Saturday, November 05, 2005

Manslaughter Charges In Trench Death

A Staten Island, New York, construction company owner, Ken Formica, owner of Port Richmond-based Formica Construction, was charged with manslaughter yesterday in the 2003 death of a Mexican laborer, Lorenzo Pavia. Pavia was crushed to death under tons of earth when a 15 foot deep unshored trench collapsed on top of him and then decapitated in the rescue attempt.

What is significant about this is that the prosecutor used manslaughter laws instead of the Occupational Safety and Health Act which carries much lower penalties. Until the OSHAct is changed to allow stiffer penalties that will effectively deter these types of preventable tragedies, we need to strongly support aggressive prosecutors who apply tougher criminal penalties to workplace incidents.

I wrote about this first tragedy last May, basing it on an excellent article by Staten Island Advance reporter Heidi Shrager, who went far beyone the usual "trench collapsed, worker died, terrible accident, everyone's sad, one of those things, move on" stories that we see by the dozens every week.

According to yesterday's indictment,
Formica allegedly knew the 15-foot-deep, waterlogged trench that he helped dig was deadly when he directed Lorenzo Pavia, 39, to descend into it, according to the seven-count indictment unsealed yesterday.

"No worker, regardless of his or her job, should be exposed to the dangers posed by an unshored trench," said District Attorney Daniel Donovan during a press conference after Formica's arraignment in state Supreme Court, St. George. "The lives of construction workers in our community are not a dispensable commodity. Failure to protect workers in this way is a crime and will result in your prosecution."
In addition to second-degree manslaughter, Formica was charged with criminally negligent homicide, first-degree reckless endangerment, and third-degree assault.

In New York, "A person is guilty of manslaughter in the second degree when...He recklessly causes the death of another person."

Formica's attorney said it was just an accident:
"We believe this was a tragic accident," said Joseph V. Sorrentino, Formica's defense lawyer. "This is a guy with a stellar safety record who cooperated from the beginning of the investigation. There was no attempt here to cover up or to run from responsibility."
Formica, the "guy with a stellar safety record," had received a previous citation nine months before Pavia's death. In that case, an inspector from the city Department of Transportation ordered one of Formica's workers out of an unsafe trench, and warned Formica to follow safety regulations.

Formica faces 15 years in jail. OSHA had previously fined the company only $15,000 even though there were 14 serious and one willful violation. Had OSHA sought a criminal prosecution under the OSHA Act, the charge would have been a misdemeanor with a maximum of 6 months in jail. This case, is therefore, particularly significant:
"Indictments are extremely rare," said Jordan Barab, a former OSHA official who writes extensively about the issue on his worker safety Web log. "The real importance here, beyond punishing the management of the company itself, is the message it will send to other employers. They can't take shortcuts lightly. There is a major price to be paid for putting someone's life at risk just to do things more quickly, or make more money."

Under OSHA regulations, trenches deeper than 5 feet must be either shored or sloped. During his deposition after Pavia's death, Formica admitted to OSHA investigators that he made a mistake by leaving the trench unshored, and was at a loss as to why that was the case.

OSHA charged the company with 15 violations totaling almost $15,000. All the fines were deemed "serious" except for one: The charge of not shoring the trench, which was deemed "willful," the most serious kind of offense and the required classification in order to criminally prosecute under the OSHA Act. Still, prosecutors charging defendants with violating the OSHA Act can seek only a misdemeanor charge and a maximum penalty of six months.

Donovan's felony charge of second-degree manslaughter represents "a more creative way" to tackle the problem, said Barab.

Prosecutors are "drawing the parallel between killing someone in a bar fight and killing them in the workplace," he added. "They are taking a law used for other purposes and applying it to the workplace, which I think, given the weakness of the OSHA Act, is a very good thing."

OSHA, which is attempting to focus more on criminal penalties after being embarassed by a couple of NY Times series in 2003, assisted in this indictment.
Labor officials and advocates hailed the indictment as a huge step toward ensuring workplace safety, especially for undocumented immigrant workers like Pavia, who typically are ignorant of regulations, hesitant to report employer violations to regulators and speak little English.

While workplace fatalities are on the decline in the general population, they are soaring among Hispanic and immigrant workers, said Robert D. Kulick, the director of the federal Occupational Safety and Health Administration branch in Avenel, N.J., whose staff worked with Donovan's office in the indictment.
Bills have been introduced in the House of Representatives (by NY Congressman Major Owens) and in the Senate (by MA Senator Ted Kennedy) that would change the OSHAct to make corporate manslaughter a felony offense, with the possibility of sentences that might range from no time behind bars to up to 10 years in prison. Upon a second offense, the maximum sentence could be doubled.