Construction workers built New York into the great city and state that it has become. But it is apparent that non-union and Hispanic construction workers are continuously exposed to unspeakable job-related perils, according to the latest damning Deadly Skyline report by the New York Committee for Occupational Safety & Health (NYCOSH).
In 2017, 69 construction workers in New York State were killed in work accidents, and the construction fatality rate in New York State has increased 39% in the past five years.
The public outcry for these alarming statistics is muted. Why? The answer is somewhat elusive and confounding. What would the reaction be if these figures applied to a different, but certainly dangerous, profession like members of the police department or fire department? Why is it that there are interest groups clamoring for a weakening of jobsite safety laws as construction in New York appears to be more and more prevalent but also equally as dangerous? And what can be done to better protect our construction workers?
The Need for Increased Worksite Safety Fines
Fines levied against construction companies are one of the ways that we as a society seek to obtain compliance from companies that don’t take workplace safety seriously. But there is a fundamental flaw with how fines have been assessed, and sometimes the amounts seem difficult to equate with justice and fair play. Ask yourself this question: if a construction company which makes millions of dollars a year is only fined $21,644 for an avoidable construction fatality, does the fine in any way deter future bad conduct? A human life was lost because of shoddy work safety at a jobsite and that was the fine? Perhaps it impacts some companies, but for larger companies with vast business interests, such fines are a very small blip on their radar.
Unfortunately, $21,644 was the average fine given by the Occupational Safety and Health Association (OSHA) for New York construction fatalities in 2017. To increase the punishment for negligent safety behavior, the maximum fine that OSHA is allowed to issue was raised 78 percent in 2016. So far, however, this does not appear to have impacted the actual fines levied by OSHA. In numerous cases identified in the report, fines significantly less than the maximum were imposed following a construction fatality. Such small fines are clearly not effective deterrents.
NYCOSH recommends the passage of Carlos’ Law, which would further raise the maximum potential fines imposed on bad actor construction developers and contractors whose disregard for safety protocol leads to a worker being injured or killed. This would be a significant step in the right direction, if OSHA is willing to issue fines at or near the maximum amounts.
Personal injury lawsuits also hold employers accountable and allow injured workers to recover compensation for medical bills and lost wages after a construction accident. In New York, Labor Law 240(1), also known as the Scaffold Law, protects construction workers by allowing them or their surviving family members to sue if they are injured or killed by a gravity-related hazard, such as a fall or falling object.
Due to the rate at which gravity-related hazards claim the lives of construction workers, the Scaffold Law is arguably the most important legal protection New York construction workers have. The preservation and strengthening of this longstanding worker safety law is essential in order to punish companies who put profit over safety. Otherwise, negligent contractors, developers and property owners can afford to keep doing ‘business as usual.’
Falls: The Number One Cause of Construction Worker Fatalities
Over the past 10 years, falls have killed 187 construction workers in New York State, and 78 in New York City. In both cases, this represents nearly 50% of all construction fatalities over that time. Disturbingly, fatal falls killed 887 workers nationwide in 2017, the highest number of such fatalities ever recorded.
It should come as no surprise that fall protection violations were the most commonly issued citation given out by OSHA in 2017. This too is an ongoing trend, as fall protection violations routinely top the list of the most frequent citations issued by OSHA. Because of how common such safety violations are, and how costly such hazards can be for the workers involved, NYCOSH recommends “additional consequences for employers who violate this standard.”
Viewed through this lens, it is difficult to understand why, besides the company profit margin, some groups continue to push for a weakening of the Scaffold Law, if not it’s abolition altogether. The Scaffold Law requires employers to protect workers against the gravity-related hazards which routinely claim so many lives. When you consider that the vast majority of falling accidents are preventable, yet falls remain the number one killer of construction workers, more needs to be done to hold employers who continue to expose their workers to these hazards accountable. The Scaffold Law should be preserved and strengthened if we want to keep construction workers safe.
