Labor Committees Discuss Fatal Industrial Accident

Rep. Karl Rhoads and Senator Dwight Takamine, respective Labor Committee chairs, lead the discussion with the Department of Labor.

The House and Senate Labor Committees today heard testimony from the Department of Labor and the Hawaii Laborers' Union on the handling of an industrial accident which occurred on May 16, 2009. The victim was crushed by a collapsed tower and died.

After the department's investigation, the employer was fined $750 prompting an outcry from the family of the deceased and the laborers' union. Prior to the briefing, the committees asked the deparment to respond to the following question:

Q: Please describe the criteria used and justification for the amount of the fines in this case.

The department responded in part:

A: ...Section 396-10(b), Hawaii Revised Statutues, provides the Director with the statutory authority to proposed civil penalties for violations of Chapter 396. Any employer who has received a citation for an alleged violation of the Law which is determined to be of a serious nature shall be assessed a civil penalty of up to $7,000 for each violation.

Section 396-10(j), HRS, provides that penalties shall be assessed on the basis of four factors: 1)The gravity of the violation; 2)The size of the business; 3) The good faith of the employer, and 4) The employer's history of previous violations.

The gravity of the violation is the primary consideration in determining penalty amounts...

In this case, the gravity of the violation was determined to be "high severity", which is "death from injury or illness, injuries involving permanent disability, or chronic, irreversible illnesses."

...In this case, the probability of the violation was determined to be "lesser probability." This determination was based on the following facts: the employer had work rules, provided safety training, had emergency evacuation procedures that were known to their workers, and the decedent was able to escape the area but for unknown reasons went back into the tower area.

Pursuant to the FOM (field operations manual) a serious violation with a high severity and lesser probability has a gravity based penalty (GBP) of $2,500. The GBP may be reduced by as much as 95 percent depending upon the employer's "good faith", "size business," and "history of previous violations."

In this case, pursuant to the FOM, no discount was made based on "good faith" since there was a fatality. A mandatory sixty percent discount, pursuant to the FOM, was made based on "size of business" since the employer had between 1 and 25 employees. also, a mandatory ten percent discount based on "history of previous violations" was made pursuant to the FOM, since the employer had no serious violations from HIOSH during the last 36 months preceding the date of the accident.

Therefore, a total of seventy percent discount was applied to the GBP of $2,500, resulting in the proposed adjusted penalty amount of $750. These are the penalty amounts and adjustment factors contained int he HIOSH FOM and the federal OSHA FOM.

Note: Rep. Rhoads continued to be troubled by the fact that the worker went back into the tower area after all of the construction crew heard a "pop" sound and were instructed to evacuate. The crew was bi-lingual (English, Spanish) and the consensus was that everyone understood the instructions. There was also concern that the amount of the penalty, $750, was not enough to incent employers to create a safer work place in the future.