The Department of Labor & Industries (L&I) is responsible for enforcing workplace safety rules under the Washington Industrial Safety & Health Act (WISHA). It is authorized to issue citations for civil penalties in the four following categories:
• De-minimus citations – The violation has no direct or immediate relationship to safety or health.
• General citations – The violation does not pose a risk of serious bodily harm.
• Serious citations – The employer knew or should have known of the hazardous conduct or condition, and that there is a “substantial probability that death or serious physical harm could result” from the code violation.
• Willful citations – There was some voluntary action performed with intentional disregard of or plain indifference to safety regulations.
WISHA-related RCWs also allow for L&I to issue misdemeanor criminal sanctions for the following:
• Providing unauthorized advance notice of an inspection;
• Knowingly making false statements in connection to an inspection or citation;
• Disregarding an order of immediate restraint; or
• Intentionally damaging or destroying a necessary safety device.
A standard “worst case scenario” for Washington employers is the case of Bradley Hogue. In 2014, Hogue was killed in a bark blower, resulting in misdemeanor charges for his employer, Pacific Topsoils. The misdemeanor charge was filed against the company itself and stemmed from “willfully and knowingly” violating safety standards under RCW 49.17.190 (WISHA: Violations-Criminal Penalties). The Department issued the citations and referred the matter to the King County Prosecutor. The result was that the company pled guilty and paid $100,000.00 in criminal penalties and $100,000.00 in civil penalties for the underlying safety violations.
A recent case, however, has marked a stark shift in how egregious safety violations may result in personal criminal charges. In 2016, Harold Felton was killed when a trench in which he was working collapsed. L&I cited his employer, Alki Construction, LLC, for five serious violations and one willful violation, with a total civil penalty of $51,500.00. More important that these WISHA violations, however, is that King County filed a criminal charge against the individual, Phillip Numrich. Numrich was the owner of Alki Construction and at the time of Felton’s death was the person onsite responsible for overseeing the work, and he was charged with the felony criminal charge of manslaughter in the second degree in connection to this incident. This charge did not arise from the WISHA-related RCWs, but rather from RCW 9A.32.070 (Homicide: Manslaughter in the second degree).
This marks the first time an employer has faced felony charges in Washington state for a workplace fatality. And because Numrich was charged not in his capacity as the employer, but rather in his capacity as the “competent person onsite,” this also opens the door to potential criminal liability for other “competent person” employees on a worksite if there is a willful violation.
While the outcome of Numrich’s case is still unknown, Washington employers need to understand the significance of his felony charge. As such, it is more important than ever for employers to be diligent and proactive in their safety programs and consider seeking legal advice whenever faced with any open investigation.
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Karen Galipeau Forner is the founder and managing member of K-Solutions Law in Bellevue, Washington. Karen represents employers in the areas of workplace safety, workers’ compensation, administrative appeals, and employment law. She is a frequent presenter at continuing legal education seminars and to employer groups. Karen has over 25 years’ experience defending and resolving a wide range of workers’ compensation, WISHA, and employment law matters. Prior to starting K-Solutions Law, Karen worked as senior attorney at a law firm in Seattle and for the Washington State Attorney General’s Office. She was the Program Advisor for the Industrial Insurance and Washington Industrial Safety and Health Act (WISHA) Discrimination Programs for more than 10 years and the Program Advisor for the Workers’ Compensation Sren also litigated complex WISHA, Industrial Insurance, Third Party, and Crime Victims Compensation Act cases. She recently served on the Washington State Bar Association Character and Fitness Board.
