How the death of an immigrant at a construction site changed the laws in New York

In April 2015, Diana Florence, a longtime prosecutor with the Manhattan District Attorney's office, was considering retirement. But a phone call about the death of an immigrant worker at a construction site changed her plans. And he went on to change New York State's approach to dealing with construction fatalities. city ​​limits.

Seven years after that phone call, on December 23, 2022, Governor Katie Hokul signed into law the bill Florence initiated. It raises the financial penalty for employers found criminally liable for the death or serious injury of a construction worker. The bill would increase fines 50 times their previous level, to $500, for charges related to the death or injury of a worker.

This comes at a time when both the city and the state plan to ramp up development in the face of housing shortages. Mayor Eric Adams vowed to "make it build." And the governor has set a goal of building 800 new homes over the next decade. “This legislation will add a new level of responsibility for security protocols. And will establish important protections for the people who do this vital, difficult and often dangerous work,” Hokul said after signing the bill.

“The Carlos Law is an important step forward in depriving unscrupulous companies of the opportunity to put profit before people,” Florence emphasized in turn and noted that there is still hard work ahead: “This is only the first step. If prosecutors do not consistently pursue prosecution, this victory will be symbolic.”

Prosecutions, let alone criminal convictions, against construction contractors are extremely rare.

As a rule, they are dealt with civilly through safety lawsuits. It is especially difficult to prosecute senior officials (developers, CEO) because there are many levels of responsibility. And there's usually not enough evidence to hold them accountable.

On the subject: Salaries and bonuses in New York are highly dependent on union membership: shocking examples

In addition to Florence's Harco Construction verdict, the Manhattan District Attorney secured another successful verdict. SSC Highrise pleaded guilty to manslaughter in connection with the death of a worker who fell from the 39th floor scaffolding in 2016.

The Manhattan prosecutor's office confirmed that they currently have five open cases in which construction workers were injured or killed on the job. “Workers are risking their lives to keep Manhattan as the world's economic powerhouse,” Manhattan District Attorney Alvin Bragg said in response to Carlos' bill. They deserve the strongest protection under the law. And this law will significantly expand our ability to bring to justice unscrupulous individuals who put their employees in danger.”

A spokesman for the Bronx District Attorney's office said that in the past 20 years there have not been any charges of negligent homicide in connection with a fatality at a construction site. They plan to allocate more resources to investigate such cases in the future. And they are currently investigating the death of Linden Samuel. A construction worker died at his workplace in the Bronx in December 2022.

Brooklyn Attorney Eric Gonzalez has filed a criminal investigation into the death in 2018 of Luis Sanchez Almonte, who died after a wall collapsed at a construction site in Sunset Park, and into the death of another construction worker in 2015. Gonzalez's office declined to say if it was currently handling any similar cases and said they generally do not comment on ongoing investigations. The Queens and Staten Island district attorneys' offices did not respond to questions.

More than just an accident

The origins of the Carlos Act (S.621B/A.4947B) began with a call from a Manhattan homicide assistant about the death of an immigrant worker at a Manhattan construction site who died in a workplace accident. The assistant was ready to close the case, which, at first glance, was not a typical murder. But the assistant asked Florence, who has extensive knowledge of safety and construction, to give him a second opinion.

The victim was Carlos Moncayo, an Ecuadorian immigrant living in Queens. Moncayo was just 22 when he died on April 6, 2015 at a construction site in Manhattan's Meatpacking District. Then the dirt walls of the trench he was digging came crashing down on him from above. It had all the hallmarks of a tragic accident. But, as Florence soon discovered, Moncayo's grisly death could have been easily averted if the contractors had taken precautions.

The case in Moncayo was unusual. One of the police officers who arrived on the scene turned out to be a lieutenant who had worked at a construction site in his youth. He was well acquainted with construction safety and quickly identified the mortal danger. The trench that Moncayo dug was not properly reinforced.

The Occupational Safety and Health Administration (OSHA) requires trenches over 5 feet long to have a containment system. One way is to tilt the trench so that its walls are at a safe angle. Another way is to strengthen, that is, the installation of supports to prevent the collapse of the soil. The trench that Moncayo was digging had neither.

Taking the call, Florence went straight to the construction site, where she interviewed colleagues, managers, and a police lieutenant who noticed a safety violation. “It was not just an accident,” she concluded.

As Florence interviewed witnesses, the story began to piece together. Moncayo was an illegal immigrant working in construction without a union

The general contractor, a firm called Harco Construction, committed significant safety violations, including failing to reinforce the trench, which led to Moncayo's death.

