Corporations on hook for employee deaths - East Valley Tribune: East Valley Local News

Corporations on hook for employee deaths

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Posted: Saturday, April 17, 2010 3:25 pm | Updated: 3:45 am, Sat Oct 8, 2011.

Corporations can be convicted in Arizona of criminal offenses related to the death of workers, the state Court of Appeals has ruled.

The judges rejected the arguments of attorneys for Far West Water & Sewer Inc. that the criminal laws of the state allow only “persons” to be convicted of crimes like manslaughter, aggravated assault or endangerment. They pointed out that the Legislature, in defining “persons,” specifically included not only corporations but even partnerships and governments.

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“Not only did the Legislature include corporations in the definition of person, the Legislature described corporations, as enterprises, can commit criminal offenses through the acts or omissions of their directors, high managerial agents and/or agents,” wrote Judge Sheldon Weisberg for the unanimous court.

The appellate court also rejected the company’s contention that federal workplace safety laws preempt it from being prosecuted criminally. And they also brushed aside claims that the only legal action that can take place against the company in state courts is for violating Arizona’s own worker safety statutes.

At the heart of the case is a 2001 incident at a sewage collection and treatment plant in Yuma County owned and operated by Far West.

A Far West employee and an employee of a subcontractor died in an underground storage tank after they were overcome by hydrogen sulfide gas. Another Far West employee was severely injured during the rescue attempt.

Far West was indicted on two counts of manslaughter, various counts of aggravated assault and endangerment and one count of violating a safety standard. A jury eventually convicted the company of one count of negligent homicide, one count of aggravated assault, two counts of endangerment and the safety charge.

The judge suspended sentence, placing the company on probation and imposing fines and penalties of $1.77 million.

Weisberg said there is no question but that lawmakers never intended to exempt corporations from criminal liability.

He noted that state laws spell out various penalties for felonies, with an entire separate set for “enterprises” which, by definition, cannot be sent to prison.

On the issue of preemption, Weisberg noted Congress enacted the Occupational Safety and Health Act in 1970. The purpose of that law is “to assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources.”

That law also allows states to adopt their own versions of the federal act that are in substantial compliance. Arizona followed suit.

Attorneys for Far West said that prosecuting the company under criminal laws illegally expands an employer’s liability in violation of provisions of both the state and federal worker safety laws.

Weisberg acknowledged no Arizona court has ever looked at this issue. But the appellate judges were persuaded by rulings from other states that there is no preemption.

Similarly, the court rejected the company’s contention that criminal charges are precluded by a separate section of the state Labor Code. That law makes it a Class 6 felony for any employer to fail to maintain a safe workplace.

But Weisberg said there is nothing in worker safety laws which makes them the only options for punishing a company that causes the death or serious harm of an employee.

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