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Crimes and Punishments: Recent prosecutions and fines give hope to safety advocates

Prosecutors take action in deaths of Carlos Moncayo and other workers

Carlos Moncayo knew a thing or two about safety.

The 22-year-old Ecuadoran immigrant to New York City had scraped together $500 to get 26 hours of OSHA training in safe construction practices.

If only his employers had paid similar attention to workplace safety, Carlos would not have been buried alive, crushed to death by thousands of pounds of dirt.

The company Carlos worked for, a subcontractor, and two executives will face criminal charges following his death. It’s part of a recent uptick in prosecutions and large fines for safety violations. To prevent future tragedies, safety advocates say, it’s essential to hold employers accountable.

“You can’t put a price on a human life, and no amount of money can bring back a husband, a wife, a father or a mother,” said Jessica Martinez, Deputy Director of National COSH. “But seven-figure fines and indictments which can result in real prison time will get the attention of corporate executives.”

Criminal penalties are especially important when employers know about a potential hazard, but fail to act. “Carlos Moncayo’s death at a construction site was tragic,” said Manhattan District Attorney Cy Vance, Jr. “But it was also foreseeable and avoidable.” Carlos had been excavating a 13-foot trench on April 6th at the site of a new Restoration Hardware complex, when the trench walls collapsed and killed him.

On August 5th, Vance announced manslaughter charges against general contractor Harco Construction, its site superintendent Alfonso Prestia, subcontractor Sky Materials, and its foreman Wilmer Cueva.

According to evidence presented by prosecutors and city officials:

  • An inspector had twice visited the construction site the day of Carlos’ death and told supervisors to order workers out of the trench.
  • The defendants had for months ignored inspectors’ warnings about unsafe conditions at the site.
  • Harco has “a pattern of risky behavior” at its construction projects, with over 30 safety violations between January 2013 and December 2014.

"The irony here is too great to ignore," said New York City Department of Investigation Commissioner Mark Peters. "An immigrant to this country who scrapes together $500 to make sure he complies with the laws and is trained on correct safety. A large company who can certainly afford to do things right decides to cut corners, evade the law, and gets that immigrant killed."

OSHA reports that the U.S. has two deaths a month from trench cave-ins. The U.S. Fatality Database, an open-source data set of individual workplace fatalities hosted at the National COSH website, documents eleven cases so far in 2015. Trench collapses are a well-known safety hazard. Prevention methods – sloping or shoring up the walls of the trench – are well-documented and effective.

The New York indictment is one in a series of recent actions by prosecutors in New York, California, Pennsylvania and West Virginia, including:

  • A $6 million fine against Bumble Bee Food, Aug. 12th: The Los Angeles District Attorney announced a record $6 million fine against Bumble Bee Foods for the death of Jose Melena. A 62-year old father of six children, Melena burned to death on October 11, 2012 at a Bumble Bee tuna processing plant in Santa Fe Springs. Melena had gone inside a pressure cooker, used to sterilize thousands of cans of tuna at a time, to make repairs. With no system in place to alert other employees that repairs were underway, the door was shut, and Melena was baked alive at a temperature that reached 270 degrees.
  • Prison time for manslaughter in Milipitas, CA, Aug. 3rd: Richard Liu, owner of U.S. Sino Investment, and project manager Dan Luo were sentenced to two years in prison for involuntary manslaughter in Santa Clara County Superior Court. The executives were prosecuted by Cal/OSHA following the death of construction worker Raul Zapata in January, 2012 in another case of a collapsed excavation wall. Zapata, a father of three, was installing the concrete foundation wall when it collapsed and killed him. Just three days earlier, a city inspector had issued a stop work order at the site – because the wall that eventually killed Zapata was not properly shored up.
  • An indictment in Philadelphia, June 15th: The U.S. Department of Justice indicted James J. McCullagh, owner of a Philadelphia roofing company, for attempting to cover up violations of federal safety laws. The indictment followed the death of Mark T. Smith in June 2013; he fell to his death from a height of 45 feet while working on a roofing project. McCullagh is alleged to have told OSHA investigators that his crew was equipped with safety harnesses and were tied off to an anchor point at the time of the incident. But two employees told investigators they were not provided with harnesses, and that McCullagh instructed them to lie about it. If convicted, the roofing executive faces up to 25 years in prison and a $25 million fine.
  • The upcoming trial of former Massey Energy CEO Donald Blankenship. He is scheduled to go on trial this fall in the aftermath of the Upper Big Branch mining disaster, which claimed 29 lives at a Massey coal mine in West Virginia in 2010. Blankenship is charged with conspiracy to violate federal mine safety laws.

“To us, it seems like the narrative is beginning to shift across the country,” Nadia Marin-Molina, a health and safety specialist at the New York Committee for Occupational Safety and Health, told Bloomberg’s Occupational Safety and Health Reporter in a recent story highlighting tougher action against health and safety crimes. “There's definitely more attention to worker deaths, and more of an understanding that it's not the worker's fault and that the employer has to be held accountable.”

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