Federal Enforcement Still Weak, NPR's Berkes Says

Having investigated the Upper Big Branch mine disaster, grain bin deaths, and the erosion of workers' compensation protections, he says the agencies and prosecutors don’t enforce strongly enough, and workers suffer.

SEATTLE – NPR's Howard Berkes delivered the 17th Annual Upton Sinclair Memorial Lecture at the AIHce EXP conference on June 6, focusing on coal miners, grain industry workers, and workers' compensation protections – or the lack of them. Berkes, NPR's correspondent for investigations and its chief reporter on the April 5, 2010, Upper Big Branch mine disaster in West Virginia, said federal enforcement was then and still remains too weak and hamstrung by the fact that even willful actions that result in a worker's death on the job cannot be prosecuted as felony crimes.

Berkes was not present to deliver the lecture in person, appearing via a video link because he'd given a speech elsewhere while accepting an award the prior day. But he spoke to an appreciative audience that filled a meeting room inside the Washington State Convention Center here.

He discussed the months-long investigation of the mine explosion and the role of journalists in uncovering the causes of such calamities and the failures by various parties behind them. NPR reported that MSHA had not collected millions of dollars in fines assessed for violations by some mine companies, and the coverage showed that miners were at greater risk working in mines that racked up unpaid fines, he said. "What point is there to a regulatory system if it's not enforced?" he said. "They [MSHA] were quite defensive when we pointed it out."

He said a U.S. Department of Labor OIG audit of the unpaid fines will be issued soon.

It was the mine disaster that got Berkes interested in investigating workplace safety, he said. He investigated grain bin deaths, including the 26 that occurred in 2010, and found that OSHA fines also weren't deterring violations as intended. "Five hundred people have drowned in grain in the last 40 years," he said. "Our investigation found that in the worst cases . . . the penalties were cut 40 to 90 percent most of the time," and that most OSHA fines for grain bin violations were reduced.

"The [U.S.] Justice Department has an entire division devoted to environmental crimes. There is no division for workplace safety," he said.

He also investigated workers' compensation protections in Oklahoma and Texas when those states allowed employers to opt out of maintaining coverage if they chose to do so. (Texas still allows this, while Oklahoma's law allowing it has been found unconstitutional by the state's highest court, he said.) The investigation found that the disability protections those states provided to workers when their company did opt out were inferior to the comp benefits that had existed before, Berkes said.

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