Intentional disregard: remedies for the toxic workplace.

I. INTRODUCTION

The Oregon Court of Appeals recently sheltered an employer from tort liability after he knowingly subjected his employees to hazardous levels of toxic fumes.(1) The employee-plaintiff, Mr. Davis, worked as an automobile painter for a body shop.(2) He was regularly exposed to toxic fumes without proper ventilation or protection, and over time, he began to suffer headaches, respiratory problems, lightheadedness, and memory loss.(3) Mr. Davis and other employees repeatedly complained to their employer,(4) and Mr. Davis says he was repeatedly assured the problem would be fixed.(5) Safety inspectors also warned the employer about the dangerous conditions of employment at his shop.(6) Instead of following the inspectors' orders to fix the situation, the employer lied to inspectors and actively concealed safety violations from them on several occasions.(7)

The Court of Appeals found the employer refused to undertake adequate safety measures in the interest of saving money.(8) The court also found the employer knew that, if it did not provide safety protection, at least some employees were "certain to suffer severe injury."(9) However, the court did not believe such conduct met the "deliberate intention"(10) requirement necessary to allow Mr. Davis a remedy outside of the workers' compensation system.(11) Because the employer did not "wish to injure" Mr. Davis when it failed to provide adequate protection from the toxic fumes but instead only intended to save money, Mr. Davis could not pursue a civil remedy for his injuries.(12)

Mr. Davis eventually developed organic brain damage as a result of his employer's choice to cut costs rather than to protect employees' health.(13) The employer suffered no penalty for his action (other than perhaps a slight increase in his worker's compensation insurance premiums) nor was any deterrent established to prevent future misconduct.(14) Mr. Davis did not recover any damages, even though his brain damage easily could have been prevented, but only received the statutory amount that the state workers' compensation laws provided for his injury.(15)

Although the result in Mr. Davis's case may seem extreme, it is consistent with other jurisdictions' interpretations of the "deliberate intent" exception to the workers' compensation system.(16) Such interpretations illustrate the inadequacy of the current workers' compensation system in dealing with avoidable toxic exposures in the workplace.

Workers' compensation is the major scheme for compensating employee workplace injuries. Supplementing this system are several federal regulatory schemes designed to prevent accidents before they occur. The most inclusive of these is the Occupational Safety and Health Act (OSH Act),(17) the purpose of which is to "assure so far as possible [to] every working man and woman in the Nation safe and healthful working conditions."(18) Neither workers' compensation nor federal safety laws adequately protect today's worker from harmful, yet preventable, toxic exposures.

In particularly egregious cases, especially those affecting a number of workers, an employer may be held criminally liable.(19) Criminal sanctions are available under OSH Act(20) and under state criminal laws.(21) Such sanctions, however, are fairly rare.(22)

So far, attempts to protect workers have been ineffective in encouraging employers to provide a safe workplace and in deterring employers from compromising safety to save money.(23) Also, the system does not always adequately compensate workers for the results of toxic exposures when the workplace is not safe.(24) This is increasingly alarming in light of the numerous new toxic substances that are being introduced into our lives and are being used in our workplaces every year.(25) Toxic exposures occur frequently in the workplace, but these exposures and the illnesses that result from them are not well documented.(26) Toxic substances often appear first in the workplace. Their harmful effects, therefore, commonly are not discovered until the symptoms appear in workers.(27) The probability that workers may suffer more frequent or more extreme toxic exposures than the general public magnifies the injustice of not allowing workers the same remedy as the general public for affirmative harmful conduct.(28)

The workers' compensation system, the Occupational Safety and Health system, and the criminal system have not been adequately protecting workers from the kind of employer conduct that Davis illustrates. More shocking is the reality that problems with the various schemes tend to make it most profitable to act in the same manner as the employer in Davis; the message to employers seems to be "don't bother to buy safety equipment because there is little risk of suffering any consequences for not doing so." Not only are employees and their families damaged by such a system, but scrupulous employers who must compete with unprincipled employers are hurt as well.

This Comment examines the problem of employers allowing and effectuating toxic exposures in the workplace and the lack of adequate deterrence for such conduct. Part II looks at the workers' compensation system. Part III discusses the OSH Act. Part IV explores state criminal sanctions. Part V briefly examines tort liability. As a partial solution to some. of the problems noted in Parts II-V, Part VI urges a limited expansion of the situations in which employees can move outside the workers' compensation system and pursue civil damages. The legal system should allow employees to sue employers who 1) know their employees are exposed to dangerous toxic substances; 2) fail to provide adequate, mandatory health and safety protection; and 3) know harmful exposures will continue and employees will likely become sick. This limited expansion would lead to a more fair result for both employees and scrupulous employers.

II. WORKERS' COMPENSATION

A. Development of the Workers' Compensation Scheme

Prior to the enactment of workers' compensation laws, workers suffering from job-related injuries had difficulty paying medical bills and surviving without wages.(29) Compensation came, if at all, after months or years spent in litigation.(30) Often the worker did not have the capability or wherewithal to obtain legal representation.(31) Even when a worker did hire a lawyer and sued for compensation for her injuries, several legal doctrines stood in her way. Known as the "unholy trinity,"(32) the combination of contributory negligence,(33) assumption of risk,(34) and the fellow-servant rule(35) made it difficult for workers to win cases against their employers. Often the injured worker did not recover anything from her employer,(36) even though workplace injuries were frequently attributable to employer negligence or conditions at the job site.(37)

Hardships to workers under the common law system continued to increase as the country became more industrialized and the frequency of workplace injuries increased.(38) Employees were often injured at work and needed a quick and sure recovery for their injuries.(39) At the same time, as courts began ruling in favor of the increasing number of injured workers who came before them, employers wanted limited and predictable liability for workplace injuries.(40) Just after the end of the nineteenth century, states began creating commissions to investigate the extent of the problem and to develop proposed solutions.(41)

Early workers' compensation statutes that covered only certain hazardous employments were initially held unconstitutional by most state courts.(42) In 1917, the Supreme Court held for the first time that workers' compensation laws were indeed constitutional.(43) After this, states quickly began enacting their own versions. By 1920, the great majority of states had workers' compensation statutes, and by 1963, all fifty states had such statutes.(44)

Workers' compensation laws--most of which remain relatively unchanged today--are commonly thought of as a "bargain" between workers and employers.(45) Workers waive their right to sue employers at common law(46) in return for the assurance of sure and swift compensation for injuries that arise out of the course of their employment.(47) The laws provide workers with a percentage of their lost wages, medical expenses, and rehabilitative services.(48) In the case of permanent disability, workers are given a lump sum set by statute.(49) Employers agree to guarantee no-fault recovery for injuries that occur at work.(50) In return, they gain the security of limited liability(51) because compensation under the statute is generally the exclusive remedy for injured workers.(52) Under the workers' compensation system, most employers must obtain workers' compensation insurance,(53) which allows them to budget for worker injuries in a way that they could not have under the common law system due to the unknown amount of potential damage awards.(54)

B. Characteristics of the Workers' Compensation System

Workers' compensation statutes focus on the connection between the injury and employment rather than on fault.(55) Most statutes, however, include a "deliberate intent" or "intentional injury" exception.(56) This exception allows a worker who was injured by her employer's deliberate and intentional act to look to tort law in addition to workers' compensation for a remedy.(57) The exception exists because workers' compensation was not meant to shield employers from liability when they intentionally injure their employees. Some authors believe workers' compensation systems aim to compensate accidents at the workplace, and an intentional act is by its very nature not accidental.(58) Others theorize that when an employer intentionally injures his or her employee, the employer steps out of the employer-employee relationship and the workers' compensation laws no longer apply.(59) Still others note a job does not generally entail the risk that the employer will intentionally harm the worker.(60) In any case, the intentional tort exception is virtually universal throughout the states.(61)

However, the word "intentional" is not given the same meaning in workers' compensation statutes as it carries in common law.(62) Common law "intent" includes not only purposeful acts causing harm but also situations in which the actor knows with substantial certainty that harm will occur.(63) By contrast, the majority of states interpret "intent" in workers' compensation statutes to cover only an employer's purposeful intent to cause the harm that actually occurred.(64)

When an employee seeks civil damages, she must prove her employer "deliberately inten[ded]" to injure her.(65) This is nearly impossible. Many courts say it is not enough for the employer to consciously maintain a dangerous workplace and to continue to direct employees to work there.(66) It is not enough for the employer to violate safety codes, to cut corners instead of providing required safety protection to employees, and even to lie to safety and health inspectors.(67) It is not enough that the employer knows its employees will suffer serious injury or disease.(68) Currently, "deliberate intent" means the employer must actually set out to hurt the worker.(69) Its express purpose in disregarding safety measures must have been to injure its employees--an absurd thought.(70) This standard renders the "deliberate intent" exception meaningless and virtually locks its implied door to civil remedies. Not only is this standard a much higher standard than civil "intent," but it is, in some instances, even higher than the standard in criminal codes.(71)

One of the fundamental aspects of workers' compensation is that all employers must carry insurance to cover the casts of worker injuries. This requirement has had some unanticipated effects. As one author noted, "employers, facing only the risk of increased workers' compensation insurance premiums, can `cost out' decisions on safety issues in disregard of the potential human suffering."(72)

Through the experience rating system, workers' compensation insurance tries to incorporate economic incentives that encourage employers to provide a safer workplace.(73) The experience rating system links the size of insurance premiums to the employer's safety record.(74) Fewer accidents should mean lower insurance rates. However, many insurers set their premiums according to industry standard rather than according to each company's own claims experience.(75) When the price of insurance does not reflect a particular employer's claims experience, that employer will have little economic incentive to take safety precautions.(76) Instead, insurance has allowed employers to budget workplace injuries into their yearly expenses with little worry that they will be surprised by a large damage suit, regardless of what workplace hazards they have allowed.(77)

Since workers are entitled to only two-thirds of their lost wages,(78) the cost of their injury is apportioned between them and their employer's insurance company.(79) This allocation is not an effective incentive for encouraging employers to provide a safe workplace. When an employer pays the same amount for workers' compensation insurance whether or not its workers are getting sick and regardless of any workplace hazards, that employer has no financial reason to consider spending money on safety measures.

C. Times Have Changed, Has Workers' Compensation?

A 1972 congressional commission, which was formed to study the effectiveness of the modern workers' compensation system, found significant shortcomings in the system.(80) Following the commission's report, many changes were discussed and attempted.(81) However, although changes were made at the time, new shortcomings with the system have since become apparent.

The system is not working in part because it has not changed significantly since its inception nearly a century ago. The bargain that was struck in the early 1900s no longer applies today.(82) The nature of the workplace has changed significantly since workers' compensation statutes were first enacted. Many of the hazards in the workplace of the early 1900s. involved machinery and physical labor.(83) Consequently, workers' compensation statutes focused on traumatic accidents.(84) Today, workplace dangers include chemical hazards that injure workers through prolonged exposure, rather than by an identifiable "event"(85) This puts the power in the hands of the employer as to whether it will disclose these toxic hazards.(86) Although there are significant disclosure requirements for hazardous materials used at work, many employees do not read or understand those requirements.(87) On other occasions, although the employer may know of the hazardous substances, it does not disclose that information to the employee.(88) Also, a chemical may be used in the workplace before the long-term or synergistic effects of that chemical are known.(89)

Even when an employee knows that her working conditions are dangerous, the employer might not provide the necessary safety equipment,(90) and the employee might not be able to afford the equipment herself.(91) An employee then must choose either to work under hazardous conditions or to not work at all.(92)

Employers that follow workplace safety and health requirements(93) and that

spend the money necessary to provide a safe workplace for their employees are at an economic disadvantage to unscrupulous employers that "cut costs" by skimping on safety. The system makes an employer's choice to have its employees get sick (rather than spend the money necessary to install an effective safety system) more profitable than the choice to run a safe and upstanding business. Unscrupulous employers will not have a reason to put these safety measures in place until the costs of workplace injuries rise above the costs of procuring adequate safety measures.(94) Only under such a scenario will the lawfulness and social conscience of those employers who do provide safe workplaces be rewarded.

