Manhattan NY District Attorney Cyrus Vance Jr. has called on New York State to raise the maximum penalty for corporate conduct leading to death or injury of a worker. Vance used the anniversary of the death of Carlos Moncayo who was killed when an unsecured 13-foot-deep trench collapsed in the city’s meatpacking district in April 2015. According to Vance’s statement:
“Despite the landmark criminal convictions of the people and corporations responsible for Mr. Moncayo’s death, New York State law still does not meaningfully deter companies from putting profits and deadlines ahead of their workers’ safety. For their role in causing Mr. Moncayo’s death, contractor Harco Construction and subcontractor Sky Materials were each sentenced to pay a $10,000 fine—the maximum penalty for any company convicted of a felony in New York State….“A $10,000 fine is but a rounding error on a multi-million dollar building contract. To honor Mr. Moncayo and protect workers like him, New York State should raise the maximum penalty for corporate conduct leading to death or injury.”
Harco Construction was found guilty of manslaughter last year. The company was also found guilty of criminally negligent homicide and three of four counts of reckless endangerment. Montoyo was a 22 year old immigrant from Ecuador.
A $10,000 fine is but a rounding error on a multi-million dollar building contract. — Cyrus Vance Jr.
An interesting side-note. The Judge originally decided not to make Harco pay the entire $30,000 fine if it produced print and TV PSAs in English and Spanish designed to promote worksite safety. Labor officials called the sentencing a “travesty,” but Harco, maintaining its innocence, even refused to to produce the commercials. Last year, Harco’s license was revoked by the city’s Buildings Department and a judge later ordered Harco Construction to pay the maximum fine of $10,000.
OSHA fined the company $140,000 for two willful violations of its trenching and excavation standards. OSHA requires all trenches deep than 5 feet to be shored, sloped or otherwise protected from collapse. Between 2011 and 2015, according to the Bureau of Labor Statistics, 94 American workers were killed in trench collapses. In 2016, 23 U.S. workers died and 12 were injured in collapses. A cubic yard of soil weighs up to 3000 pounds, the weight of a mid-sized automobile. A trench collapse may contain three to five cubic yards of soil.
I’m glad to see the City of Baltimore finally acting to revoke Harco’s license. This is way ahead of Boston, where the Atlantic Drain Company has kept its license even their November 2016 trench collapse that killed Kevin Mattocks and Robert Higgins. Atlantic Drain not only accumulated about $100,000 in OSHA fines over the past few years, but it also had avoided paying them. As I understand it, despite a history of willful OSHA violations and unpaid fines, all of which were publicly reported on fed OSHA’s website, the City of Boston continued to issue permits to the company to conduct trench work throughout the city, and the company’s owner continued to hold a construction supervisor license issued by the Commonwealth of Massachusetts.
Because it is doubtful any meaningful changes to increase federal OSHA criminal penalties will occur as long as Trump is president, and he’s signaled his intent to gut the DOJ office that prosecutes these and environmental crimes cases, the solution may be to press for more enforcement by states. I believe there are already more criminal prosecutions in state plan states, but perhaps this approach can be taken by state AG offices in other federal OSHA states as well. That also allows for criminal prosecution in non-fatal cases, for assault and battery as well as reckless endangerment.