It is no secret to anyone who has followed my rants for the past couple of decades that killing workers in trench collapses really pisses me off. Workers die all kinds of ways every day in this country, but the hazards of trenches are well recognized, and preventive measures are well known — and required by law.
Although Department of Labor attorneys would always shut me down, I have always advocated for an automatic willful violation whenever a worker is killed in a trench collapse. I find it hard to believe that there is any construction company owner in the country who isn’t aware of the hazards of deep trenches and how to prevent them. It literally takes half a second to come up with 10.6 million results with a Google search. (OSHA defines a willful violation as “a violation in which the employer either knowingly failed to comply with a legal requirement (purposeful disregard) or acted with plain indifference to employee safety.”)
But the employer’s ignorance or failure to understand the hazards of trenches is not the problem. In 2021, for example, OSHA cited a Texas contractor for sending workers back into an unprotected 13-foot trench after it had already partially collapsed hours before. The trench collapsed again, burying and killing one worker and partially burying the second, who suffered serious injuries.
And it’s not hard to figure out if a worker is in danger. Trenches over five feed deep need to be protected. Which means if a trench is over the shoulders of an average worker, it’s too deep.
The employer’s ignorance or failure to understand the hazards of trenches is not the problem.
Things don’t seem to be getting better. In 2022, OSHA reported that at least 39 industry workers died, 22 of them in the first six months of the year. That was more than double the number in 2021. Between 2011 and 2018, 166 workers died in trench collapses, the Bureau of Labor Statistics reports. 5 incidents last year were double fatalities.
Unfortunately, enforcing the law after a trench deaths generally only results in an OSHA citation and financial penalty. The average penalty for a trenching violation in the construction industry is around $5,000. Of course, that number goes up if there’s a willful violation or a fatality involved. Although the Occupational Safety and Health Act provides for criminal violations, there has to be a willful violation associated with a death — and even then it’s only a misdemeanor. Hardly worth the time and resources of the Justice Department to pursue such cases.
So if an employer’s luck holds out and they don’t kill or seriously injure an employee in a trench collapse, the likelihood of being cited by OSHA – or ever seeing an OSHA inspector — is vanishingly small. OSHA simply doesn’t have the resources to inspect every construction site — large and small — in the country. And construction workers — especially non-union construction workers working for small companies — don’t have the knowledge or job-security to call OSHA. Many are immigrant workers, some undocumented — who fear being retaliated against or deported if they complain.
So you can imagine my surprise and pleasure when I read last week that
A construction company operator was convicted Thursday in connection with the death of laborer Luis Sánchez Almonte, who was fatally crushed by 15,000 pounds of debris on a Sunset Park job site in 2018. In a bench trial, Brooklyn Supreme Court Justice Danny K. Chun convicted Jiaxi “Jimmy” Liu of the construction group WSC Group of criminally negligent homicide, in addition to offenses related to workers compensation fraud.
Liu, who operated the WSC Group Inc., was convicted on charges including criminally negligent homicide and tax fraud, and faces a maximum sentence of eight to 16 years in prison. The foreperson, Wilson Garcia Jr., was convicted of criminal mischief and faces up to one year behind bars. Both will be sentenced next month. OSHA had issued two citations against the company in March 2019, totaling $63,647. One was for a “willful” violation of federal construction safety regulations, the most serious category, although the fine was less than half the maximum that OSHA was allowed to issue.
Liu had been aware of the hazards.
The Brooklyn DA’s investigation found Liu refused to stop work on the 39th Street site despite warnings of dangerous conditions from workers and adjacent property owners. Liu and Garcia — who as the foreperson on the site OSHA considered a “competent person” authorized to identify safety hazards — also failed to report the conditions to the [Department of Buildings].
“This was no mistake, this was not an accident, what happened,” [Brooklyn District Attorney Eric] Gonzalez said at the time. “This was a direct result of owner recklessness and neglect.”
Criminal Convictions for Trench Collapse Deaths Are Rare
Homicide or manslaughter convictions related to workplace “accidents” are extremely rare, mainly because it can be difficult to prove that an employer’s reckless or negligent actions led to the death or injury of a worker. Even the word “accident” makes a criminal conviction harder. The word “accident” implies that it was just one of those things, who could have known? God’s will. Or something unpreventable.
And because of the difficulty and weakness of federal OSHA criminal provisions, it’s usually left to local prosecutors to follow up on these case, and most don’t bother. Either they’re not familiar enough with workplace safety, or they think it was just an unavoidable “accident” or it’s just too much work.
OSHA has been working more closely with local prosecutors to pursue homicide cases. For example, a Washington construction employer just served jail time for a fatal trench collapse. Further back, the Manhattan district attorney won a manslaughter conviction against the general contractor, Harco Construction, for the 2015 trenching death of a young undocumented immigrant construction worker, 22-year old Carlos Moncayo. The foreman for the excavation company, Sky Materials, was convicted of criminally negligent homicide and reckless endangerment, and sentenced to one to three years in jail.
And last January, Peter Dillon, the owner of the now-defunct Vail Construction company, A4S LLC was indicted for manslaughter under the Occupational Safety and Health Act, after 23-year-old Marlon Alfredo Diaz. was killed in a trench collapse in November 2021. The OSHA investigation found that “deteriorating conditions” led to a deadly trench collapse. OSHA issued 3 willful citations and proposed penalties of $449,583, but later reduced to $100,000.
Meanwhile, New York Governor Kathy Hochul recent signed “Carlos’s Law” which will increase the penalties for criminal corporate liability for the death or serious physical injury of an employee, a felony or misdemeanor, by a fine of up to $500,000. The law is named for Carlos Moncayo, mentioned above, who was killed in a trench collapse in 2015 because his employer ignored repeated warnings of dangerous conditions
But criminal cases are still rare and only apply when workers are killed. Until OSHA starts issuing more serious penalties even when there are no fatalities, things are unlikely to change significantly.
Nevertheless, it will make my job of neighborhood worker safety inspector easier. When I see someone down in a deep trench, I can more truthfully tell the foreman or owner that if anything happens, you’ll not only be fined by OSHA, but you may end up in jail.
2 hours after finishing this, I run across two workers in a 12 foot-deep trench a block and a half from my house. With a trench box sitting right next to it.