D. If It's Broke, Fix It

They say "if it ain't broke, don't fix it." But what if it is? The current workers' compensation system, which has remained virtually unchanged in the eighty years since its inception, is not meeting workers' or employers' needs. Rather than providing employees quick and sure compensation, it has failed to keep up with the changing workplace, and it is especially deficient in handling illnesses caused by toxic exposures at work.

The effects of most toxic exposures are, by their nature, often more subtle than the traumatic injuries that have been the focus of many worker protection measures.(95) Workers are less able, at least initially, to see the symptoms of toxic exposures.(96) Discovering and preventing toxic exposures is often expensive and difficult.(97) However, the effects can be much more devastating than the loss of a finger in a factory machine or a broken leg caused by a traffic accident on a delivery route. Toxic exposures often result in irreversible and fatal diseases.(98) The effect of chemicals used at work may even reach beyond work and affect a worker's family through the residues carried home on her clothes.(99) Pregnant women that are exposed to chemicals might pass on this exposure to their children.(100) Toxic chemicals seem invisible, but they have far-reaching and terrifying effects.

Procuring compensation for diseases caused by chemical exposures may prove difficult, despite the `sure and certain" guarantee of workers' compensation. Toxic exposure difficulties include the long latency periods associated with toxic exposure, the unclear causation (often muddied by non-workplace exposure to similar substances), the inability of science to keep up with the vast numbers of new substances that enter the workplace each year, the possible synergistic effects of several substances, and the unknown symptoms and effects of many chemicals.(101) Finding a connection between an illness and a workplace exposure can be very difficult, and often the employee cannot obtain workers' compensation benefits. Some states increase the worker's burden by requiring that the workplace condition be the major contributing cause of the illness, and this erects yet another barrier between the injured worker and a successful claim.(102) These difficulties are only exacerbated when the workers' compensation system protects employers that knowingly and continually subject workers to dangerous levels of chemicals.

The workers' compensation system does not adequately compensate workers injured by employers' egregious actions, nor does it adequately limit costs for employers. Small, high risk employers must pay premiums based on accident rates in their industry instead of the rates within their particular company. Employers that maintain dangerous workplaces cause a proliferation of workers' compensation claims. In turn, this proliferation of claims raises insurance rates for other law-abiding employers within that sector. Employers have no incentive to improve safety and reduce injuries and diseases when the number of claims has no relation to their insurance premium rates. The current system appears to be stuck in a self-perpetuating spiral.

III. OSHA 

A. OSHA's Beginnings

Workers' compensation statutes aim to compensate injured workers in the wake of an accident, but they do not work toward prevention of workplace injuries and accidents. Federal regulation that is focused on prevention began to appear after the Department of Labor was established in 1913.(103) Regulation of employers gradually increased, spurred on in the middle of the century by organized labor.(104) By the 1960s, an increasing number of people began to call for a federal health and safety law--aimed at reducing or preventing workplace accidents and injuries--that would apply to virtually all employers.(105) In 1970, Congress responded to this demand by passing the Occupational Safety and Health Act of 1970 (OSH Act).(106) The Occupational Safety and Health Administration (OSHA), part of the Department of Labor, would administer and enforce the Act.(107)

OSHA's stated purpose is "to assure ... every working man and woman in the Nation safe and healthful working conditions."(108) A prominent factor triggering the passage of the OSH Act was a growing awareness of occupational illness and death due to toxic exposures in the workplace.(109) The Act requires OSHA to set toxic exposure standards such that no employee would suffer material impairment of health or functional capacity, even if the employee was exposed to the substance at that level for her entire working life.(110) The OSH Act requires OSHA to base these standards on the latest scientific data and to express them in terms of objective criteria and desired performance.(111)

Unlike workers' compensation statutes, the OSH Act is not intended to supersede existing common law(112) or even workers' compensation laws.(113) Instead, it is designed to create an additional approach to workplace health and safety problems.(114) The Act assigns two main functions to OSHA: 1) setting standards and inspecting workplaces in order to ensure that employers are following the standards; and 2) providing a safe, healthy workplace.(115) OSHA and its supporters point to a progressive decline in workplace fatalities and injuries as a measure of its success.(116)

B. OSHA and Toxics

OSHA has great potential for protecting workers from unsafe chemical exposures. OSHA's focus on regulation and prevention is especially important in the area of toxic exposures. Compensating workers for a chemical exposure after the fact carries with it difficult problems of causation(117) because workers may often be unaware of or forget the exposure when an illness develops years later. Even if a worker recognizes a causal link, statutes of limitation may foreclose her common law or workers' compensation claim.(118) Additionally, unlike many traumatic injuries that can be healed or rehabilitated, occupational diseases caused by hazardous chemicals are often chronic or have serious and irreversible effects.(119) Compensation for chemical exposures--whether in the form of civil damages or workers' compensation--cannot make up for a lost life, a damaged immune system, chronic and debilitating asthma, or permanent brain damage.(120) Preventing exposures is very important and can even save lives.

However, OSHA has failed to successfully secure worker safety in the area of toxic exposures. A 1995 presidential report estimated that 50,000 people died from workplace chemical exposures each year.(121) A more recent study estimated that cancers resulting from occupational exposures--three to five percent of all cases--were more than the estimated number of cases caused by environmental pollution.(122) Earlier OSHA reports indicated that occupational exposures caused over 20% of all cancer deaths in the United States.(123) Why are these numbers so high when many of these workplace chemical exposures are predictable and preventable?(124)

C. OSHA's Place in Employment Relations

Unlike the workers' compensation system, where the problems surface through the accident reports workers file, OSHA must actively seek out workplace problems. Sometimes workers do file complaints with OSHA. However, nothing will happen unless an inspector visits the workplace. The amount of money Congress budgets for the agency determines how many inspectors it can have in the field to seek out infractions,(125) and legislative attempts to reduce OSHA's budget have had a significant effect on the agency's ability to do its job.(126) Political pressure can also affect which employers OSHA cites and how it cites them. OHSA's effectiveness, therefore, depends heavily on the politics of the day.

OSHA is also plagued by a poor public image. Employers and businesses have an especially low expectation of the agency.(127) OSHA is pervasive and intrusive, and the financial and administrative costs of compliance can be high.(128) Many employers believe that OSHA is just "out to get them." They think that once they are inspected, OSHA will fund something to cite them for, no matter how small.(129) This negative pubic image may lead to pressure from voters and lobbyists to keep OSHA's budget small and thereby reduce the effectiveness of its enforcement program. Legislators may also feel pressure from their constituents to pass laws that weaken OSHA's already limited power to regulate workplace safety. Finally, if a business anticipates OSHA will dig up some violation at inspection--regardless of the effort that the business has put into trying to comply--that business will be less serious about its duty to follow all of OSHA's regulations.

OSHA's structure and mandate also make it difficult for the agency to effectively regulate health and safety issues. A small budget means few workplaces get inspected; and when OSHA does inspect and find violations, its power to deter future violations is limited by caps on civil penalties(130) and a low maximum period of incarceration for criminal actions.(131) When penalties are assessed, often they are imposed ineffectively.(132) With a low risk of inspection, the standard advance warning of inspections,(133) and a low risk of serious penalty (even if they are inspected),(134) employers have little incentive to comply with OSHA regulations. In addition, employers' limited liability under the workers' compensation system further reduces the risk that employers will suffer any severe financial penalty for maintaining hazardous workplaces.(135) These factors do nothing to encourage employers to provide safe workplaces(136) and instead result in what one author calls "OSHA's dismal failure to protect the health and safety of workers."(137)

As OSHA has limited resources, workers could help monitor employer compliance and report violations. While many workers do report workplace problems, they currently have little incentive to do so. There is no private cause of action for OSHA violations.(138) The most a worker would gain by reporting a violation is a visit by an inspector and maybe an abatement of the problem. Although retaliation against whistleblowers is prohibited,(139) a worker might fear employer mistreatment or stigma among co-employees if she files a report.

Even though many employers resent OSHA's presence in the workplace, most do not set out to defraud OSHA or to avoid compliance. For many employers, knowing how to comply and having standards with which to comply is the biggest problem. For example, OSHA has promulgated a Hazard Communication Standard (HCS)(140) that requires businesses that use or make a product that contains or qualifies as a "hazardous chemical" to provide their employees with information about that chemical.(141) Although the standards technically affect nearly every employer, many employers do not comply.(142) Either they are unaware of the HCS, or they think it does not apply to them because they do not make "hazardous chemicals."(143)

OSHA has also faced problems setting and defending standards to regulate hazardous substances.(144) For example, a trade association sued OSHA after it promulgated its benzene standard, arguing the standard was too strict.(145) The Supreme Court struck down the standard because OSHA failed to show it was "reasonably necessary and appropriate to remedy a significant risk of material health impairment."(146) The Court reached this determination even though benzene was known to be fatal at high levels of concentration and had been shown to cause leukemia at lower-level, extended-time exposures.(147) Nevertheless, the Court provided little guidance as to how OSHA was to sufficiently prove that benzene posed a significant risk to health.(148) In another case, a labor union sued OSHA, arguing that OSHA's Air Contaminants Standard,(149) which set exposure limits for 428 toxic substances, was not strict enough and was underprotective of employee health.(150) The Eleventh Circuit vacated OSHA's standard and sent it back to the agency, with little more advice than the Supreme Court provided in the Benzene case.(151)

D. How Can OSHA Be Saved?

Although some estimates assert that OSHA has been effective in bringing down the number of workplace accidents and injuries,(152) others note that workplace injuries were declining even more rapidly before the OSH Act was enacted.(153) OSHA's limited resources, poor public image, and structural limits prevent the agency from being an effective force for reducing workplace harms.

This overall ineffectiveness is attributable to a lack of resources rather than to poor work on the part of the agency. Studies indicate that OSHA inspections have a significant effect on the workplace.(154) The rate of injuries and fatalities has fallen most significantly in those areas upon which OSHA has focused its attention. For example, OSHA has conducted almost haft of its inspections in the construction industry(155) and the fatality rate in that industry has since fallen by 78% and the injury rate by 40%.(156) Another study found that, for three years after a business is inspected, injuries are reduced by 22% and lost workdays by 20%.(157) However, inspection results have had limited "spillover" effects on employers that are not inspected, probably because most employers have "very little reason to fear an inspection."(158)

Thus, OSHA could significantly reduce workplace injuries if it were a more regular presence in the average workplace. It is especially desirable that OSHA focus on chemical exposures, as a large number of long-term serious injuries and fatalities can be prevented by reducing or abating occupational exposures to toxins.

Recently, Congress increased OSHA's penalty allowances and the Department of Justice is more willing to pursue prosecutions. OSHA is trying to change its public image by moving from a strictly command-and-control regulation scheme to a more cooperative model that offers incentives for businesses that make good faith efforts to maintain a safe workplace.(159) However, OSHA still has a long way to go. Over the span of nineteen years, OSHA referred only 121 criminal cases to be prosecuted.(160) Of these cases, prosecutors declined to prosecute sixty-six cases, obtained guilty pleas in twenty-seven cases, obtained no contest pleas in five cases, settled two cases, and obtained convictions in five cases.(161)

OSHA's budget continues to support only a small number of inspectors relative to the number of workplaces.(162) Budget increases are not in OSHA's near future; for several years reformers tried to limit OSHA's power and to cut up to one-haft of its budget.(163) As one author noted, "[t]here appears to be an overall reluctance to have OSHA inspectors act as police and reluctance for there to be severe penalties for employers who break the law."(164) However, if OSHA is to be an effective regulatory force, "it should cost an employer more to break the law than to observe it.... [I]t is ludicrous to think that less regulation and enforcement of workplace safety and health will promote improved workplace conditions."(165)

IV. CRIMINAL LAW

A. Using State Criminal Law to Prosecute Occupational Violations

Under early common law, courts believed that corporations could not be prosecuted for crimes that required intent.(166) Gradually, courts began allowing prosecutions of corporations for omissions, and later for positive acts. For example, in 1904 a court upheld manslaughter indictments against a corporation after 900 people drowned because the corporation had furnished its ship with defective life preservers.(167)

As corporations began to enjoy the same benefits as people, courts became more comfortable charging them with the same burdens. By 1909, it was clear that a corporation could be charged with intent In that year, the Supreme Court noted if "the invisible intangible essence of air, which we term a corporation, can level mountains, fill up valleys, lay down iron tracks, and run railroad cars on them, it can intend to do it, and can act therein as well viciously as virtuously."(168) Under today's law, the mental state of a corporate agent is imputed to the corporation, and the corporation is vicariously liable for crimes that its agent commits in furtherance of the corporation's business.(169)

Recently, in large part because of OSHA's lack of effective criminal prosecutions, state prosecutors have more aggressively pursued criminal penalties for workplace crimes.(170) Prosecutors have charged both the corporation and the responsible corporate agents for workplace death.(171) In Illinois, for example, a company president, plant manager, and plant foreman were convicted of murder for the death of a worker at a silver reclamation factory.(172) Similarly, in Texas, a corporation and its president were convicted of criminally negligent homicide after the walls of a trench collapsed and killed two employees.(173) Likewise, New York prosecutors charged a general contractor, its president, and a subcontractor with manslaughter and reckless endangerment after two workers drowned while digging a ditch for a water and sewer line.(174) Although some criminal prosecutions are dismissed on appeal,(175) the general trend is toward upholding corporations' convictions.(176) The risk that a conviction will be upheld--along with the stigma of adverse publicity--can be a significant deterrent even if no "real" penalty transpires.