His case is indicative of broader trends. In the construction industry, the most dangerous jobs are non-union workers. In 2020, the latest year for which complete data is available, 79% of workers who died on private construction sites were working without union membership. The most common construction deaths were Hispanic workers, according to data compiled by the New York City Committee on Occupational Safety and Health (NYCOSH).

In 2015, when Moncayo died, the number of such deaths reached 25. The previous year, 22 people died in New York, almost all of them working on non-union construction sites (according to data compiled by the state Department of Labor). This data registry was only created in 2020 due to a legislative reform requiring the state to maintain a public database of construction fatalities.

Florence said that unlike similar incidents, in the case of Harco, she was able to gather clear evidence indicating that senior management knew about unsafe working conditions. Most tellingly, the construction manager at the site left a trail of email behind him. A month before Moncayo's death, he sent an email to his boss at Harco warning him that working conditions at the construction site were dangerous. The boss ignored the warning. The construction manager, as it turned out later, was ordered to stop talking or quit. The construction manager decided to quit. A month later, Carlos Moncayo was dead.

Florence knew she had the evidence to file criminal charges against Harco Construction. But her office was initially hesitant because Harco, a multi-million dollar company, could hire the best lawyers to defend itself. However, in the end, the prosecutor won and received permission to file a criminal charge.

Despite the novelty of the company's criminal negligence charge in connection with the death of an employee, it managed to secure a guilty verdict. Judge A. Kirk Bartley, Jr. of the Manhattan Supreme Court found Harco Construction guilty of second-degree manslaughter, gross negligence, and reckless endangerment. Attempts to contact Harco for comment have been unsuccessful.

'Monopoly money'

It was a rare verdict as criminal charges against general contractors are hard to win. Florence felt like a winner. During the sentencing, she felt that justice had been done.

The feeling of victory vanished when the referee announced the punishment.

The judge ordered Harco to pay a $10 fine. This is the maximum penalty for any company convicted of a felony in New York State. “For companies like Harco Construction, $000 is Monopoly money,” said Cyrus Vance Jr., the Manhattan district attorney. “The fine was not paid even for one day of work on this project,” Florence said.

In response, Florence, in collaboration with the unions, drafted a bill that became known as the Carlos Law. It imposes much higher penalties for corporations convicted of negligence offenses resulting in injury or death to a worker. The bill was introduced in 2017 and passed by the New York State Assembly. But he stalled in the State Senate, where the Republicans then had a majority. And real estate groups opposed it.

After five years of negotiations and as the Democrats took control of the upper house of the state, the bill did pass the Senate in June 2022.

“A young man died in his prime due to the gross negligence of a contractor,” said New York State Senator James Sanders Jr., the bill's author in the Senate. “Contractors may think it's a cost of doing business. And we want to increase this value. We want it to be closer to the cost of a human life, and not just something that can be written off from taxes.”

Some compromises have been made along the way.

The previous version of the bill, which included a much higher minimum fine, has been criticized because it could hurt small contractors. Including businesses owned by minorities and women. Luis Coletti, president of the Construction Employers' Association of New York, argued that the bill needed to be amended. Including canceling the minimum amount and increasing the maximum number of potential fines. The state legislature eventually reduced the fine to a maximum of $500 instead of a minimum.

Charlene Obernauer, chief executive of NYCOSH, spoke out against criticism of the original bill. In her opinion, the likelihood that the company will face criminal charges is extremely small. “[The Carlos Act] does not make it easier for a company to be found guilty of negligent homicide. He just toughens the punishment,” she stressed.

Obernauer explained that while NYCOSH could develop several pieces of legislation, "depending on the will of the governor, the will of the mayor, you can't be too hard on real estate in New York and be effective, unfortunately."

“Real estate is a big player in New York,” she concluded. “And, of course, he is listened to at all levels of government.”

Florence says Carlos' Law doesn't solve all the problems facing the construction industry as it doesn't set stricter safety standards

But for people working in manufacturing, the bill offers new hope. “We want to do better in trying to prevent death or injury,” said John Simmons. He is now a member of a union, but has worked at a construction site for nearly four years without a union.

Enforcement of building safety laws and regulations is also a major concern among building safety advocates.

“There are already a million laws about what a building site should be,” Una Adams said. The assistant director of the Local Builders' Union also helped promote the new law.

“There are laws that workers must be tied [to safety harnesses]. And yet we see one catastrophic downfall of workers after another,” Adams said. And it's not because there is no law. But because the workers do not have the strength to make this law meaningful.”