Copyright 2004 Newsday, Inc.


Newsday (New York)
June 15, 2004 Tuesday
CITY EDITION
SECTION: NEWS; Pg. A02

LENGTH: 2048 words

HEADLINE: Building a case for workers;
The latest death of a day laborer prompts calls for better control of industries that rely heavily on immigrants

BYLINE: BY BRYAN VIRASAMI AND GRAHAM RAYMAN. STAFF WRITERS

BODY:


The recent death of an immigrant construction worker, the 14th such laborer killed in the city in the past five years, has triggered new calls for stiffer criminal charges against unscrupulous contractors.

The human cost of cutting corners to save money has become all too familiar, but few tangible changes have resulted, even after the string of deaths.

According to a Newsday count, the Chinese emigrant whom friends identified as Jian Quo Shen, 44, killed when a concrete wall collapsed over him June 7, was at least the 14th such worker killed since Mexican laborer Eduardo Daniel Gutierrez drowned in cement at a Williamsburg site in November 1999.

"It's a recurring story," said Assemb. Brian McLaughlin (D-Flushing), president of the New York City Central Labor Council. "Nothing has been done. What's more alarming is the appearance that there is even more and more evidence of workplace tragedies."

Manhattan District Attorney Robert Morgenthau has successfully prosecuted several cases against contractors linked to worker deaths, including the October 2001 Park Avenue scaffolding collapse that caused five deaths.

"It's a big problem, because the workers generally don't speak English, they need the work, and they are reluctant to complain," Morgenthau said.

The city's Buildings Department found that the owner and contractor of the Queens site, Yong Fa Cai, failed to provide proper structural support during excavation work. He was issued a violation, and a stop-work order was plastered on the barricaded wall of the site on 92nd Street in Elmhurst. The federal Occupational Safety and Health Administration and the Queens district attorney's office are investigating. The owner did not return calls.

Shen was part of a growing cadre of Chinese workers who find work in construction by answering small newspaper ads or gathering on Flushing street corners to wait for employers.

The list of the dead includes several Mexicans, a Brazilian, an Ecuadorean and a Jamaican. The majority of day laborers whose main income comes from construction jobs are Latinos.

No protections

Most of the day laborers are undocumented immigrants and therefore are often forced to work in underground jobs under harsh conditions. Advocates say that sometimes, after a long work day, immigrants are paid less than their agreed-upon wages or are abandoned without pay.

Hector Cordero-Guzman, a sociology professor at the CUNY Graduate School who has studied day laborers extensively, said inadequate regulations leave day workers vulnerable.

"It's clear when you look at the day labor market in New York: Violations of wage laws, hour laws, health and safety rules and regulations are rampant," he said.

The main players in worker safety here are OSHA and the city Department of Buildings.

Susan McQuade of the nonprofit New York Committee for Occupational Safety and Health said OSHA has focused on training programs. What really is needed, she said, is stricter enforcement and larger fines and penalties.

"Without strict enforcement, there's no onus on the contractor," she said. The workers' deaths should spark OSHA to establish a special enforcement program for residential construction in New York City, she said.

"I can't directly address the comments of NYCOSH, but there is no question that OSHA has a strong emphasis on enforcement," said John Chavez, a Department of Labor spokesman based in Boston (OSHA has no local press office).

Chavez said 42 OSHA compliance officers have the responsibility to cover the city, plus five counties in New Jersey and three upstate counties.

A law enforcement source said fines and penalties, both on city and federal levels, are not high enough to dissuade unscrupulous contractors from cutting corners and costs.

The maximum penalty for an OSHA violation is six months in jail. City fines are capped at $2,500 for some types of violations and $5,000 for others, but the actual fines often are substantially lower.

"There are a lot of unscrupulous contractors out there, and they do a cost-benefit analysis," the source said. "The money they save far outweighs the risk of getting caught."

Worker safety technically falls under OSHA's jurisdiction, city Buildings Department officials said.