B. Effectiveness of Criminal Prosecutions

Holding corporate officers liable for serious workplace injuries that result from their own criminal actions can serve several valid purposes. A criminal conviction involving jail time can motivate or deter conduct in a way that fines cannot.(177) Fines can be internalized by the company and simply passed on to the employees or consumers.(178) The threat of a jail sentence, however, may lead corporate decision-makers to consider more than simple finances when determining how to treat workers.(179)

The Supreme Court stated that, although the standards to which corporate officers are held are demanding, "they [the standards] are no more stringent than the public has a right to expect of those who voluntarily assume positions of authority in business enterprises."(180) When a tragic event does occur, a community may seek justice by requiring the responsible parties to pay for their choices.(181) Criminal prosecutions often follow a large or notorious workplace accident,(182) and these prosecutions can "give the community satisfaction by expressing its disapproval."(183)

Finally, in addition to helping a state control corporate actions that affect its citizens, local criminal prosecutions may also point out hazards or problems that OSHA might not otherwise have discovered.(184) Furthermore, state prosecutors may be better equipped to prosecute employers following a workplace tragedy. For example, in People v. O'Neil,(185) OSHA investigated the worker's death and fumed the employer $4855, but it subsequently halved the penalty.(186) State prosecutors chose to investigate further and discovering a pattern of egregious conduct,(187) brought a criminal case against the company and several officials. The officials were sentenced to twenty-five years in prison for murder and reckless conduct; the company was fined $24,000 for manslaughter and reckless conduct.(188)

One author described the use of state homicide laws to hold corporations and their agents criminally liable as an "emerging trend."(189) In 1988, Mr. Koprowicz argued that criminal liability could be a powerful deterrent it corporations and agents that allow hazardous working conditions because of the heavy fines, the jail time for responsible agents, and the stigma that attaches to a company as a result of a criminal conviction.(190) Prosecutions under state criminal laws have indeed continued, although perhaps not as the sweeping trend that Mr. Koprowicz envisioned.

Despite their potential effectiveness as a deterrent, criminal convictions for employers' conduct in relation to their employees are rare for several reasons. First, corporations do not have a body that can be jailed.(191) Second, there are public policy reasons for not criminally punishing corporate agents, For example, it may be difficult to tell who is responsible, and sometimes it is even harder to determine whether they had any choice but to act as they did.(192) Finally, prosecutors often do not have the human and economic resources to go after anyone except the worst offenders.(193)

While the deterrent effect of criminal liability could be a powerful one, the tool is so rarely used it is not yet an effective mechanism for reducing toxic exposures in the workplace. So long as criminal liability is rarely prosecuted, employers may determine the risk of criminal sanctions is worth the money they could save by ignoring OSHA's standards.(194) Additionally, any fines assessed might be recovered--without much cost to the convicted company--through increased prices, worker wage cuts, or layoffs, which serve to minimize or nullify the deterrent effect.(195) Finally, criminal sanctions do not directly identify and remove threats to worker safety.(196)

C. Willful and Knowing Toxic Exposures as a Crime

Criminal prosecutions of toxic exposure cases can be effective following large-scale or notorious disasters.(197) Fortunately, such accidents are rare. Using criminal liability to address the more typical case of an individual who is gradually harmed by workplace exposure to toxic chemicals is a much more difficult task. If criminal prosecutions are to effectively encourage safe workplaces, they will have to take on the more mundane, typical exposures, like the one in Davis.

The majority of workers suffering injury from toxic exposures are not injured by a traumatic event, but rather they are injured by a gradual process.(198) Causation problems already exist when dealing with lengthy toxic exposure periods.(199) These causation problems are multiplied by the "beyond a reasonable doubt" standard applicable to criminal cases.

If criminal prosecutions only follow large accidents, employers that disregard worker safety in order to economize are not likely to be deterred. But irresponsible employers may decide to obey the law when the threat of criminal prosecution extends to OSHA violators that would routinely endanger their employees rather than invest in the requisite safety equipment and training.

V. TORT LIABILITY

Common law tort liability for toxic exposures calls upon a variety of different causes of action. These include nuisance, negligence, trespass, battery, strict liability for abnormally dangerous activities, and products liability.(200) Plaintiffs can sue for traditional damages as well as for some creative alternative damages. Various courts have been willing to award damages for fear of future disease,(201) subcellular injury,(202) the need for medical monitoring,(203) and the increased risk of disease,(204) in addition to the more traditional personal injury damages.

Although workers' compensation generally bars tort remedies for a worker injured in the course of employment,(205) some plaintiffs have found a few ways to make use of the tort system. Some workers have successfully sued manufacturers of a product that they use at work for products liability,(206) while others have sued third parties for their role in the accident or exposure.(207) In other situations a worker can sue her own employer under either the dual capacity doctrine(208) or the intentional injury exception.(209) The intentional injury exception is the most common way that a worker can seek civil damages for a toxic exposure.(210) However, due to the strict interpretation of this exception,(211) courts rarely allow workers to use this option.

Workers' success with intentional injury claims in Oregon has been limited to surviving the employer's motion for summary judgment, after Which the case presumably settles. In one Oregon case, an employer ordered two employees to get on their hands and knees to clean up a PCB spill without protective clothing.(212) The employees sued the employer for battery.(213) The employer's motion for summary judgment, citing the exclusivity of workers' compensation, was denied.(214) The court found an "inference of ... deliberate intention to injure" because the employer "ordered the two workers to perform their task in a manner requiring them to initiate and maintain contact with the PCBs" allowed.(215)

In another case, an employer put up booths covering employees while they painted motor homes, but the booths were erected only to keep the dust off and did not provide adequate ventilation.(216) The employer did not provide respirators, despite employees' repeated requests.(217) The employer decided not to buy the respirators, even though his insurance inspector told him (twice) to do so, because they were too expensive.(218) The court held that the jury could reasonably infer the existence of a deliberate intent to injure from the employer's actions and denied summary judgment.(219)

Even if a worker proves "deliberate intent," she faces other problems common to toxic tort suits.(220) These problems include proving both individual and generic causation,(221) setting the amount of damages, and rebutting defenses to the action. Although these issues make toxic exposure suits difficult to win, the problems are not insurmountable. Many plaintiffs win civil cases for injuries caused by toxic exposures, and as scientific knowledge continues to grow, courts are better able to deal with problematic issues of causation(222) and are more likely to reach just results--but only, of course, for those who are allowed into the tort system.

VI. CONCLUSION

The occurrences of chemical exposures in the workplace can and should be reduced. However, worker protection or compensation schemes provide no satisfactory incentives or deterrents to meet this goal. In the current legal and regulatory landscape, the only winners are employers that maintain hazardous and unsafe workplaces. Employees lose because their health is not protected as well as it could be. Upstanding employers lose because they must compete with those employers that can lower costs while they skimp on safety. Social costs include underregulated hazards and taxpayer burdens.

OSHA, charged with prevention, does not have the resources to investigate all worksites. Workers' compensation, designed to compensate accidental injuries, does not help employees when their employer knowingly and deliberately allows toxic exposures. Criminal sanctions, intended to deter bad conduct, are brought too infrequently and too often are overturned on appeal. The best way to protect employees, reward virtuous employers, and transfer the costs of hazardous worksites from society and onto the bad actor is to allow employees to sue unscrupulous employers in the tort system.

This should apply only in a narrow and well defined set of circumstances, specifically applicable to hazardous chemical exposure. First, the employer must know both it is violating the law and this violation has a serious effect on its employee. This knowledge could be imputed in several specific ways. If the employer had been cited by OSHA for a serious violation, then the employer can be deemed to know a serious hazard exists in her company. Also, if the employee has given her employer notes from her doctor detailing the effect that the chemical exposure has had on the employee, then the employer can be deemed to know about the problem.

Second, the employer must make the deliberate choice to continue the dangerous situation. If it has been cited by OSHA for a serious violation and has not taken any steps to correct this, then it chooses to perpetuate the dangerous condition. For example, if employees report they are repeatedly becoming sick from fumes and request adequate safety protection, if the employees are entitled to this safety protection by law, and if the employer decides to save its money instead of purchasing the required and requested safety protection, then the employer has made a deliberate choice.

Finally, the employer must be substantially certain that future harm will occur. This standard would be similar to the common law meaning of "intent." The employer must first know that its employees are getting sick from exposure to chemicals at work.(223) The employer must also know exposure at unsafe levels will continue.(224) If, despite this knowledge, the employer continues to subject the employees to the chemical exposure without providing adequate protection, then it is substantially certain that one or many employees will become seriously ill in the future.

Similar standards have been applied in other states with much success. So far, Ohio,(225) Michigan,(226) West Virginia,(227) Louisiana,(228) and North Carolina(229) allow workers a civil remedy when the employer acts in a way more similar to common law intent rather than the narrow workers'. compensation "deliberate intent."(230) These states allow the employee to sue her employer in tort when an employer acts with the substantial certainty that an employee will be hurt by that employer's conscious, knowing choice.(231) Despite critics' warnings about the floodgates opening up and the workers' compensation system losing all meaning, the expansion has been very limited.(232) Only a few cases, containing the most egregious employer actions, have fallen under this "expanded" standard.(233)

Allowing the "deliberate intent" element to mean what it means in common law will also help rectify some of the problems with the other systems aimed at protecting workers and deterring reprehensible employers. OSHA, for example, does not have the resources to check and re-check every employer for compliance with its standards. Allowing employees to sue will help assure that employers follow OSHA's mandates. Employers should be liable when they do not follow up on an OSHA citation, and allowing employees to use evidence of an employer's failure to follow up can help encourage responsibility even when OSHA cannot send an inspector to check that workplace. Employers should also be compelled to follow OSHA's safety standards, even if OSHA is not able to inspect every workplace. Allowing information of violations to factor into the "deliberateness" of an employer's actions can help assure OSHA compliance, even when OSHA's limited resources prevent widespread inspections.

Allowing civil suits in these circumstances also will help fill the gaps. that criminal prosecutions cannot fill because of political, financial, or administrative pressures, or because indictments are repeatedly overturned on appeal. In sum, allowing these suits will make workers' compensation more fair and more true to the original bargain. It will punish only those employers that choose to sacrifice their workers in the interest of profits. It will not allow businesses that are bad actors to be more successful than the `good' employers. At the same time, it will preserve limited liability for worthy employers that choose not to harm their employees.

It is not possible to have a completely hazard-free workplace. However, it is possible to do better than the current legal system allows. There is no reason to protect employers who profit from their illegal and unconscionable behavior. There is no need for employees to be exposed to unsafe levels of hazardous chemicals that make them sick, nor for employees to be denied a remedy after such exposures. There is no need to put upstanding employers who maintain a safe workplace--even though it may cost a little more--at a disadvantage to employers who circumvent health and safety laws in order to increase their own profits. There is no need to have society bear the costs of workplace injuries that can be controlled and abated by employers. Those rare and outrageous instances where an employer violates the law and severely hurts workers should be addressed in a manner suited to the reprehensible behavior. In such situations, employees should at the very least have access to the civil system and the more adequate and fitting damages it allows.

(1) Davis v. United States Employers Council, Inc., 934 P.2d 1142 (Or. Ct. App. 1997).