Hispanic and Latino Workers Face Increased Risk of Death
One of the most disturbing trends identified in the report is the increased rate that Hispanic and Latino workers suffer fatal accidents on New York construction sites. In 2017, 17% of New York worker fatalities were Hispanic or Latino, despite the fact that these workers only make up an estimated 10% of the work force. Since 2013, there has been a 10.5% increase in Hispanic and Latino worker fatalities across New York.
Why is this happening? The answer is complex and involves many factors. Sometimes a language barrier may play a role in the increased risk a Latino construction worker may face. A fear of deportation among undocumented workers may leave workers feeling helpless when they are required to perform their job under unsafe conditions. Also, workers may feel like if they complain about safety conditions they will be replaced by someone willing to assume the risks. A lack of financial security increases the likelihood that Latino workers will be exposed to greater work-related dangers. Finally, Latino workers may not receive the same level of training when it comes to worker safety. This is by no means intended to be an exhaustive list — there are certainly other factors at play. Taken together, these issues combine to make it significantly harder for Hispanic construction workers to do their job safely compared to their domestic counterparts.
Language barriers pose significant challenges in the communication of critical safety instructions between supervisors and employees. Just because a worker knows the task assigned to him, does not mean he understood all of the direction required for him to do the job safely. Sometimes, this gap in understanding is all it takes to cause an otherwise preventable construction accident.
One may say that translated training materials can help to bridge the gap created by language barriers. Consider, however, that such general overviews may not be able to address any unique problems posed by an assigned task. English-speaking workers have the opportunity to ask follow-up questions to clarify their understanding of how to do a job safely. If Hispanic workers are hesitant to ask potentially important work-safety questions because of language barriers, they could miss out on critical information which could prevent an accident.
The other factor that is more nefarious is the fear of employer retaliation if undocumented workers ask too many questions or bring attention to the fact that they don’t understand how to do something. While it is not legal to fire or threaten to report somebody’s immigration status just for raising workplace safety issues, unfortunately unethical employers may attempt to do just that. Unfortunately, NYCOSH reports that immigrant workers are generally afraid to report legitimate violations for fear of being deported, even though that is not legally supposed to happen.
Questions About Safety on Union vs. Non-Union Work Sites
In 2017, NYCOSH reports that non-union workers made up 92.9% and 86.7% of the construction fatalities that NYCOSH studied in New York City and State, respectively.
NYCOSH notes in their report that non-union contractors “have little oversight outside of government regulatory agencies.” This is potentially problematic due to the declining number of OSHA inspections in recent years, a trend which is driven by the agency being chronically underfunded.
To gain clarity on this murky issue, the New York City Council passed Local Law 78, which greatly expands on the information that must be reported following construction accidents and fatalities. The law just went into effect in 2017, and it is possible that future data will shed more light on this issue.
Regardless of union status, one thing that could make all construction work safer would be a statewide-equivalent of Local Law 196. Recently passed in New York City, Local Law 196 will require construction workers to receive additional OSHA training either by May 2019 or September 2020. Currently, this training will only be required for workers inside the city. Making this a requirement throughout New York State would give non-union members essential safety training that could help to finally reduce construction fatalities across New York.
Safer Construction Sites Are Possible, If Employers Really Want Them
The construction fatality rate in New York City has been falling, and there is no reason the same can’t be accomplished across the state. To reach that goal, workers need to be trained to do their jobs safely. Creating a statewide law similar to NYC’s Local Law 196 would be a step in the right direction.
When employers fail to take safety seriously and workers are injured or killed as a result, the financial repercussions need to be severe. The Scaffold Law allows injured workers to recover compensation for construction accidents which never should have happened in the first place and must be preserved. Companies that neglect worker safety need to be shown that there is a consequence to their actions, and that it never pays to try and put profit ahead of workplace safety.
If you or a loved one have been seriously injured or killed in a construction accident that could have been avoided by proper safety training or equipment, you may be able to file a lawsuit to recover the compensation that you deserve. Simply call 212-736-5300 to receive a free legal consultation.