"Clearly, there is a crossover, and we do have some concerns, but the resolution lies outside the city's authority," department spokeswoman Ilyse Fink said.

While city officials point to OSHA, the city itself does not require licensing of contractors.

Councilman James Oddo (R-Staten Island) has proposed such a bill.

"The city licenses cigarette vendors, bingo parlors, motion picture operators, but not general contractors," Oddo said. "It makes you scratch your head."

Another measure to regulate scaffolding is pending in the City Council.

Prosecutors stepping up

Fink said a new focus by local prosecutors on worker deaths is a positive sign. "It seems that the district attorneys are focusing on it more, and that sends the message better than any fine or regulation," she said.

Indeed, prosecutors in Manhattan and elsewhere have successfully prosecuted a number of contractors linked to worker deaths in recent years. But the question of what to do before the fact - to prevent or reduce the number of such deaths - remains.

Morgenthau said the biggest challenge is the legal requirement that prosecutors prove that the contractor intended to cause the accident.

He said if that requirement was removed, and a strict liability standard was followed, it would be less difficult to prosecute contractors who violated safety rules.

"If you take out the intent provision, then if you violate the building code in a way that results in a death, then it's a crime," he said. "You don't have to prove intent, which is difficult."

Morgenthau also said more inspection of construction sites is needed. He is considering sending investigators to work sites to get a better handle on how widespread the problem is, he said.

Conditions surveyed

A report last year by the Community Development Research Center at New School University, titled "Day Labor In New York," found stark conditions in a survey of day workers at 29 of 57 gathering sites in the city and upstate.

The day labor force statewide is estimated at between 5,831 to 8,283, most being Latino men. Of those surveyed, 82.6 percent perform construction work, including what the survey called "tasks that may expose them to chemical waste and other occupational hazards."

Cordero-Guzman said another problem is inadequate state Labor Department inspectors and an organized way to hire workers, such as creation of centers where workers and potential employers can meet.

While he supports stronger punitive action against unscrupulous employers, he said, requirements placed on contractors should not be so tough that employers shy away from hiring day laborers.

"How can you provide worker safety and security and not, at the same time, make this thing so punitive and make it so underground?" Cordero-Guzman said.

Michael A. Arcuri, the Oneida County district attorney and president of the New York District Attorneys Association, said the issue recently was raised within the association.

"It's something we think we would like to take a more in-depth look at," Arcuri said.

Eager to work

Meanwhile, almost every morning about 7 a.m., along 40th Road near Prince Street in Flushing, several dozen Chinese men can be seen waiting for contractors who are looking for laborers.

Some in the roadside contingent, while reluctant to discuss their situation, say they prefer to answer classified ads because they're likely to get work that lasts more than a single day. On the other hand, they say, being hired off the street often results in jobs that may last only one day but bring in about $10 more per day.

Getting work through an ad does not mean a safer work environment. For the Elmhurst job that led to his death, Shen answered a newspaper ad.

"These day laborers have almost no support or protection," said Chung-Wha Hong, advocacy director at the New York Immigration Coalition.

After the June 7 accident in Elmhurst, Shen's identity was a mystery for days, even to the man who hired him. It was only after Shen did not return home that friends became worried and notified police. By late yesterday, police had not officially confirmed Shen's identity.

An autopsy by the medical examiner's office showed the worker died from chest compression, rib fractures and injuries to organs of the chest.

Hong said that incident cries out for some kind of redress. Government should require employers to keep some type of record - at the least, a worker's name and address.

Councilman John Liu (D-Flushing) agreed that there's a critical need for reform to protect workers.

"There's a total lack of oversight over the employers that hire these day laborers," Liu said. "Unfortunately, this kind of situation is too common ... there are many cases where people get hurt."

Death on the job

A Newsday examination found at least 14 immigrant workers have been killed in construction accidents in the city since November 1999.

Eduardo Daniel Gutierrez, 21

Nov. 4, 1999

Mexican immigrant Gutierrezdrowned in wet cement and eight workers injured at a building collapse at 50-60 Middleton St. in Williamsburg.

