Perhaps the most poignant, and horrifying, story to emerge from Supreme Court nominee Neil Gorsuch’s hearing this week involved the court case of Alphonse Maddin (please, let’s not call him the “frozen trucker”).
Maddin waited for hours, in temperatures far below zero, while his employer promised but failed to promptly send a mechanic to repair his broken truck. Losing feeling in his torso and limbs, Maddin reached out for help. His employer told him not to leave the cargo: Maddin was instructed either to remain in place with the tractor-trailer, or to drive the tractor-trailer, despite the trailer’s broken brakes. Fearing for his life, Maddin detached the trailer temporarily, drove someplace nearby to warm up, and then returned and completed the job. For this, he was fired.
Ultimately, the court ordered the employer to reinstate Maddin and pay lost wages. The majority’s decision was based on a law that prohibits employers from firing a worker who refuses to operate a vehicle that presents a serious safety risk to the employee or the public. Unlike his fellow judges, Gorsuch found that the firing was legal, based on a narrow and flawed reading of the law.
There’s a lot to say about Gorsuch’s dissent: what it shows of his judicial philosophy, the limits of his life experience, his lack of compassion. He has already had to answer to Senator Franken and one day, he may have to answer to a higher power. Until then, let’s hope the Democrats can successfully block his nomination.
But there is a lot more to say about this case.
Maddin was placed in a grotesque dilemma: lose your life or lose your job. It sounds crazy when you hear it. But this lose-lose situation is more common than people realize.
There were 4,836 workplace fatalities in the United States in 2015. That’s over 90 per week nationally. Or, put differently, an average of almost 100 workplace deaths per state over the course of the year. Heavy and tractor-trailer drivers suffered the most fatal work injuries of any occupation, although several other industries, like construction, were also strongly represented. Latino workers were disproportionately represented, with the highest fatality rate of all groups surveyed.
It’s important to note that these numbers represent workplace fatalities. These numbers do not include grievous injuries or serious illnesses; they also don’t include near misses like Maddin’s.
When workers speak up, all too often they face reprisals or termination. Three years ago, my former office handled a case involving a McDonald’s worker who told his boss about a gas leak. She told him to keep quiet and keep working. He called fire department, which found a dangerous leak and shut down the restaurant immediately. You know where this is heading. The worker was fired that day, right in front of the first responders.
Alphonse Maddin and the McDonalds worker averted tragedy not only for themselves. If Maddin had driven off with the broken-brakes trailer, he could have endangered other drivers on the interstate. If the McDonald’s worker had quietly returned to the fryer, who knows what would have become of the restaurant’s customers and other employees? Worker safety and public safety are inextricably intertwined.
In fact, when you really examine the facts of the Maddin decision, the very premise of the case becomes surrealistic. Maddin’s employer repeatedly appealed a decision requiring reinstatement and payment of lost wages. In a just world, their sanction would be far greater. Consider this: in many states, you can be arrested if you lock your pet dog in a car in dangerously cold weather. But if an employer makes a human being remain in a sub-zero broken parked vehicle for hours? The only penalty is that the company has to pay some money and re-hire the man. This employer should consider itself lucky to face only civil enforcement.
After all, prosecutors are increasingly concluding that certain workplace fatalities are not just unfortunate tragedies. While many companies are careful about workplace safety, and while genuine accidents do occur, too many workplace deaths are utterly predictable, the result of willful behavior, and deserve criminal charges. In addition to prominent federal cases, like the prosecution of Donald Blankenship after the Massey Upper Big Branch mine explosion, local prosecutors are also taking up the mantle. The Los Angeles District Attorney prosecuted Bumble Bee Foods LLC for a workplace fatality. The Manhattan District Attorney’s Office last year obtained the conviction of a foreman who kept employees working in an illegal trench, despite repeated warnings on the day of the collapse that killed a worker. And the Suffolk County District Attorney’s Office, in Boston, last month indicted employers in relation to two deaths in another trench collapse.
The facts of these cases, and of Maddin’s case, speak to some fundamental truths in our society: the extreme power imbalance between workers and employers; the poverty and economic desperation that can lead people to continue working, even in risky situations.
So Maddin is not just “the frozen trucker” and not just a law school fact pattern. He is a human being who faced an all-too-common cruel dilemma emblematic of the reckless disregard too many employers have for their workers’ lives and humanity. He represents thousands who didn’t make it and thousands who did make it but are now maimed and ill. And he represents countless other workers who refused to do something dangerous, and risked their own livelihoods to protect themselves and sometimes to protect others, too.
Neil Gorsuch understands none of this.