(2) Id. at 1144.

(3) Id.

(4) Id.

(5) Plaintiffs Opening Brief and Abstract of Record at 12, Davis v. United States Employees Council, Inc., 934 P.2d 1142 (Or. Ct. App. 1997) (No. CA A85584) [hereinafter Plaintiffs Brief].

(6) Id. at 13. Defendant was cited for regulatory violations twice in 1980, once in 1984, and once in 1985, after which he lied to inspectors on their subsequent visits.

(7) Davis, 934 P.2d at 1144. Mr. Davis contended that his supervisor "confessed that he and [another supervisor] had a drill to deceive inspectors." Plaintiffs Brief, supra note 5, at 13.

(8) Davis, 934 P.2d at 1146.

(9) Id.

(10) OR. REV. STAT. [sections] 656.156(2) (1999) ("If injury or death results to a worker from the deliberate intention of the employer of the worker to produce such injury or death, the worker ... may take under this chapter, and also have cause for action against the employer as if such statutes had not been passed, for damages over the amount payable under those statutes.").

(11) Drafts, 934 P.2d at 1142; OR. REV. STAT. [sections] 656.018(1)(a) (1999) ("The liability of every employer who satisfies the duty ... is exclusive and in place of all other liability arising out of injuries, diseases, symptom complexes or similar conditions arising out of and in the course of employment that are sustained by subject workers.").

(12) Davis, 934 P.2d at 1151.

(13) Id. at 1144.

(14) Id. at 1151.

(15) Id.

(16) Most states say only "deliberate intent" to injure allows the worker to seek recoveries outside workers' compensation. See infra note 61. But the titles of the statute sections creating this exception often mention only "intentional injuries." See, e.g., OR. REV. STAT. [sections] 656.156 (1999) ("Intentional Injuries"); WASH. REV. CODE [sections] 51.24.020 (1998) ("Action against employer for intentional injury"); MICH. COMP. LAWS [sections] 418.131 (1999) ("Exclusive remedy; exception for intentional tort; employee and employer, definition"). However, because as explained below in Part II.B., this is not the same as the common law understanding of intentional injury, but rather is a significantly higher standard. This Comment will refer to the concept as "deliberate intent" or "deliberate intention."

(17) Occupational Safety and Health Act of 1970, 29 U.S.C. [subsections] 651-678 (1994).

(18) Id. [sections] 651. Other statutory schemes that can protect workers from toxic exposures include Toxic Substances Control Act, 15 U.S.C. [subsections] 2601-2692 (1994 & Supp. III 1997); Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. [subsections] 136-136y (1988); Federal Hazardous Substances Act, 15 U.S.C. [subsections] 1261-1277; and Coal Mine Health and Safety Act, 30 U.S.C. [subsections] 801-962 (1994).

(19) See discussion infra Part IV. Although criminal sanctions do not require "deliberate intent," most criminal penalties are available only for acts that are at least willful or knowing. See infra Part IV.C. See, e.g., Alaska v. Hazelwood, 946 P.2d 875 (Alaska 1997) (noting the mens rea requirement for prosecution of criminal negligence).

(20) The OSH Act created three kinds of criminal violations: 1) willful violation of standards, rules, or orders that results in an employee's death, 29 U.S.C. [sections] 666(e) (1994); 2) giving advance notice of inspections Id. [sections] 666(f); and 3) making false representations in required records. Id. [sections] 666(g).

(21) For successful conviction under state criminal laws, prosecutors must prove criminal intent or mens rea. See Hazelwood, 946 P.2d at 878-79. Criminal sanctions under the OSH Act will be discussed in the specific OSHA section of this Comment. Otherwise, discussion of criminal prosecutions will refer only to those brought by the state or local authorities.

(22) This is due to a number of factors, discussed infra Part III (OSHA) and Part IV (state criminal prosecutions). See, e.g., Joleane Dutzmaan, State Criminal Prosecutions: Putting Teeth in the Occupational Safety and Health Act, 12 GEO. MASON L. REV. 737 (1989) (discussing fact of and causes for the ineffectiveness of OSHA penalties); Michael T. Cimino, Criminal Prosecution of Workplace Safety Violations, 94 W. VA. L. REV. 1007 (1992) (discussing the fact that despite the high number of workplace deaths the number of prosecutions for violations under the OHS Act was minimal); Thea D. Dunmire, The Problems With Using Common Law Criminal Statutes to Deter Exposures to Chemical Substances in the Workplace, 17 N. KY. L. REV. 53 (1989) (discussing the various complications in charging an employer with a crime).

(23) See Emily A. Spieler, Perpetuating Risk? Workers' Compensation and the Persistence of Occupational Injuries, 31 HOUS. L. REV. 119 (1994) (noting that the workers' compensation system has no deterrent effect but instead actually encourages employers to reduce claims rather than lower injury rates); Kenneth Matheny, Achieving Safer Workplaces By Expanding Employers' Tort Liability Under Workers' Compensation Laws, 19 N. KY. L. REV. 457, 473 (1992) (arguing that workers' compensation has had little effect on safety, in part because of the low benefits level).

(24) "Although one objective of workers' compensation was to encourage industrial safety and health, it has had the opposite effect largely because benefit levels do not reflect the full costs of occupational accidents." Arthur J. Amchan, "Callous Disregard" for Employee Safety: The Exclusivity of the Workers' Compensation Remedy Against Employers, 34 LAB. L.J. 683, 686 (1983). This is perhaps because of employers' perception that the costs of workers' compensation insurance are not related to the insured employer's control over the occurrence of the harm. Spieler, supra note 23, at 185.

(25) See Granta Y. Nakayama, Corrosion Proof Fittings v. EPA: No Death Penalty for Asbestos Under TSCA, 1 GEO. MASON INDEP. L. REV. 99, 99 n.2 (1992) (citing Charles Noble, Keeping OSHA's Feet to the Fire, TECH. REV. 44 (1992) (estimating that between 1,000 and 3,000 new substances appear in the workplace every year)); Charles W. March, Note, The Right to Know: Does OSHA's Toxic Hazard Communication Rule Preempt State Statutes Requiring Public Discloser of Workplace Toxics?, 62 U. DET. L. REV. 463, 470 (1985) (comparing state and federal regulations of toxic substances and arguing against federal preemption of what the author believes are more effective state hazard communication laws).

(26) The Bureau of Labor Statistics reported 391.9 nonfatal occupational illnesses per 10,000 full-time workers in 1998. BUREAU OF LABOR STATISTICS, U.S. DEPT. OF LABOR, NONFATAL OCCUPATIONAL ILLNESSES BY CATEGORY OF ILLNESS, PRIVATE INDUSTRY, 1994-1998, available at http://stats.bls.gov/os/ostb0746.txt (Dec. 16, 1999). The majority of the occupational illness cases reported were due to repeated trauma (such as carpal tunnel syndrome), and the rest had some connection to toxic exposures or substances. Id. The Bureau notes that "[s]ome conditions (for example, long-term latent illnesses caused by exposure to carcinogens) often are difficult to relate to the workplace and are not adequately recognized or reported. These long-term latent illnesses are believed to be understated in the survey's illness measures." BUREAU OF LABOR STATISTICS, U.S. DEPT. OF LABOR, News Release: Workplace Injuries and Illnesses in 1998 at 2, available at http://stats.bls.gov/os/osnr0009.txt (Dec. 16, 1999).

(27) See Richard V. Watkins & Erwin C. Gutzwiller, Where We're Headed, 68 OCCUPATIONAL HEALTH & SAFETY 104 (1999). Twenty to fifty percent of workers in industrial countries may be subject to hazardous occupational exposures. Id. More than 100,000 different chemical products are presently used in the workplace and 1500 to 2000 are widely used within industry. Id. Occupational causes of cancer deaths are estimated at between 2-38% of the overall rate of cancer in the general population. Id. See also William J. Maakestad & Charles Helm, Promoting Workplace Safety and Health in the Post-Regulatory Era: A Primer on Non-OSHA Legal Incentives That Influence Employer Decisions to Control Occupational Hazards, 17 N. KY. L. REV. 9, 46 (1989):

   Workers have long served as unwitting `guinea pigs,' providing useful
   toxicological data which helped to protect the public. The effects of most
   environmental pollutants, such as carbon monoxide, lead, mercury and also
   most human carcinogens, were first detected in workmen; the in-plant
   environment is a concentrated toxic microcosm of that outside.... The
   demand of labor to participate actively in protecting the health and safety
   of workers is basic and inalienable and cannot be sacrificed to economic
   interests.

(quoting James Atleson, Threat to Health & Safety: Self-Help under the NLRA, 59 MINN. L. REV. 647, 647 (1975)).

(28) At common law, the intent element of intentional torts is met by the defendant's desire to cause the harm or belief with substantial certainty that harm will result. RESTATEMENT (SECOND) OF TORTS [sections] 8A (1965). Many states, including Oregon, have read substantial certainty out of intent as it applies to employers and instead only accept actual, conscious "wish to injure" as adequate intent. See, e.g., Davis v. United States Employers Council, Inc., 934 P.2d 1142, 1150 (Or. Ct. App. 1997) ("the `wish to injure' is the sine qua non of `deliberate intention'"); Birklid v. Boeing Co., 904 P.2d 278, 285 (Waste 1995) (requiring actual knowledge that an injury would occur and willful disregard of that knowledge).

(29) Darin Calbreath Davidson, Expansion of the "Deliberate Intention" Exception to Waskington's Workers' Compensation Exclusivity: Following Birklid v. Boeing Co., When Does an Employer Intend Employee Injury?, 32 GONZ. L. REV. 225, 227 (1997).

(30) Arthur Larson notes that difficulties in assessing the employer's common law duties to employees, the plethora of common law defenses available, and the reluctance of co-employees to testify against the employer led to a "picture of helplessness which characterized the position of the injured worker of the precompensation era." 1 ARTHUR LARSON & LEX K. LARSON, LARSON'S WORKERS' COMPENSATION LAW [sections] 2.03, at 2-6 (2000). Prosser and Keeton add that an estimated 70-94% of industrial accidents went uncompensated under the common law system. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS [sections] 80, at 572 n.43 (1984).

(31) Berkowitz & Berkowitz, The Survival of Workers' Compensation, 58 SOC. SCI. REV. 259, 262-63 (1984).

(32) KEETON ET AL., supra note 30, at 569.

(33) Contributory negligence is "[a] plaintiff's own negligence that play[s] a part in causing the plaintiff's injury and that is significant enough (in a few jurisdictions) to bar the plaintiff from recovering damages." BLACK'S LAW DICTIONARY 1056 (7th ed. 1999). The earliest case recognizing contributory negligence as an employer defense was Butterfield v. Forrester, 103 Eng. Rep. 926 (1809).

(34) Assumption of risk is "[t]he principle that one who has taken on oneself the risk of loss, injury, or damage consequently cannot maintain an action against the party having caused the loss." BLACK'S LAW DICTIONARY, supra note 33, at 121. One of the major early cases denying an employee a remedy against his employer because he assumed the risk was Farwell v. Boston & Worcester R.R., 49 Mass. (4 Met.) 49 (1842).

(35) The fellow-servant rule is "that an employer is not liable for an employee's injuries caused by a negligent co-worker." BLACK'S LAW DICTIONARY, supra note 33, at 632. This defense was first used in Priestly v. Fowler, 49 REV. Rep. 495 (1837), in order to relieve a butcher from liability for his servants negligence.

(36) Between 70-94% of workplace injuries are estimated to have gone uncompensated under the common law system. KEETON ET AL., supra note 30, at 572 n.43.

(37) Edward J. Higgins, Comment, So Much "Quo" for So Little "Quid": Time for Michigan to Reexamine the Intentional Tort Exception to Workers' Compensation Exclusivity, 1992 DET. C.L. REV. 27, 28 n.3, 33 (1992). "Statistics showed that the injuries were the fault of the employer as much as seventy percent of the time." Id, at 33.

(38) See Beauchamp v. Dow Chem. Co., 398 N.W.2d 882, 884 (1986) (discussing the 1911 Michigan Legislature's decision to create a commission to investigate the workers' compensation system in light of the evolution of larger and more dangerous plants).

