Prosecuting CEOs for Dead Workers

Former Massey Energy CEO Don Blankenship is facing three felony counts and thirty years in prison for his direct role in the deaths of 29 coal miners in 2010 at the Upper Big Branch mine he owned. I believe this is the first time a CEO has faced felony charges for workplace safety issues. Cole Stangler explored this question and I was happy to talk to him about it. Why Blankenship? Because he was unusually involved in hour-to-hour operations inside mines, explicitly interfering in mine safety inspections and intentionally creating unsafe conditions, creating an actual paper trail that corporate heads usually delegate to underlings:

“Having hourly reports of what’s happening in individual mines sent to him, that’s a paper trail,” says Erik Loomis, a labor history professor at the University of Rhode Island. “And CEOs are supposed to be shielded from paper trails. Even when scandals do come out, CEOs are shielded from that — it’s middle-management, it’s somebody down below.”

Loomis says many major corporations have adapted to new regulations by distancing high-ranking executives from operations on the shop floor — or the mines and rigs. In part, the growing use of subcontractors reflects that concern by installing another degree of separation between decision-making executives and their day-to-day business.

“These modern shielding techniques are happening, in part, as the result of the rise of a regulatory state in the 1960s and 1970s, whether we’re talking about environmental stuff or workplace safety issues,” Loomis says. “In all of these cases, it’s a situation where the companies are trying to effectively respond to a growing demand for accountability by finding new ways to separate themselves from the production process.”

Certainly most dead workers’ families will not receive justice in this fashion, simply becuase of the paper trail. And the use of subcontracting, temp work, franchising, outsourcing, etc., all operates to deflect legal liability off of the corporation and onto workers. But being more aggressive in going after CEOs and other members of upper corporate management is really important and is the one thing that would actually do a lot to protect workers since the relatively small fines OSHA or MSHA can give are chump change to large companies. Personal responsibility is the ticket. Stangler talks about how this is a good strategy and one that is being used more often:

Rena Steinzor, the law professor from Maryland, believes there’s a “wind of change” encouraging the criminal prosecution of corporate executives.

Steinzor points to the recent conviction of Stewart Parnell, the former peanut executive sentenced to 28 years in prison last month. Parnell was convicted for his role in a nationwide salmonella outbreak in 2008 and 2009 that killed nine people.

She also references a recent law in New York State that made so-called wage theft a criminal offense. That enabled arrests like the one this summer, when the owner of nine Papa John’s franchises in the Bronx pled guilty to not paying employees minimum wage or overtime.

Meanwhile, the revelations that Volkswagen systematically cheated on emissions standard tests have sparked calls to jail high-level executives. And earlier this month, Democratic Sens. Richard Blumenthal (D-Connecticut) and Bob Casey (D-Pennsylvania) reintroduced the so-called “Hide No Harm” bill that would make it a crime for a corporate official to “knowingly conceal information about a corporate action or product that poses the danger of death or serious physical injury to consumers or workers.”

Steinzor says the anger over the failure to prosecute high-level Wall Street executives has likely played a role in fueling the recent wave of corporate accountability initiatives.

For worker health and safety advocates like Peter Dooley, there’s no question what they’d like to see.

“If we had more criminal prosecutions, that would be an incredible incentive for businesses to be making better decisions about adopting worker health and safety programs and preventing fatalities,” says Dooley. “Absolutely.”

There are answers to corporate malfeasance. They revolve using sticks. Carrots don’t work with corporations. Self-regulation is a disaster. We saw that with Volkswagen. You have assume corporations are cheating the system and punish them when you catch them. The more CEOs that serve time, the better it will be for workers around the nation. And maybe around the world, given the culpability of Walmart, Gap, Target, and other clothing companies in creating the conditions that led to over 1100 dead workers at the Rana Plaza collapse in Bangladesh.