What's Odd about this Picture?
Friday, September 6, 2013 | 0
Delaine Davis has been sentenced to four to six years in Wyoming Women's Center jail. Her crime was workers' compensation fraud of $11,072. She knowingly collected workers' comp benefits while being gainfully employed in another job. In addition to her jail term, she was ordered by Judge Marvin L. Tyler to pay $11,072 in restitution to the state of Wyoming.
Is it just us, or does that penalty seem a little harsh? Perhaps there are some extenuating circumstances that contributed to the sentence that weren't revealed in news reports. Certainly, we would agree that fraud is bad and should be punished we have no argument with that. Apparently, Ms. Davis willfully violated the law. She should indeed be required to pay restitution and suffer some punishment for her crime, but four to six years seems pretty steep to us, particularly in contrast to the "up to six month" jail penalty for a willful violation resulting in a worker fatality under OSHA's general duty clause:
(e) Any employer who willfully violates any standard, rule, or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both; except that if the conviction is for a violation committed after a first conviction of such person, punishment shall be by a fine of not more than $20,000 or by imprisonment for not more than one year, or by both.
In looking further into the data, we turned up this SHRM article: Report Finds OSHA Resources Lacking, Penalties Weak, which notes that:
"The median penalty for a fatality investigation conducted in FY 2012 was $5,175 for federal OSHA, and the median current penalty for the state OSHA plans combined was $4,200, according to OSHA enforcement data."
Criminal enforcement under the OSH Act has been and remains exceedingly rare, the report said.
"Only 84 cases have been prosecuted since 1970, with defendants serving a total of 89 months in prison. During this time there were more than 390,000 workplace fatalities, according to Labor Department data. In FY 2012, 13 cases were referred for possible criminal prosecution."
Fraud is serious business and we all pay the price. Wyoming has chosen to wield a pretty big stick in doling out punishment, noting that, "Workers' compensation is intended to help workers injured on the job. We won't stand for people who defraud and abuse this important program."
OK. But when it comes to protecting workers and keeping them safe, the state takes less of a hard line and more of a courtesy approach to safety, generally favoring carrots to penalties. This hasn't produced great results: While there have been some small improvements of late, Wyoming has a pretty ignominious record when it comes to worker fatalities. Except for the most recent year, Wyoming has consistently ranked as the worst or the next-to-the-worst state for worker fatalities in the past decade.
Julie Ferguson is a consultant for Lynch Ryan & Associates, a Massachusetts-based employer consulting firm. This column was reprinted with the firm's permission from its Workers' Comp Insider blog.
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