Employers may face higher penalties

Nevada lawmakers and federal lawmakers are considering whether to enhance workplace safety by raising the penalties for employers who make safety a low priority.

If fines are high, then safety awareness will also be high, according to the logic behind some changes Congress is considering. Federal OSHA penalties have not gone up since 1990, despite increases in the cost of living.

"For many employers, investing in job safety happens only when they have adequate incentives to comply" with safety laws, said David Michaels, head of the U.S. Occupational Safety and Health Administration.

He made the statement in April, when federal OSHA launched a program to target employers who have an ongoing pattern of safety violations.

Penalty increases for workplace hazards can't enter Nevada law before the next legislative session, in 2011.

In the meantime, Congress is looking to increase fines for safety violations in general industry -- which includes event rigging -- by recent additions to an already pending bill to improve mining safety.

If Congress passes it, the average penalty for a serious violation would increase from about $1,000 to an average $3,500, according to federal OSHA officials.

The maximum for a serious violation would rise from $7,000 to $12,000. In a serious violation, the employer knew, or should have known, of a serious hazard.

For a willful violation -- which means the employer was indifferent to legal requirements for employee safety -- the maximum would jump from the present $70,000 to $250,000, according to the bill.

Nevada is one of 26 states with its own "state plan" OSHA, which must be at least as tough as federal OSHA.

That's the theory. In practice, according to federal data, state OSHA inspectors find fewer serious violations in their workplace inspections (43 percent of all violations found) compared to federal inspectors (77 percent).

But assessing fines is not the only way to induce workplace safety. Restructuring workers' compensation programs to allow more lawsuits against employers could be another way, according to some lawyers.

Nevada, like most states, bars people from suing an employer in relation to work-related death or injury. A worker can recover medical and rehabilitation expenses through the state's workers' compensation program.

Under the system, an injured worker does not have to defend himself against charges of negligence, nor does the employer. In the case of a worker death, the system pays out minimally if the deceased had no dependents.

But the compensation system is a "limited remedy" in the eyes of Emily Spieler, dean of the Northeastern University School of Law, and a former commissioner of West Virginia's Workers' Compensation Fund.

"Workers don't have to prove any negligence," she explained by telephone. "But it protects the employers in situations where there's perhaps more culpability. ... Instead of a benefit program for workers, you can look at it (workers' compensation) as an insurance program for the employers."

In recent years, Spieler said, a handful of states -- often after a horrendous workplace accident -- have loosened their laws to allow a party to sue an employer if "the employer knew of the existence of an extremely dangerous condition, that an injury was likely to occur, and the injury did occur."

Texas attorney Rick Garcia used stronger language to characterize the no-sue nature of Nevada's workers' compensation law.

"This is tantamount to a 'free pass' for a negligent or grossly negligent employer," he wrote to the Las Vegas Review-Journal by e-mail.

Garcia helped represent a widow in a high-profile wrongful death lawsuit involving a commercial laundry in Oklahoma.

Her husband died in 2007 after falling into an industrial dryer running at 300 degrees, at a plant owned by Cintas Corp., which supplies and launders work uniforms.

The widow, who settled in April for an undisclosed sum, alleged the company encouraged workers to meet production goals by fixing the jammed conveyor belts that carry wet laundry, without shutting off the dryers below.

In 2008 Cintas agreed to pay almost $3 million in federal OSHA penalties for safety violations at multiple plants.

Contact reporter Joan Whitely at jwhitely@reviewjournal.com or 702-383-0268.