughter after two em-ployee deaths: One got trapped in a metal shredder and the other was run over by a loading truck.

The plant owner, Thomas E. Bow-ley, ignored warnings to install a protective guard on the shredder and to fix the truck's worn brakes, according to papers filed in Middlesex County Superior Court.

Holding employers criminally ac-countable for employee deaths isn't a recent phenomenon. In 1985, the State Attorney's Office in Cook Coun-ty, Ill., prosecuted three executives of a Chicago silver recovery company for murder after a Polish immigrant wor-ker died from cyanide poisoning. A judge convicted the three individuals of murder and the company of man-slaughter.

An appeals court subsequently overturned the murder convictions. Similar cases elsewhere met the same fate. The appellate courts said that prosecuting workplace safety violations was a job for federal officials, not individual states and localities.

By the late 1980s, however, the highest courts in Illinois and Mich-igan ruled that those states could prosecute companies and officers lawfully under general criminal codes.

When, in 1989, the U.S. Supreme Court declined to review the Illinois ruling, Cook County prosecutors re-filed murder charges against the three silver company executives. The defendants decided to plea bargain to involuntary manslaughter rather than go to trial.

Most state manslaughter and negligent homicide laws do not require prosecutors to prove that employers intended to kill their workers. Con-victions are possible even if the evidence shows that reckless indifference or negligence caused the deaths.

Maine and California passed new laws that criminalize employer conduct that endangers employees. The California law, which was passed in 1989, now is under attack by business groups that seek its repeal. They call it the "Be-a-Manager/Go-to-Jail" law.