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Mr. Elias wanted his workers to clean out a 25,000-gallon tank that contained cyanide waste. He refused to test the air
or the waste inside the tank. He ignored the pleas of his workers for safety equipment. When the workers complained of
sore throats and difficulty breathing, Mr. Elias told them to finish the job or find work somewhere else.
Mr. Dominguez, a 20-year-old high school graduate, wanted to keep his job. Wearing just jeans and a T-shirt, he used a
ladder to descend into the tank. Two hours later, covered in sludge and barely breathing, he was removed from the tank,
a victim of cyanide poisoning at the hands of a ruthless employer who would blame his "stupid and lazy" employees for
the incident.
Mr. Dominguez suffered severe and permanent brain damage. He now has the rigid body movement and stammering speech found
in patients with Parkinson's disease.
The Justice Department opened a criminal investigation of Evergreen Resources. I was one of the lead prosecutors on the
case. We quickly discovered that we had a major problem.
Mr. Elias did not commit a crime under the Occupational Safety and Health Act, which is the primary federal worker-safety
law in the United States. Why not? Because Mr. Dominguez did not die.
My colleagues and I were shocked to learn that an employer who breaks the nation's worker-safety laws can be charged
with a crime only if a worker dies. Even then, the crime is a lowly Class B misdemeanor, with a maximum sentence of six
months in prison. (About 6,000 workers are killed on the job each year, many in cases where the deaths could have been
prevented if their employers followed the law.) Employers who maim their workers face, at worst, a maximum civil penalty
of $70,000 for each violation.
We ended up prosecuting Mr. Elias for environmental crimes, and he was sentenced to 17 years in prison. I later became
chief of the Justice Department's environmental crimes section, and we started an initiative - based on this case and
others like it - to seek justice when workers were seriously injured or killed during environmental crimes. We prosecuted
some of the largest companies in America. But in cases where no environmental crimes were committed, we often could not
prosecute.
Employers rarely face criminal prosecution under the worker-safety laws. In the 38 years since Congress enacted the
Occupational Safety and Health Act, only 68 criminal cases have been prosecuted, or less than two per year, with
defendants serving a total of just 42 months in jail. During that same time, approximately 341,000 people have died at
work, according to data compiled from the National Safety Council and the Bureau of Labor Statistics by the A.F.L.-C.I.O.
It is long past time for Congress to change the law. First, Congress should amend the Occupational Safety and Health Act
to make it a crime for an employer to commit violations that cause serious injury to workers or that knowingly place
workers at risk of death or serious injury. Whether good fortune intervenes and prevents harm to workers should not
determine whether an employer commits a crime.
Congress should make it a felony to commit a criminal violation of the worker-safety laws, and the penalties for
lawbreakers should be stiffened. The maximum sentence ought to be measured in years, not months.
Congress also should change the worker-safety laws so that ignorance of the law is no longer a defense. Employers have a
duty to know their responsibilities under the Occupational Safety and Health Act.
Finally, Congress should make clear who can be prosecuted. Some courts have held that prosecution is limited to companies
and their owners. Supervisors who order workers to break the law, as well as responsible corporate officers who fail to
stop violations that they know are occurring, should also be held criminally responsible, just as they are under most
other federal laws.
Most companies care about protecting their workers. But without a serious threat of criminal enforcement, more workers
will be put at risk by companies that put profits before safety.
David M. Uhlmann is a law professor at the University of Michigan.
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On a hot August morning in 1996, Scott Dominguez reported to work at Evergreen Resources, a small fertilizer
manufacturing plant in his hometown, Soda Springs, Idaho. The workday began like any other, with gruff commands barked
out by the owner of the company, Allan Elias, who was a Wharton graduate, a lawyer and one of the most notorious
violators of environmental and worker-safety laws in the state.