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    GUEST EDITORIAL: New York Construction Industry in Jeopardy of Losing Labor Force to Inadequate Safety Laws

    Oct. 25, 2022
    The root of most workplace deaths involves a lack of precautions and protections for workers.

    The pandemic has left many lasting effects upon New Yorkers, not the least of which is the mark it has left upon the construction industry and the workers New York employs. The construction industry was more deadly to workers in New York, in the first year of the pandemic, than in the prior two years, reversing a multiyear decline in the statewide fatality rate.

    Forty-one workers were killed on construction sites in New York in 2020, including 13 in New York City, according to a report published by the New York Committee for Occupational Safety and Health (NYCOSH). While that represents fewer overall deaths than in 2019, the fatality rate among construction workers increased by 9% statewide as construction projects slowed and industry jobs decreased, according to NYCOSH. New York City, however, saw that rate fall by a stunning 40%, attributed, in part, to conditions that existed when the city was the epicenter of the pandemic.

    At the same time, the report found that federal regulators conducted the lowest ever number of inspections in New York State in 2020, a 53% decline from 2019. It's another data point indicative of how much of an anomaly the first year of the COVID-19 pandemic was.

    "As is the case for every single year that we've put out this report, construction remains in New York much more dangerous than it is in other parts of the country," said Charlene Obernauer, executive director of NYCOSH, an association of workers’ rights advocates, labor unions, and community-based organizations.

    "One of the biggest disappointments is that OSHA conducted it's fewest number of inspections in the history of the agency," she said, referring to the federal Occupational Safety and Health Administration (OSHA), part of the U.S. Department of Labor. In 97% of cases where a worker died, employers had existing OSHA violations, according to the report. OSHA violations can range from failure to provide fall safety devices or respiratory protection, to misuse of scaffolding, to utilizing untrained workers, along with many other safety shortcomings.  

    The report also shows that most construction workers killed, on the job, in New York in 2020 were not unionized and a disproportionate number of the workers killed were Latino. It is clear, that Latino New Yorkers are overrepresented in worker deaths across all industries, making up 10% of the state’s workforce but accounting for 18% of workplace casualties. Labor advocates blame the construction deaths in New York on gaps in union representation, exploitation of immigrant workers, and a system that does little to penalize contractors for unsafe working conditions. Other reasons advocates point to are the sheer size of New York City and the collective height of its structures.

    Nevertheless, the root of most workplace deaths involves a lack of precautions and protections for workers. Four out of five fatalities investigated by OSHA, on private construction sites in 2020, occurred on jobs where workers were not unionized. In New York City, every site OSHA investigated was non-union.

    Unionized workers tend to have more training, often through years of apprenticeship. They also have clearer channels to report violations and an organization to back them against employer retaliation if they do. Only 17% of New York City's construction workforce and 23% of the state's is unionized, according to an analysis of 2019-2020 U.S. Census data from the CUNY School of Labor and Urban Studies. Both are still higher than the national average of 13%.

    Immigrant workers, especially individuals who are undocumented, are often taken advantage of and have even fewer avenues of recourse and support. Furthermore, Latino construction workers are also less likely to be unionized. A study from the Economic Policy Institute, a national non-profit think tank, found Hispanic workers held nearly half of all nonunion construction jobs over the ten-year period from 2006-2015, but less than a third of union jobs.

    To combat this, NYCOSH pushed for the passage of Carlos’ Law. A bill named for 22-year-old Carlos Moncayo, an Ecuadorean immigrant who was buried alive at a construction site in New York City’s meatpacking district in April 2015 while working in an unreinforced 13-feet-deep trench that had been cited by safety inspectors. This bill sets forth new crimes for endangering workers and would raise penalties for employers, contractors, and other corporate entities when a worker is killed or injured on the job. This five-year-old bill is awaiting the governor’s signature. However, the New York Trades Employers Association is pushing Gov. Kathy Hochul to hold off on signing Carlos’ Law. The group, which represents construction managers, is asking the Governor to water down the law by setting a cap on fines and more narrowly defining who can be held liable when a worker is injured or killed.

    At bottom, and regardless of the eventual implementation of Carlos’ Law, Construction workers performing work in New York face devastating injuries every day, and their employers have a responsibility to do everything possible to prevent accidents. In fact, civil rules within the Industrial Code of the State of New York, enforced through NY Labor Law Section 241(6), and found primarily at 12 NYCRR Section 23 of that Labor Code, specifically state construction work regulations regarding an employer’s, owner’s and contractor’s responsibility to provide Personal Protective Equipment (PPE). These laws, and others like them, are not only critical to the health and safety of our workers, but also at stake is the continued growth of the construction industry at large. Without adequate laws related to safety, and without proper enforcement of those laws, the construction industry will face attrition of its brightest and best, by the departure of its workers from attrition and transference to safer venues. This, of course, will be coming at a time when New York City, the largest municipal employer in the country, is facing an exodus of city workers that has led to a surge in job vacancies and difficulties delivering basic municipal services. The city’s overall job vacancy rate was 7.7 percent as of March 2022 — five times higher than in recent years, according to the most recent data from the Citizens Budget Commission.

    Therefore, it is critical that the Governor, and other lawmakers, make good on their promise to protect all workers and stand up to interference from special interests and other groups whose focus is not the health and safety of those putting their lives on the line on a daily basis.  

    Howard Frederick, Esq. is Partner with The Platta Law Firm, PLLC, New York, NY. Howard has over 30 years of trial experience in construction accident cases, for both defense and plaintiff.