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IN NYC, Some Construction Worker Deaths Loom in Anonymity

How does a family feel when their mother or father is killed in a construction site accident but New York City agencies fail to recognize the death in their statistics? Unfortunately, several families in the New York area are currently wrestling with this very painful irony, according to an article recently published in Crains magazine. The article charges that construction site deaths that were actually probed by our federal government for worksite safety violations failed to register on the city's tally of construction site deaths last year. Six different construction site deaths to workers out of a total of 17 were not included in the City ledger.

What is the feckless excuse for this statistical gimmick? The Department of Buildings, the agency entrusted to regulate construction work in our city, apparently only tracks deaths where there is a known violation of the city's construction code. More specifically, they only regulate fatalities that pose a threat to the public and not solely to workers employed at the construction site. Try finding the logic in that explanation. There is none; at least there is no explanation that makes sense, particularly to a grieving widow. Apparently, if it doesn't violate the city code and pose a threat to non-construction workers then it doesn't register as a construction site death with our Department of Buildings. OSHA, on the other hand, has a record of 17 construction workers who were killed last year in our city. OSHA issued violations to the employers for worksite safety failures in all of the 6 fatal construction site accidents where the Department of Buildings failed to even record the accident as a construction site death. The employers received hefty fines from OSHA but in New York City these deaths did not merit even a statistical note.

Think about how some of these families must feel. They senselessly lose a loved one who did nothing more than show up to work one day and then they are left with the cold, hard reaction from our city. The death of a person they love will loom in anonymity, at least according to the Department of Buildings. Like it didn't happen.

Of course, this statistical gamesmanship provides an opportunity for some folks to disingenuously argue that worksite safety has vastly improved. After all, they have the ability to compare OSHA records from a prior year where there were a considerable number of fatal construction accidents with the present 2015 statistics released by the Department of Buildings, which is obviously a flawed accounting. You can make numbers say whatever you want them to, on occasion, and this is proof.

The Department of Buildings' approach also calls into question whether it promotes repeat offenders continuing to jeopardize workers and their safety. Think about it. The Department of Buildings often fails to even investigate a construction accident unless it fits squarely within their criteria. Death caused by workplace safety mistakes do not fit within the narrow Department of Building guidelines. SO OSHA will investigate the accident and record it statistically but the City will not. Practically speaking, if a worker who was not provided appropriate fall protection slips and falls down an elevator shaft and dies - that death is not counted statistically and may not even be investigated by the DOB. The press covers the accident, the Feds investigate the accident, worksite safety violations are identified and heavy fines are levied but with the DOB it remains in the statistical abyss.

How can the DOB regulate what they don't see? Contractors who imperil workers by forcing them to work under dangerous conditions without appropriate equipment and safety devices may frequently evade scrutiny from the Department of Buildings because of their overly mechanical approach to what cases they investigate and what statistics they deem worthy of recording. This allows the same bad actors to repeatedly receive permits for jobs despite flaunting fundamental safety rules and regulations. You can't enforce what you don't see.

We have been screaming about contractors, owners and developers who are comfortable placing their profits over people for a long time. Sadly, it seems that one of the agencies complicit in this may be the very agency we trust to regulate construction work in New York City. We need to do better and this approach needs to change.

Block O'Toole & Murphy is a law firm committed to fighting on behalf of both injured construction workers and their families. The attorneys have recovered nearly $1 billion in verdicts and settlements for their clients.

You may learn more about the firm or receive a free consultation by dialing 212.736-5300.