CASE UPDATE

Contractor Eugene Ostreicher, owner of Industrial Enterprises Ltd.

and Faye Industries of Brooklyn, pleaded guilty to lying to a federal investigator about a prior collapse at an unrelated job site; he agreed to pay a $1 million fine and quit the business.

Rogelio Villanueva, 43

April 30, 2001

Mexican immigrant Villanueva crushed by a falling steel beam at a site at 104 S.8th St. in Williamsburg

CASE UPDATE

Moshe Junger, owner of Mordechai Rubbish Inc., a Brooklyn demolition company, and foreman Ramon Acosta pleaded guilty to federal workplace safety charges. Junger sentenced to four month in prison, Acosta to 2 years' probation.

Five killed

Oct. 24, 2001

Mexican and Ecuadoran immigrants were killed when scaffolding collapses at 215 Park Ave. South in Manhattan.

CASE UPDATE

Contractor Philip V. Minucci,

of Tri State Scaffold andEquipment Supplies pleaded guilty to second-degree reckless manslaughter; sentenced to 3 to 10 years in prison in incident that killed Cesar Fabeam, Manuel Balarezo, Efrain Gonzales, Ivan Pillacela and Conde Donato

Antonia Romano, 41

May 16, 2002

Mexican laborer Romano dies when makeshift floor loaded with hundreds of cinder blocks gives way at 33 E. 61st St.

CASE UPDATE

Upper East Side.

Contractor Michael Tam

convicted of reckless endangerment and sentenced to 3 years' probation. Foreman Cheung "Ken" Ai pleaded guilty to criminally negligent homicide; sentenced to 1 year in prison.

Cerlon Arauge, 34

Sept. 16, 2002

Brazilian immigrant digging 8-foot-deep trench crushed when basement walls collapse at 216 E.18th St. in Manhattan.

CASE UPDATE

Unknown

Manuel Falcon, 18

Nov. 20, 2003

Educadoran laborer working without a hard hat, tethering cord or other safety gear was killed in fall from roof at 150-11 126th St. in South Ozone Park in Queens.

CASE UPDATE

OSHA issued a fine of $8,750 against construction company Roxy Development Corp. for failing to provide any safeguard at the house.

Lorenzo Pavia, 39

Dec. 15, 2003

Mexican laborer killed by a backhoe when a trench caves in at Taylor Street and DeGroot Place on Staten Island.

CASE UPDATE

City Buildings Department and Transportation Department issued summonses to Formica Construction Co. of Staten Island for failing to meet work site requirements.

Calwain Brown, 57

Feb. 17, 2004

Jamaican immigrant killed in fall from ladder when scaffolding collapses at 1180 Jackson Ave. in Morrisania, Bronx.

CASE UPDATE

Buildings Department issued four violations to P&G Management, including one for unsafe use of the ladder and scaffold.

Angel Segovia, 37

May 20, 2004

Ecuadoran immigrant killed when an illegally constructed balcony roof collapses beneath him at a condominium construction site in Bay Ridge.

CASE UPDATE

Brooklyn district attorney's office is investigating; Buildings Department issued violations against three companies involved in project.

Jian Quo Shen, 44

June 7, 2004

Chinese immigrant killed and two other workers injured when trench collapses at 51- 18 92nd St., Elmhurst.

CASE UPDATE

Queens district attorney's office, OSHA and city Buildings Department are investigating.

GRAPHIC: 1) Eduardo Daniel Gutierrez 2) Jian Quo Shen 3) Conde Donato 4) Efrain Gonzales 5) Photo by Jori Klein - A balcony collapse May 20 in Brooklyn killing one immigrant worker and injuring two others. 6) Newsday Photo / Alan Raia - Day laborers approach a van on Prince Street between Roosevelt Avenue and 40th Road in Flushing on Thursday. Newsday Chart / Justin Gilbert - Death on the job (see end of text)