(39) See Susan J. Anderson & Gerald (Jud) DeLoss, Are Employees Obtaining "Sure and Certain Relief" Under the 1995 Legislative Enactments of the North Dakota Workers' Compensation Act?, 72 N.D. L. REV. 349 (1996) (arguing that 1995 North Dakota legislative enactments do not provide the sure and certain relief that workers' compensation is supposed to guarantee).

(40) Laurence Locke, Adapting Workers' Compensation to the Special Problems of Occupational Disease, 9 HARV. ENVTL. L. REV. 249, 253 (1985) (suggesting that a trend of employee-friendly verdicts around the turn of the century caused employers to push for a limited liability system).

(41) In 1904, Massachusetts was the first state to form a commission, and other states soon followed. 1 LARSON & LARSON, supra note 30, [sections] 2.07, at 2-13. Maryland was the first, in 1902, to pass a limited accident fund statute for miners. 1902 Md. Laws ch.139. The Maryland statute, along with other early attempts to create workers' compensation schemes, was held unconstitutional. Franklin v. United Rys. & Elec. Co. of Balt. 2 Balt. City Rep. 309 (Md. 1904). New York's law was the first to be held constitutional by the Supreme Court. See infra note 43 and accompanying text.

(42) See, e.g., Franklin, 2 Balt. City Rep. 309 (holding miners' accident fund unconstitutional); Cunningham v. Northwest Improvement Co., 119 P. 554 (Mont. 1911) (holding miners' compensation act unconstitutional); Ives v. South Buffalo Ry., 94 N.E. 431 (N.Y. 1911) (holding act requiring coverage of certain hazardous employments unconstitutional).

(43) New York Cent. R.R. v. White, 243 U.S. 188 (1917).

(44) 1 LARSON & LARSON supra note 30 [sections] 2.08, at 2-15. By 1920, all but eight states had workers' compensation laws. Id. Hawaii was the last state to enact a workers' compensation statute, doing so in 1963. Id.

(45) See Higgins, supra note 37, at 36-37; LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 682-83 (2d ed. 1985).

(46) A worker can potentially sue the employer in cases of deliberate intent to injure, fraudulent concealment of hazardous working conditions, or in some states, under the dual capacity doctrine. See discussion infra note 208.

(47) See infra note 84, at 918-19. "Course of employment" is, generally, "the time [and place] during which an employee furthers an employer's goals through employer-mandated directives." BLACK'S LAW DICTIONARY, supra note 33, at 356. See 1 LARSON & LARSON, supra note 30, [sections] 3, at 3.1 for varying interpretations of the "arising out of" test and [sections] 12, at 12.1 for details concerning "course of employment."

(48) Note, infra note 84, at 919.

(49) An injury may be "scheduled" or "unscheduled." "Scheduled injuries" are those for which the amount of compensation is set by a statutory schedule (for example, loss of eyesight or limbs). 1 LARSON & LARSON, supra note 30 [sections] 86.01, at 86-2. All stares except Florida, Kentucky, and Nevada have a schedule system. Id. Once a worker's injury has stabilized and medical treatment has concluded, the worker will receive a lump sum payment based on the schedule. Id. The calculation of the lump sum the worker will receive is somewhat complicated, and is briefly explained in LARSON [sections] 86.01. "Unscheduled" injuries are those injuries not on the statutory list. Unlike scheduled injuries--where the lump sum payment bears no relation to lost earnings--the worker must prove loss of earning capacity to receive compensation for an unscheduled injury. See Glenn v. Kent Corp., 416 So. 2d 1066 (Ala. Civ. App. 1982). For example, a Florida court held that an injury to the biceps tendon in the shoulder joint was an unscheduled injury. Jewell v. Wood, 130 So. 2d 277 (Fla. 1961). See also Langhus v. Wisconsin Labor & Indus. Review Comm'n, 557 N.W.2d 450 (Wis. Ct. App. 1996) (determining that knee injury was scheduled, back injury was unscheduled; also noting benefits for unscheduled injuries were based on loss of earning capacity); Prewitt v. Firestone Tire & Rubber Co., 564 N.W.2d 852 (Iowa Ct. App. 1997) (holding injury to shoulder is unscheduled).

(50) Spieler, supra note 23, at 163.

(51) When cases are decided by juries, the defendant can never be certain of the amount of liability that the jury will assign to her. See id.

(52) Thomas D. Schroeder, Note, Workers' Compensation: Expanding the Intentional Tort Exception to Include Willful, Wanton, and Reckless Employer Misconduct, 58 NOTRE DAME L. REV. 890, 890 (1983) (tracing the history of workers' compensation and arguing that willful employer misconduct should have common law remedies rather than fall solely under workers' compensation). See, e.g., OR. REV. STAT. [sections] 656.018(1)(a) (1999) (amended by 1999 Or. Laws Ch. 6 (S.B. 460) to include "compensable") ("liability of every employer ... is exclusive and in place of all other liability arising out of compensable injuries"); MICH. COMP. Laws [sections] 418.131(1) (2000) ("The right to the recovery of benefits as provided in this act shall be the employee's exclusive remedy against the employer for a personal injury or occupational disease.").

(53) Spieler, supra note 23, at 163. Employers' private insurance carriers ("self-insurer") or a state worker's compensation fund pays out compensation to injured workers. See Price V. Fishback & Shawn Everett Kantor, The Adoption of Workers' Compensation in the United States, 41 J.L. & ECON. 305, 326 (1998).

(54) See Higgins, supra note 37, at 68, citing Beauchamp v. Dow Chem. Co., 398 N.W.2d 882, (1986).

(55) Schroeder, supra note 52, at 891. See, e.g., OR. REV. STAT. [sections] 656.018(1)(a) (1999) ("arising out of and in the course of employment"); DEL. CODE ANN. tit. 19, [sections] 2304 (1995) ("arising out of and in the course of employment"). See also Ellen P. Peirce & Terry Morehead Dworkin, Workers' Compensation and Occupational Disease: A Return to Original Intent, 67 OR. L. REV. 649 (1988) (arguing that increased coverage of occupational disease has resulted in compensation for illnesses that are only partially work-related and that this is pulling the workers' compensation system away from its original goal of covering only work-related accidents). Oregon has responded to this trend by enacting OR. REV. STAT. [sections] 656.005 (1999), which limits coverage to those diseases for which "a compensable injury is the major contributing cause of the consequential condition" (emphasis added).

(56) See, e.g., OR. REV. STAT. [sections] 656.156(1)-(2) (1999) ("If injury results to a worker from the deliberate intent of the employer ... the worker may ... also have cause for action against the employer ... for damages over the amount payable under [Workers' Compensation].").

(57) Most statutes allow civil remedies when the injury is a result of the employer's deliberate intent. Infra note 61. At one time, West Virginia allowed a civil remedy in the case of willful or wanton conduct by the employer. The leading case on this is Mandolidis v. Elkins Indus., Inc., 246 S.E.2d 907 (W.Va. 1978). However, shortly after the court held for the worker in Mandolidis, the West Virginia legislature amended its statute to clarify that the definition of deliberate intent set forth in the statute did not include willful or wanton conduct by the employer but instead required specific intent to injure. W. VA. CODE [sections] 23-4-2 (1998).

(58) Schroeder, supra note 52, at 909. Some courts have held that a worker may recover under common law for intentional injuries because the workers' compensation system only applies to accidental injuries. See, e.g., Jablonski v. Moltack, 380 N.E.2d 924 (Ill. App. Ct. 1978) (stating that "the same person cannot commit an intentional assault and then allege it was accidental"). Others say that when an employer intentionally injures an employee, it severs the employment relationship, and thus the workers' compensation statutes do not apply. See 1 LARSON & LARSON, supra note 30, at [sections] 103.01.

(59) See dual capacity doctrine, infra note 208.

(60) WARREN FREEDMAN, THE LAW AND OCCUPATIONAL INJURY, DISEASE, AND DEATH 121 (1990).

(61) Different states have different formulations of this exception. For example, Washington and Oregon's statutes use the language "deliberate intent":

   If injury or death results to a worker from the deliberate intention of the
   employer of the worker to produce such injury or death, the worker ... may
   take under this [workers' compensation] chapter, and also have cause for
   action against the employer, as if such statutes had not been passed, for
   damages over the amount payable under those statutes.

OR. REV. STAT. [sections] 656.156(2) (1999).

   If injury results to a worker from the deliberate intention of his or her
   employer to produce such injury, the worker or beneficiary of the worker
   shall have the privilege to take under this [industrial insurance] title
   and also have cause of action against the employer as if this title had not
   been enacted, for any damages in excess of compensation and benefits paid
   or payable under this title.

WASH. REV. CODE [sections] 51.24.020 (1998).

Other states provide a civil remedy for an employer's willful misconduct so long as it involves a personal act of the employer and willful disregard of the employee's life or safety. E.g., ARIZ. REV. STAT. [sections] 23-1022 (1995). Missouri provides increased compensation by 15% if the injury resulted from an employer's non-compliance with state law. MO. REV. STAT. [sections] 287.120 (1993). Others allow a civil remedy against a co-employee in cases of aggressive and unprovoked assault. E.g., WIS. STAT. [sections] 102-03(1997).

(62) Courts and legislatures interpret the "intentional act" exception very strictly. See Matheny, supra note 23 at 474 ("the deliberate intent exception to tort immunity `is more than merely strict in theory. It is fatal in fact and will preclude recovery in the absence of a `left jab to the chin'") (citations omitted). If an employer brings a gun to work and deliberately shoots his employee with it, it will be considered an intentional act. See, e.g., Virgil v. Walker, 572 P.2d 314 (Or. 1977) (holding defendant employer liable for striking plaintiff employee, even though action was provoked); Beauchamp v. Dow Chem. Co., 398 N.W.2d 882, 888 (Mich. 1986) (holding that employee may pursue a civil remedy against his employer when the employer directed or expressly authorized an assault); Perry v. Beverage, 209 P. 1102 (Wash. 1922) (finding employer acted with deliberate intent to injure when he struck plaintiff employee in the head with a water pitcher); Weis v. Allen, 35 P.2d 478 (Or. 1934) (holding employer liable for injuries to his employee from spring gun set without employee's knowledge). However, condemnable behavior like that of the employer in Davis might not be considered to evidence "deliberate intent."

(63) KEETON ET AL., supra note 30.

(64) See Davis v. United States Employers Council, Inc., 934 P.2d 1142, 1150 (Or. Ct. App. 1997) (stating that the plaintiff "must prove that his employer withheld safety measures because it wished to injure him").

(65) OR. REV. STAT. [sections] 656.156(2)(1999).

(66) See Davis, 934 P.2d at 1148-49 (citing Oregon court's holding that maintaining a dangerous workplace and directing employees to work there did not constitute deliberate intention); see also Peterick v. State, 589 P.2d 250, 266-47 (Wash. Ct. App. 1977), overruled on other grounds, Stenberg v. Pacific Power & Light Co., 709 P.2d 793 (Wash. 1985) (citing court's holding that maintenance of dangerous workplace and directing employees to work there did not constitute deliberate intention).

(67) See Davis, 934 P.2d at 1148; Peterick, 589 P.2d at 267 (holding that employer's past intentional invasion and violation of safety standards were not enough to be "deliberate intention").

(68) Davis, 934 P.2d at 1148.

(60) Id.

(70) Id. at 1150.

(71) See, e.g., N.Y. PENAL LAW [sections] 120.20 (McKinney 1998) ("A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person."); WASH. REV. CODE. ANN. [sections] 9A.36.050 (2000) (creating a "substantial risk of death or serious physical injury" is a gross misdemeanor); ALA. CODE [sections] 13A-6-24 (1975) (a person is guilty of reckless endangerment when he "creates a substantial risk of serious physical injury to another person."). This is more akin to the common law "substantial certainty" understanding of intent than the high workers' compensation standard. The employer in Davis could have been guilty under this criminal statute, but the employer did not fulfill the intent requirement needed to allow a simple tort remedy for Mr. Davis.

(72) Higgins, supra note 37, at 68.

(73) Maakestad & Helm, supra note 27, at 21.

(74) Id. Firms with less than fifteen employees pay workers' compensation premiums based on the norm for their business. Id. Larger firms are "experience rated" based on their accident history, and their premiums are set accordingly. Id. This system has not had an appreciable effect on increased workplace safety, however. See Id. at 21-24 (discussing the results of studies comparing the experience rating system to workplace injuries).

