Idaho has a 2.9 percent unemployment rate — April was the 16th consecutive month below 3 percent. But as employment has risen, so has the number of workplace fatalities.
In 2017, there were 37 workplace fatalities in Idaho. That number tied for the highest in the last decade. About half of the deaths in 2017 were transportation related. The next highest cause, at 27 percent, was contact with objects and equipment.
Almost all of those fatalities were the result of accidents — there were four cases of intentional injury by another person. But some of the accidents could have been avoided.
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has, to date, issued six citations for various safety violations resulting in workplace fatalities in 2017.
In most workplace death or serious injury cases, the employer is slapped with an OSHA fine, and that’s the end of it, unless the victim’s family files a civil suit.
But in some cases, an employer can face criminal charges.
A database, compiled by a workplace safety advocacy group, Center for Progressive Reform, shows 52 homicide cases nationwide since 1972 against employers for negligence leading to workplace deaths.
States such as California, Pennsylvania, Georgia, Maine, New York and Washington have prosecuted employers in homicide cases, following an employee’s death. But such prosecutions have not been pursued in Idaho.
Edward Stern, a retired OSHA policy analyst, who worked for the Department of Labor for about four decades, hopes to see more states pursue criminal cases against negligent employers.
“Some of these cases are really outrageous, and there’s strong evidence that the employers or supervisors knew what they were supposed to be doing, and they didn’t do anything,” Stern said. “That makes a good case for negligent homicide.”
Stern said if there were four or five prosecutions in the U.S. per year, employers would take notice.
“If a few people went to jail, it would send a message,” Stern said. “There really shouldn’t be any fatalities in a trench because anybody who’s doing work in a trench ought to know how to do it safely.”
In 2012, a 38-year-old California construction worker, Raul Zapata Mercado, died on the job when a 12-foot excavation cave collapsed and buried him alive.
The cave collapsed after several days of rain led a building inspector to issue a no-work order to the construction contractor. The contractor ignored the order, work continued and Mercado was crushed to death.
Two years later, a grand jury indicted the construction company, its owner and project manager on charges of involuntary manslaughter.
In 2016, a 36-year-old landscaping contract worker, Harold Felton, died in Seattle when a trench collapsed while he was digging a sewer line.
Last year, the King County, Wash., prosecuting attorney filed second-degree manslaughter charges against Felton’s employer, Phillip Numrich, owner of Alki Construction.
According to the Washington State Department of Labor and Industries, which investigated the accident, the employer “willfully” disregarded safety rules.
“There are times when a monetary penalty isn’t enough,” said Washington State Department of Labor and Industries Director Joel Sacks in a news release. “This company 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.”
It was the first time a Washington employer faced felony charges in connection with a workplace fatality.
Idaho has an involuntary manslaughter law, defined as a lawful act “which might produce death, in an unlawful manner, or without due caution and circumspection...”
Idaho’s county prosecutors — sometimes called district attorneys in other states — have the power to take up such cases, if they so choose.
“My concern is that too many of the district attorneys look at these events, these fatalities, as random accidents and they’re not thinking of them as the result of criminal negligence,” Stern said.
According to Daniel Clark, Bonneville County’s prosecuting attorney, workplace deaths historically are handled in private, civil suits, brought by the victim’s family against the employer.
Theoretically, a county prosecutor could bring a criminal charge against an employer for the death of an employee, if the facts — collected in a county sheriff investigation — proved willful negligence (mens rea), and if the public supported a criminal charge, Clark said.
“When the state levels a criminal charge we’re speaking on behalf of the community,” he said. “It becomes criminal at the time when the public, in general, wants to determine: that is a public offense, worthy of a criminal charge, rather than a private offense.”
Brandon Leatham, president of the East Idaho Central Labor Council and the representative for the local sheet metal worker’s union, said he would support a criminal case when an employer has a history of habitual safety violations.
“I strongly feel that in certain circumstances someone should be held liable,” Leatham said. “There’s a lot of employers out there that have had several warnings. Those ones, by all means, should be prosecuted or held liable. Everyone who goes to work should have the right to come home the way they left “
Fatal accidents, which increase as work opportunities increase, are a combination of several things, Leatham said, such as inexperience and lack of training.
“Gone are the days of having a daylong orientation,” he said. “Now it’s ‘getting them to work as soon as possible’ mentality.”
A preventable accident, which occurred due to cost-cutting measures or another instance of willful negligence, could be sufficient cause for a criminal case, Clark said.
Pursuing a workplace fatality investigation is up to a county sheriff, and ultimately, the public, which can pressure state officers to investigate a crime.
“From my perspective, I’m open to these scenarios,” Clark said. “It’s just not been the norm historically, here or anywhere else.”