Construction Safety: Lessons From 2016 and Remedies in 2017

by Tarter Krinsky & Drogin LLP

While each year there are reports and statistics regarding the annual number of construction accidents and fatalities in New York City, 2016 will likely be remembered as the year when a construction accident could, and did, lead to criminal charges and convictions of construction companies and individual supervisors.

In June 2016, general contractor Harco Construction was found guilty of second-degree manslaughter and criminally negligent homicide in connection with the death of a worker on one of its construction sites. On December 15, 2016, the construction foreman for Sky Materials who was hired to manage the construction of that project was sentenced to one to three years in prison for his role in the death of the construction worker. His conviction had been based on the jury's finding that he ignored warnings about safety issues at the site.

While construction accidents have always existed, they have been on the rise in recent years and many of the victim workers are undocumented immigrants. Risks have also historically been associated with nonunion employers, lack of training and language barriers. The Occupational Safety and Health Administration (OSHA) and other government agencies have started to vigorously pursue cases in which an owner or supervisor is suspected of cutting corners and putting workers' lives at risk. As seen in the Harco case, New York courts have responded to construction site issues by using the state's existing general criminal laws to hold owners/employers responsible.

Many companies have very detailed procedures and policies for what happens when there is an accident, including who should talk to OSHA, the Department of Buildings, the press or the insurance company, but surprisingly, the procedures for avoiding accidents are not always robust or if they are, the manuals and protocols are not routinely followed.

Employees at all levels at individual companies need to be supportive, take active steps and set examples for following safety procedures by doing the following:

  • Confirmation of acknowledgement and review of procedures should be reinforced on a recurring basis.
  • Policies of zero tolerance concerning drug or alcohol use.
  • Policies of zero tolerance lack of training or improper payments to government officials must be enforced on a company-wide basis.
  • While contractors should avoid any discriminatory practices, it is important that the workers on site understand and speak English to ensure that all workers are able to effectively communicate with one another.
  • There should be an environment of safety goals and even a system of awards within the company for safe, accident free sites.
  • Those who enforce the procedures or call out violations should be rewarded and protected, rather than punished.

At the national level, OSHA enforcement must be an effective deterrent to unsafe conditions, which requires more inspectors, improved staff training and hiring staff who can speak different languages. Given the limited number of OSHA inspectors and low fines for violators, many employers and owners do not take OSHA violations seriously, which may led to more accidents. If we increase enforcement, we can avoid accidents.

The new year started out with protests outside City Hall in regards to a proposed package of safety bills aimed to address construction accidents and training. Last week it was reported that the controversial bill likely has necessary City Council votes to pass. The most contentious piece of the proposed legislation is the requirement for contractors to hire workers that have gone through an apprenticeship program, which some opponents argue is merely a way to enforce union labor while the city is seeing an increasing uptick in non-union labor projects and open shop contractors.

We will continue to monitor developments in this area as we move toward safer construction sites and the avoidance of accidents for all involved.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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