(75) Thomas O. McGarity & Sidney A. Shapiro, OSHA's Critics and Regulatory Reform, 31 WAKE FOREST L. REV. 587, 602 (1996). Small employers, which make up an estimated 85% of workplaces, are rated in this way. See U.S. DEP'T. OF LABOR, AN INTERIM REPORT TO CONGRESS ON OCCUPATIONAL DISEASES 76 (1980).

(76) McGarity & Shapiro, supra note 75, at 602.

(77) Maadestad & Helm, supra note 27, at 22.

(78) This lowered level of compensation was based on the idea that the injury was accidental. Linda Darling-Hammond & Thomas J. Knieser, The Law and Economics of Workers' Compensation, 1980 INST. FOR CIV. JUST. xv. Unlike tort law, the workers' compensation does not aim to restore the injured party to where she would have been had she not been injured. Id. Rather, it aims to provide her with enough compensation so she can exist while recovering without being a burden on society. However, this is often a small enough amount that she is inclined to return to work. Id. This logic does not make sense when applied to workplace toxic exposures that could be avoided by the employer but will actually continue whether or not the worker returns to work. Id.

(79) Id.

(80) NATIONAL COMM'N ON WORKMEN'S COMPENSATION LAWS, THE REPORT OF THE NATIONAL COMMISSION ON STATE WORKMEN'S COMPENSATION LAWS, 13-15 (1972). Some of the suggested changes included broad coverage of employees and work-related injuries and diseases, substantial protection against interruption of income, provision of sufficient medical care and rehabilitative services, encouragement of safety, and the establishment of an effective system for delivering benefits and services. Id. at 15-27.

(81) Id. at 15

(82) See Higgins, supra note 37, at 36-37 (discussing the system's original exchange of limited employer liability for expedited employee recovery).

(83) John Fabian Witt, Note, The Transformation of Work and the Law of Workplace Accidents, 1842-1910, 107 YALE L.J. 1467 (1998) (analyzing the marriage of the early 20th century workforce with the modern rise of industrial machinery).

(84) See Maakestad & Helm, supra note 27, at 26. See also Note, Compensating Victims of Occupational Disease, 93 HARV. L. REV. 916, 917 (1980) (discussing problems with trying to have occupational diseases covered by a system developed to handle traumatic injuries).

(85) For example, Mr. Davis had been working in the paint shop for nine years before he became sick and eventually incapacitated from paint fumes and lack of adequate ventilation. Davis v. United States Employers Council, Inc., 934 P.2d 1142, 1144 (Or. Ct App. 1997). Asbestos often takes years to develop into asbestosis, and longer still to develop into mesothelioma and eventually fatal lung cancer. Piero Mustacchi, M.D., Lung Cancer and Asbestos Liability, 17 J. LEGAL MED. 277, 280-86 (1996).

(86) While there are worker right-to-know laws, the employer can easily avoid his duty to disclose either by not providing the information at all, not explaining its significance, or disclosing but failing to provide protection. See, e.g., WASH. REV. CODE [sections] 49.70 (1998) (Washington's Worker and Community Right to Know Act).

(87) FREEDMAN, supra note 60, at 19.

(88) Id at 124.

(89) Id at 166.

(90) See, e.g., Davis, 934 P.2d 1142 (employer did not provide ventilation mask); Lusk v. Monaco Motor Homes, Inc., 775 P.2d 891 (Or. Ct App. 1989) (employer had paint booth built without ventilation); Gulden v. Crown Zellerbach Corp., 890 F.2d 195 (9th Cir. 1989) (employer instructed employees to clean up PCB without masks or protective clothing); People v. O'Neil, 550 N.E.2d 1090 (Ill. App. Ct. 1990) (employer did not provide protective clothing or mask in silver reclamation factory).

(91) In Davis and Lusk, for example, the supplied-air respirators that the employees needed to safely do their jobs cost $2,000 each. Davis, 934 P.2d at 1146; Lusk, 775 P.2d at 892. Sometimes the employee might not be able to make the workplace safe--even if she could afford it--if safety measures involve structural changes to the workplace (such as installing a ventilation system).

(92) Stuart Diamond Jobs and Risks Are Linked At Sister Plant in the U.S., N.Y. TIMES, Dec. 5, 1984, at A12. See also Davis, 934 P.2d at 1144 (plaintiff and co-workers repeatedly complained about working conditions and the effect on their health to no avail). One of the plaintiffs in Birklid v. Boeing Co., 904 P.2d 278 (Wash. 1995) stated in her affidavit:

   [T]here were approximately 20 of us who were feeling really sick and went
   down to Boeing Medical and were given medical restrictions. When we got
   back to work, our supervisor, Edna Loop, told us that we had to go back to
   Boeing Medical and have the restrictions lifted or we could all go find
   ourselves jobs at McDonald's, that we wouldn't be working for Boeing.

Id. at 281 n.2 (citations omitted). See also Jane P. North, Employees' Assumption of Risk: Real or Illusory Choice?, 52 TENN. L. REV. 35 (1984) (analyzing the rule of assumption of risk in the employment context).

(93) See discussion infra Part III.

(94) See McGarity & Shapiro, supra note 75, at 603 (discussing the disincentive aspect of alternative steps employers can take to decrease compensation payments that are less expensive than taking safety precautions).

(95) One author describes the difficulties involved in discovering and preventing death and injuries caused by chemical exposures in the workplace as follows:

   The incidence of chronic diseases, like lung cancer, liver disease, and
   heart disease, has increased in recent years, and it is believed that many
   of such chronic diseases are related to the man-made environment in both
   the workplace and the general environment. Chronic diseases usually have
   long latency periods, and the time lag makes determination of the causal
   relation difficult. In addition, chronic diseases may have multiple causes,
   and because they occur in the general population, too, the causal relation
   becomes even more complex.

      The spread of occupational disease affects millions of workers in mines,
   factories, fields, research laboratories, and even office environments.
   Occupational disease can be termed an epidemic that only recently has been
   epidemiologically documented.

FREEDMAN, supra note 60, at 2 (citations omitted).

(96) Id.

(97) Id.

(98) Id. In 1980, OSHA confirmed that more than 20 percent of all cancer deaths can be attributed to occupational exposure, and the National Institute for Occupational Safety and Health (NIOSH) has listed more than 2,000 substances that at least partially cause cancer. Id. at 6.

(99) See Associated Indus. of Mass v. Snow, 898 F.2d 274, 281 (1st Cir. 1990) (holding that the state can protect families of asbestos workers by requiring workers to wear disposable protective clothing); Tragarz v. Keene Corp., 980 F.2d 411, 416 (7th Cir. 1992) (citing a study indicating that family members may be exposed to asbestos dust carried home on workers' clothes).

(100) See, e.g., Snyder v. Michael's Stores, Inc., 945 P.2d 781, 781 (Cal. 1997) (suit "to recover damages for child's in utero injuries allegedly caused by mother breathing toxic fumes at work"); international Union, United Auto., Aerospace & Agric. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991) (class action suit challenging defendants policy barring fertile women from jobs involving lead exposure at levels greater than the OSHA standard).

(101) See GERALD W. BOSTON & M. STUART MADDEN, LAW OF ENVIRONMENTAL AND TOXIC TORTS: CASES, MATERIALS AND PROBLEMS (1994).

(102) See, e.g., OR. REV. STAT. [sections] 656.005(7)(a)(A) (1999) ("No injury ... is compensable ... unless [it] is the major contributory cause.").

(103) OCCUPATIONAL SAFETY AND HEALTH LAW 21 (Am. Bar Ass'n ed., 1988).

(104) Id. at 24.

(105) Id. at 26.

(106) 29 U.S.C. [subsections] 651-678 (1994).

(107) The OSH Act allows states to adopt their own OSHA-approved plans. 29 U.S.C. [sections] 667 (1994).

(108) Id. [sections] 651(b).

(109) H.R. REP. NO. 91-1291, at 15 (1970).

(110) 29 U.S.C. [sections] 655(b)(5) (1994).

(111) Id.

(112) The OSH Act does not preempt state criminal law. See sources cited infra note 170. Nor does the OSH Act contain any provision like the workers' compensation "deliberate intent" exception that takes away remedies otherwise available at common law. However, if a state does not exercise the option to have its own plan, then it is restricted in the ways that it can regulate worker safety issues. Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 97 (1902) (interpreting 29 U.S.C. [sections] 667 as preempting state occupational safety and health standards when a federal standard on the issue already exists).

(113) 29 U.S.C. [sections] 653(b)(4) (1994).

(114) OCCUPATIONAL SAFETY AND HEALTH LAW, supra note 103, at 711. See also 29 U.S.C. [sections] 653(b)(4) (1994).

(115) U.S. DEP'T OF LABOR, SMALL BUSINESS HANDBOOK, OCCUPATIONAL SAFETY HEALTH (1997), available at http://www.dol.gov/dol/asp/public/programs/handbook/osha.html (last modified Nov. 1997).

(116) BILL CLINTON & AL GORE THE NEW OSHA: REINVENTING WORKER SAFETY AND HEALTH 1 (1995). Since the OSH Act was enacted in 1970, the overall workplace death rate has been cut in half. Id. Drastic reductions have occurred in a few areas on which OSHA has focused. Id. For example, brown lung disease, caused by cotton dust, has been `virtually eliminated' and blood poisoning from lead has dropped by about 2/3. Id. See also OCCUPATIONAL HEALTH SAFETY ADMINISTRATION, OFFICE OF STATISTICS, OSHA PERFORMANCE REPORT, FY1996 (Apr. 1997), available at http://www.osha-slc.gov/Publications/Performance?fy1996/index.html (last visited Sept. 9, 2000). But see infra note 196 (criticizing these statistics).

(117) See infra note 199.

(118) Legislatures have enacted revival statutes to deal with toxins that have a long latency period and affect a large number of people. These provide for a renewed cause of action, even though statutes of limitations or repose may have been in effect See Chase Sec. Corp. v. Donaldson, 325 U.S. 304 (1945) ("The Legislature may constitutionally revive a personal cause of action where the circumstances are exceptional."). Even if the legislature hasn't enacted a revival statute for a particular substance or exposure, courts can deal with long latency periods

through the discovery rule. Some courts say that the statute of limitation begins to run when the plaintiff discovers (or should have discovered) her injury. Urie v. Thompson, 337 U.S. 163, 170 (1949) ("The afflicted employee can be held to be "injured" only when the accumulated effects of the deleterious substance manifest themselves.") (quoting Associated Indem. Corp. v. Indus. Accident Comm'n, 124 Cal. App. 378, 381 (Cal. D. Ct. App. 1932)). Others say it begins to run when the plaintiff discovers both the injury and its cause.

(119) See generally Mustacchi, supra note 85 (discussing the latent period of cancer development in some individuals after a carcinogenic exposure).

(120) See, e.g., Davis v. United States Employers Council, Inc., 934 P.2d 1142, 1144 (Or. Ct. App. 1997) (worker suffered brain damage following exposure to chemicals, which could have been prevented by using air-supplied respirators).

(121) CLINTON & GORE, supra note 116, at 1. The estimated numbers are similar today. Because of the difficulty in discovering and tracking chemical exposures (e.g., many symptoms only appear years after the exposure, and it may be difficult to trace theft cause), statistics-gathering organizations admit that their numbers are often educated guesses. Id.

(122) McGarity & Shapiro, supra note 75, at 592.

(123) FREEDMAN, supra note 60, at 6.

(124) CLINTON & GORE, supra note 116, at 2.

(125) Today there are about 3000 federal and state inspectors, six million workplaces, and 90 million workers. MARK A. ROTHSTEIN & LANCE LIEBMAN, EMPLOYMENT LAW: CASES AND MATERIALS 676-77 (4th ed. 1998).

(126) See OSHA PERFORMANCE REPORT, supra note 116, at 4. "OSHA's ability to accomplish its goals in FY1996 was affected, to a significant degree, by work restrictions and budget uncertainties caused by external factors. [T]he shutdown of the Federal government and proposals to significantly reduce OSHA's budget had a great causal effect." Id.

(127) See infra note 129.

(128) ROTHSTEIN & LIEBMAN, supra note 125, at 676.

(129) One broadcast of 20/20, during a segment entitled "Give Me a Break," featured interviews with some employers and their opinions of OSHA. 20/20 (ABC television broadcast, Jan. 21, 2000). One factory owner, James Knott, said of OSHA: "[t]hey send inspectors around who invent complaints and then they would like you to pay them money. They're extortionists." Id. The host, John Stossel, remarked that "OSHA's ... big on fining companies. They claim this makes work safer, but that's hard to believe, because some of OSHA's inspectors' decisions defy common sense." Id.

(130) Serious violations may receive a penalty of up to $7,000 for each violation. 29 U.S.C. [sections] 666(b) (1994). Willful or repeated violations should be assessed not less than $5,000, but not more than $70,000, for each willful violation. Id. [sections] 666(a).

(131) The maximum period of incarceration for a conviction for workplace death is the same as the maximum period of incarceration for a misdemeanor for a common law crime. Dutzman, supra note 22, at 741.

(132) Id. at 740. See also Kirk Victor, Is the Honeymoon Over?, NAT'L J., Jan. 25, 1992, at 214, 216 ("These settlements may become a cost of doing business that will have no meaningful deterrent effect on employers.").

(133) An employer may refuse entry to OSHA inspectors and require the inspectors to get a warrant. Marshall v. Barlow's, Inc., 436 U.S. 307 (1978). The exceptions to this requirement come from Fourth Amendment search and seizure cases: consent, open view, and emergency. See v. Seattle, 387 U.S. 541 (1967) (fire code inspection).

(134) In 1988, the average penalty assessed was $1.60 for a non-serious violation and $261 for a serious violation. Dutzman, supra note 22, at 743.

(135) Id. at 746.

(136) See id. at 754-55 (advocating more strict civil and criminal sanctions against employers that endanger their employees).

(137) Id. & at 740.

(138) FREEDMAN, supra note 60, at 96.

(139) 29 U.S.C. [sections] 660(c) (1994); Reich v. Hoy Shoe Co., 32 F.3d 361,368 (8th Cir. 1994) (holding that an employer who fires an employee because he knows, suspects, or believes the employee filed an OSHA complaint violated [sections] 660(c)).

(140) 29 C.F.R. [sections] 1910.1200 (2000);

(141) R. BEN HOGAN III, ET AL., OCCUPATION SAFETY AND HEALTH ACT 3 [sections] 16.02 (2000). These include such benign products as some household cleansers. Id. [sections] 16.02.

(142) Id.

(143) Id.

(144) OSHA's authority to regulate standards comes from 29 U.S.C. [sections] 655 (1904).

(145) Indust. Union Dep't v. Am. Petroleum Inst., 448 U.S. 607, 611 (1980).

(146) Id. at 639.

(147) ROTHSTEIN & LIEBMAN, supra note 125, at 714.

(148) The Court gave as an example:

   Some risks are plainly acceptable and others are plainly unacceptable. If,
   for example, the odds are one in a billion that a person will die from
   cancer by taking a drink of chlorinated water, the risk clearly could not
   be considered significant On the other hand, if the odds are one in a
   thousand that regular inhalation of gasoline vapors that are 2% benzene
   will be fatal, a reasonable person might well consider the risk significant
   and take appropriate steps to decrease or eliminate it.

Industrial Union, 448 U.S. at 655. However, two critics did the math for this example and determined the chlorine numbers would amount to about 365 cases of cancer a year and the benzene numbers, for workers, would result in 400 cases of cancer a year, "a number that is not meaningfully different from [what] Justice Stevens found to be clearly insignificant." THOMAS MCGARITY & SIDNEY A. SHAPIRO, WORKERS AT RISK 56-57 (1993). The 118-page case itself attests to just how complicated determining what amounts of exposure to a hazardous chemical are safe and when levels become dangerous. See Industrial Union, 448 U.S. at 607.

(149) Air Contaminants, 54 Fed Reg. 2332 (Jan. 19, 1989) (codified at 29 C.F.R. 1910.1000).

(150) AFL-CIO v. OSHA, 965 F.2d 962, 971 (11th Cir. 1992).

(151) Id. at 986-87.

(152) BUREAU OF LABOR STATISTICS, News Release, supra note 26 ("The rate for 1998 was the lowest since the Bureau began reporting this information in the early 1970s.").

(153) John Stossel, 20/20, supra note 129.

   The regulators can cite specific successes, but look at the workplace A
   graph of workplace deaths does show that the number of fatal accidents has
   dropped steadily since OSHA was created, which would be impressive if you
   didn't back the graph up to look at the years before OSHA to see that the
   death rate dropped even faster without OSHA. Why?. Because individual
   workers and unions and employers are always making little safety
   adjustments, and they know local working conditions better than `experts'
   in Washington. Id.

(154) See McGarity & Shapiro, supra note 75, at 596.

(155) Id. at 597.

(156) Id.

(157) Id. at 506.

(158) Id. at 597.

(159) See CLINTON & GORE, supra note 116, at 2.

(160) Andrew D. Lowenstein et al., Employment Related Crimes, 36 AM. CRIM. L. REV. 475, 487 (1999). OSHA documented criminal prosecutions from July 1978 to September 1997.

(161) Id. at 487 n.71. The remaining actions were either terminated, had not been decided, or had not been pursued at the time of the report. Id. Another report notes that in fiscal year 1991, the Environmental Protection Agency put 72 people in jail and fined employers $14.1 million, while OSHA assessed $91.7 million in fines (about half of which it will collect) and imprisoned no one. Victor, supra note 132, at 216.

(162) Sen. Michael B. Enzi, The Safety Advancement for Employee Act, 35 HARVARD. J. ON LEGIS. 335,337-38 (1998).

(163) McGarity & Shapiro, supra note 75, at 645. In 1995, OSHA estimated that a proposed cut of 5% of the agency's budget would be "detrimental to the agency's ability to prevent 431 workplace deaths, 24,540 workplace injuries, and 32,623 cases of occupational illness." Id. at 633-34 (citing Reich Accuses House Republicans of Mounting Attack on U.S. Workers, 24 O.S.H. Rep. (BNA) 1910 (Mar. 1, 1995)).

(164) Occupational Safety and Health Act: Hearings Before the Subcomm. on Pub. Health and Safety of the Senate Comm. on Labor and Human Res., 105th Cong. 101 (1997) (statement of Nancy Lessin, Senior Staff for Strategy and Policy, Massachusetts Coalition for Occupational Safety and Health).

(165) Id. at 101, 112.

(166) Ann Foerschler, Comment, Corporate Criminal Intent: Toward a Better Understanding of Corporate Misconduct, 78 CAL. L. REV. 1287,1292 (1990).

(167) United States v. Van Schaick, 134 F. 592, 608 (C.C.S.D.N.Y. 1904).

(168) New York Cent & Hudson River KR. v. United States, 212 U.S. 481, 492-93 (1909) (citations omitted).

(169) Patrick Hamilton, Comment, Corporate Criminal Liability for Injuries and Death, 40 U. KAN. L. REV. 1091, 1098 & n.62 (1992) (noting recent cases which hold that corporations can form intent through their agents).

(170) There has been some question about whether OSHA preempts the state from bringing a criminal case (without OSHA approval) for conduct covered by OSHA standards. See, e.g., Note, Getting Away With Murder: Federal OSHA Preemption of State Criminal Prosecutions for Industrial Accidents, 101 HARV. L. REV. 5,35, 540-54 (1987); Deborah A. Ballam, The Occupational Safety and Health Act's Preemptive Effect on State Criminal Prosecutions of Employers for Workplace Deaths and Injuries, 26 AM. Bus. L.J. 1, 13-27 (1988). But see Illinois v. Chicago Magnet Corp., 534 N.E.2d 962, 965-68 (Ill. 1989) (holding that OSHA did not preempt state actions). However, a 1992 Supreme Court decision has spawned more questions about OSHA preemption of state laws. See generally Grade v. National Solid Wastes Mgmt Ass'n, 505 U.S. 88 (1992). The Gade Court held that OSHA preempts state occupational safety and health standards if the state standards regulate an issue about which a federal law has "directly, substantially, and specifically" spoken, Id. at 107. However, the Court did not decide whether OSHA preempts state criminal prosecutions. Id. One author believes that state prosecutions should not he preempted because Gade permits general laws, even when they affect the workplace, and because general criminal laws were not designed to regulate worker safety. See Amelia Jean Uelmen, Trashing State Criminal Sanctions?: OSHA Preemption Jurisprudence in Light of Gade v. National Solid Wastes Management Association, 30 AM. CRIM. L REV. 373, 409 (1993) (arguing that even under Gade, state criminal prosecutions should not be preempted by OSHA).

Although the Supreme Court has not yet clarified this issue, states continue to prosecute employers under traditional criminal statutes like homicide or manslaughter with the belief that the OSH Act does not preempt state criminal law. Andrew B. Loewenstein et al., Employment-Related Crimes, 36 AM. CRIM. L. REV. 475, 490-91 (1999).

(171) Kenneth M. Koprowicz, Corporate Criminal Liability for Workplace Hazards: A Viable Option for Enforcing Workplace Safety?, 52 BROOK. L. REV. 183, 184 (1986).

(172) People v. O'Neil, 550 N.E.2d 1090, 1109 (Ill. App. Ct. 1990) (holding convictions of murder and reckless conduct were inconsistent because they required mutually exclusive mental states).

(173) Sabine Consol., Inc. v. Texas, 816 S.W.2d 784, 784 (Tx. Crim. App. 1991).

(174) People v. Reagan, 723 N.E.2d 55, 55 (N.Y. 1999).

(175) Granite Constr. CO. v. Superior Court, 149 Cal. App. 3d 465, (Cal. 1983) (manslaughter). Other states have indicted corporations for homicide offenses, but convictions were not ultimately obtained. See, e.g., State v. Budd Metal Co., 447 A.2d 1186 (Del. 1982) (affirming dismissal of indictment for criminally negligent homicide against corporate defendant for unnecessary delay in bringing case to trial); State v. Ford Motor Co., No. 5324 (Ind. Super. Ct 1978) (corporate defendant acquitted by jury of three counts of reckless homicide).

(176) Commonwealth v. Former LP Gas CO., 610 S.W.2d 941 (Ky. 1980) (manslaughter); State v. Lehigh Valley R.R., 90 N.J.L. 372, 103A. 685 (NJ. 1917) (manslaughter); People v. Ebasco Servs., Inc., 77 Misc. 2d 784, 354 N.Y.S.2d 807 (N.Y. 1974) (criminally negligent homicide); Commonwealth v. McIlwain School Bus Lines, 423 A.2d 413 (1980) (homicide by vehicle).

(177) David Von Ebers, Note, The Application of Criminal Homicide Statutes to Work-Related Deaths: Mens Rea and Deterrence, 1986 U. ILL. L. REV. 969, 998 (arguing that state criminal laws are the best deterrent against employers' egregious conduct because penalties for homicide are directly related to the mental state of the employer, and the employers that are convicted receive actual prison sentences).

(178) For example, employers can accomplish such internalization through reduced wages, layoffs, and higher prices. See Koprowicz, supra note 171.

(179) Uelmen, supra note 170, at 379.

(180) United States v. Park, 421 U.S. 658 (1975) (holding that the president of large national food chain had both duty to seek out and remedy violations and a duty to ensure that violations did not occur).

(181) Uelmen, supra note 170, at 380.

(182) Id. at 379.

(183) Steven C. Bennett, Devolopments in the Movement Against Corporate Crime, 65 N.Y.U. L. REV. 871, 876-77 (1990) (reviewing FRANCIS T. CULLEN ET AL., CORPORATE CRIME UNDER ATTACK: THE FORD PINTO CASE AND BEYOND (1987)).

(184) Note, supra note 170, at 552 ("Through criminal prosecutions, the states retain authority over what they do best: punishing particularly egregious conduct and protecting their citizens against criminally negligent, reckless, or willful conduct.... [The prosecutions] may also help OSHA itself by bringing the agency's attention to hazards it ha[s] not sufficiently recognized.").

(185) 550 N.E.2d 1090 (Ill. App. Ct. 1990).

(186) Note, supra note 170, at 535.

(187) The state found the company 1) knew its employees were often sick from the fumes, 2) failed to inform the workers they were working with a deadly toxin, and 3) declined to provide protective safety equipment, Id. at 535 n.3. Further, most of the workers were illegal immigrants and risked losing their jobs or even getting deported if they complained. Id.

(188) Id. at 535.

(189) Koprowicz, supra note 171, at 209.

(190) Id. at 221-25.

(191) Id. at 205-06.

(192) Koprowicz describes the problem as follows:

   First, the prosecutor must determine who the responsible agents are. The
   size of the corporation and the nature of the "crime" must be taken into
   account. Logic dictates that the larger the corporation, the further
   removed its managers, officers and directors are from the workplace
   environment and knowledge of its conditions. On the other hand, in smaller
   or closely-held corporations the controlling personnel are frequently
   on-site and their knowledge of and/or acquiescence in hazardous conditions
   is more easily demonstrated. This goes to the issue of culpability; the
   easier it is to demonstrate knowledge of or proximity to hazardous
   conditions, the easier it should be to show criminal intent. Thus there is
   a paradoxical problem in prosecuting responsible officials in the largest
   corporations; supervisors and middle-level managers, who are typically
   closest to the problem, are usually in a much worse position to effect
   changes in workplace policy than their superiors since they have the least
   control over the corporation's pursestrings and its policy. On the other
   hand, policy-making corporate officers, who may never have visited a
   particular worksite, cannot in fairness be prosecuted for plant-site
   catastrophes.

Id. at 223-24 (citations omitted).

(193) Maakestad & Helm, supra note 27, at 42. The authors also mention investigatory and evidentiary constraint, but they note that the "most significant limiting factor" prosecutors face in determining whether to pursue a criminal case against an employer is "the level of resources available" to prosecutors. Id. at 43.

(194) Matheny, supra note 23, at 472.

(195) Id. at 471.

(196) Id. at 472.

(197) Probably the most famous industrial accident caused by hazardous chemicals is the explosion at the Union Carbide plant in Bhopal, India. In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India, 634 F. Supp. 842 (S.D.N.Y. 1984), aff'd, 809 F.2d 195 (2d Cir. 1987), cert. denied, 484 U.S. 871 (1987). Other industrial chemical accidents that have drawn significant attention include Commonwealth v. Godin, 371 N.E.2d 438 (Mass. 1977), cert. denied, 436 U.S. 917 (1978) (explosion in fireworks manufacturing plant killed three employees); People v. Warner-Lambert Co., 414 N.E.2d 660 (N.Y. 1980), cert. denied, 450 U.S. 1031 (1981) (explosion at chewing gum factory killed six workers).

On facts somewhat similar to Davis, however, three corporate agents were convicted of homicide at the trial court level. People v. O'Neil, 550 N.E.2d 1090, 1092 (Ill. App. Ct. 1990). In O'Neil, a Polish immigrant employee was killed after being exposed to cyanide. Koprowicz, supra note 171, at 218-19. The corporate agents deliberately concealed the dangerous nature of the work from the employee and his co-workers and knowingly failed to provide proper safety equipment Id. at 219. The case was reversed and remanded on appeal, because the convictions required mutually exclusive mental states. 550 N.E.2d 1090, 1101 (Ill. App. Ct. 1990).

(198) See Jean Macchiaroli Eggan, Toxic Reproductive and Genetic Hazards in the Workplace: Challenging the Myths of the Tort and Workers' Compensation Systems, 60 FORDHAM L. REV. 843, 863-64 (1992) (noting that toxic exposure in the form of a traumatic workplace event followed by immediate onset of disease is the "rare exception").

(199) See Jack W. Snyder et al., Injury and Causation on Trial: The Phenomenon of "Multiple Chemical Sensitivities," 36 WIDENER L. SYMP. J. 97 (1997).

(200) See generally FREEDMAN, supra note 60, at ch. 7 (1990); BOSTON & MADDEN, supra note 101.

(201) See Sterling v. Velsicol Chem. Corp., 855 F.2d 1188,1206 (6th Cir. 1988).

(202) See Werlein v. United States, 746 F. Supp. 887, 901 (D. Minn 1990).

(203) See Ayers v. Township of Jackson, 525 A.2d 287, 312 (N.J. 1987).

(204) See Sterling, 855 F.2d at 1205.

(205) See BOSTON & MADDEN, supra note 200, at 442.

(206) See, e.g., In re All Asbestos Cases, 603 F. Supp 599, 605 (D. Haw. 1984) (asbestos); Dresser Indus., Inc. v. Lee, 880 S.W.2d 750, 751 (Tex. 1993) (silica). But see Unique Equip. Co., Inc. v. TRW Vehicle Safety Sys., Inc., 3 P.3d 970, 977 (Ariz. Ct. App. 1999) (holding that products liability statute did not create an exception to the workers' compensation exclusive remedy).

(207) See, e.g., Columbus v. Biggio, 76 F. Supp.2d 43, 57 (D. Mass. 1999) (holding that worker has tort remedy against co-employee for conduct that was not within course of employment); Venezio v. Ryder Truck Rental, Inc., 261 A.D.2d 700, 702 (N.Y. App. Div. 1999) (holding that operator of truck that hit employee was not employed by same company as employee, so employee had personal injury action against truck's owner). But see Schump v. Firestone Tire and Rubber Co., 541 N.E.2d 1040, 1045 (Ohio 1989) (holding that employee injured by a tire manufactured by employer while driving employer's truck could not sue employer under dual capacity doctrine because tire was not furnished to employee as member of consuming public).

(208) The dual capacity doctrine "makes an employer--who is normally shielded from tort liability by workers' compensation laws--liable in tort to an employee if the employer and employee stand in a secondary relationship that confers independent obligations on the employer." BLACK'S LAW DICTIONARY, supra note 33, at 514. See Guy v. Arthur H. Thomas Co., 378 N.E.2d 488, 488 (Ohio 1978) (holding that employee of hospital injured on job and later negligently treated at same hospital had tort remedy against hospital in its treatment capacity, not as her employer); but see Barrett v. Rodgers, 562 N.E.2d 480, 482 (Mass. 1990) (holding that employee may recover under workers' compensation, but she has no cause of action against employer in tort for injuries caused by employer's dog while employee was in scope of employment and that employer was single legal entity).

See generally Kim R. Kleppel, Note, Dual Capacity Liability and Co-Employee Company Physicians: Undermining the Integrity of the Workers' Compensation System, 12 CARDOZO L. REV. 1447 (1991) (explaining dual capacity liability).

(209) See, e.g., Virgil v. Walker, 572 P.2d 314 (Or. 1977) (even though provoked, employer that hit employee was civilly liable for intentional tort); Perry v. Beverage, 209 P. 1102 (Wash. 1922) (holding that employee that was struck with a water pitcher by his employer had tort claim against the employer under deliberate intention exception to workers' compensation exclusive remedy). But see Peterick v. State, 589 P.2d 250, 252 (Wash. 1977), overruled on other grounds by Stenberg v. Pacific Power & Light Co., 709 P.2d 795 (Wash. 1985) (holding that employer's intentional evasion and violation of safety standards did not bring employee's action outside of the workers' compensation exclusive remedy).

(210) The employee more often will he in a situation where she is dealing with her employer rather than with a defective product or a third party. Additionally, with either third party claims or products liability claims, there are problems identifying the defendant that do not exist when the employer is at fault.

(211) See Matheny, supra note 23.

(212) Gulden v. Crown Zellerbach Corp., 890 F.2d 195, 196 (9th Cir. 1988).

(213) Id.

(214) Id. at 196.

(215) Id. at 197.

(216) Lusk v. Monaco Motor Homes, Inc., 775 P.2d 891 (Or. Ct. App. 1989).

(217) Id. at 892.

(218) Id.

(219) Id. at 895.

(220) For a discussion of some of the difficulties facing the toxic tort plaintiff, see Jeffrey A. Thaler, Evaluating and Building the Plaintiff's Toxic Tort Case From a Trial Lawyer's Perspective, 5 MAINE BAR J. 284 (1990); Mark L. Austrian & Kevin B. Bedell, Toxic Torts and the Courtroom of the Future, 41 FOR THE DEFENSE 27 (1999).

(221) Generic causation refers to whether the exposure could cause the disease in question. This is usually proven using epidemiological studies. See Snyder et al., supra note 199, at 136. Individual causation refers to whether the exposure caused the particular plaintiffs disease. Id. at 140.

(222) Since the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), proving causation in toxic exposure cases has become more difficult Daubert held that scientific evidence need not be generally accepted to he admissible under the Federal Rules of Evidence, and the Rules give the trial judge the job of assuring that the foundation for an expert's testimony is reliable and relevant to the case. However, subsequent interpretations of the case have made the use of experts and scientific information in civil suits very difficult. Courts often require that the testifying expert have a certain level of credentials and that his scientific opinions be widely accepted in the medical community, capable of replication, subjected to peer review, and often that they be based on expensive and difficult epidemiological studies. See, e.g., Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) (Animal studies, in vitro studies, and clinical experience are often not enough.). See Lynch v. Merrell-Nat'l Lab., 830 F.2d 1190 (1st Cir. 1987) (In vivo and in vitro animal studies cannot prove causation in humans without any confirming epidemiological data.). Causation after Daubert continues to be widely discussed in the legal community. See, e.g., Michael B. Kent, Jr., Daubert, Doctors and Differential Diagnosis: Treating Medical Causation Testimony as Evidence, 66 DEF. COUNS. J. 525 (1999).

(223) In many of the cases mentioned in this Comment, the employer was aware that his employees were getting sick. For example, Mr. Davis suffered "regular and increasingly severe symptoms of a respiratory nature, headaches, eye irritation, lightheadedness, and memory loss." Davis v. United States Employers Council, Inc., 934 P.2d 1142, 1144 (Or. Ct. App. 1997). Several employees in O'Neil had reported dizziness, nausea, headaches, and bouts of vomiting. People v. O'Neil, 550 N.E. 1090, 1098 (Ind. Ct. App. 1990). In Birklid, workers "experienced dermatitis, rashes, nausea, headaches, and dizziness [and some] passed out on the job." Birklid v. Boeing Co., 904 P.2d 278, 281 (Wash 1995).

(224) See, e.g., Davis and O'Neil. When chemicals are regularly used at work or when the employee's doctor has notified the employer that the employee will become very sick if current conditions continue, the employer has knowledge. In Davis, the Court of Appeals even said that the employer knew some employees were "certain to suffer severe injury." 934 P.2d at 1146. MSDS sheets may also make an employer aware of the hazards of certain levels of a chemical or certain lengths of exposure. Violation of an OSHA standard for a particular chemical should also constitute substantial certainty that serious injury could occur.

(225) Jones v. VIP Dev., Inc., 472 N.E.2d 1046 (Ohio 1984).

(226) Beauchamp v. Dow Chem. Co., 398 N.W.2d 882 (Mich. 1986); O'Brien v. Ottawa Silica Co., 656 F. Supp. 610 (E.D. Mich. 1967).

(227) Mandolidis v. Elkins Indus., Inc., 246 S.E.2d 907 (W.Va. 1978).

(228) Bazley v. Tortorich, 397 So. 2d 475 (La. 1981).

(229) Woodson v. Rowland, 407 S.E.2d 222 (N.C. 1991).

(230) See generally Higgins, supra note 37; Davidson, supra note 29.

(231) See generally Jones v. VIP Dev., Inc., 472 N.E.2d 1046 (Ohio 1984); Beauchamp, 398 N.W.2d at 882; O'Brien, 656 F. Supp. at 610; Mandolidis, 246 S.E.2d at 907; Bazley, 397 So. 2d at 475; Woodson, 407 S.E.2d at 222.

(232) Melissa F. Ross, Ripples in Treacherous Waters: A Consideration of the Effects of North Carolina's Intentional Tort Exception to Workers' Compensation, 31 WAKE FOREST L. REV. 513 (1996) (documenting and considering North Carolina's experience).

(233) Id. at 554.

MICHELLE GORTON, Current Materials Editor, Environmental Law, 1999-2000; J.D. and Certificate in Environmental and Natural Resources Law expected 2001, Northwestern School of Law of Lewis & Clark College; B.A. 1996 Reed College. Many thanks to Professor Henry Drummonds for his comments and enthusiasm and to Alexander Garzon for his keen mind and red pen.