Monday, September 9, 2019

Prosecutors Getting More Aggressive On Worker Safety Cases

In 2016, a New York State construction contractor received a manslaughter charge of criminally negligent homicide and reckless endangerment for his role in the worker’s death. As recent as August 2019, two employers were criminally charged for workplace fatalities. 

One employer was charged with manslaughter after a worker’s death in a trench collapse in Colorado. The employee was tying copper piping in a main water line, about 8-feet deep in a trench, according to an OSHA inspection notice, when the trench collapsed and buried him. The incident, investigated by OSHA and local police, supported a criminal prosecution.

Another incident involved an owner of a western New York tree removal service who was arrested and charged with second degree manslaughter for allegedly operating a crane too close to power lines, resulting in the death of an employee. The charges allege that the employer put the employee in danger by operating the crane too close to the power lines and failed to put known proper safety protocols in place. 

Prosecutions against employers in New York, ranging from Fortune 500 companies to small contractors, are on pace to meet and potentially exceed estimates by the end of the year, according to the Manhattan District Attorney’s Office. Since 2015, New York’s Construction Fraud Task Force investigations have resulted in 20 criminal convictions. They are becoming more efficient at predicting bad actor companies before accidents happen. 

The Construction Fraud Task Force of the Investigation Division for the Manhattan District Attorney’s Office has developed an anonymous WhatsApp number for employees to leave tips. With WhatsApp, employee statements can be anonymous and they can take live video and pictures. 

Willful Violations Can Lead to Prosecutions

OSHA commonly cites construction employers whose employees fail to use fall protection. In fact, 29 CFR § 1926.501 (Fall Protection in Construction) is the most frequently cited regulation by federal OSHA. Employers who fail to provide and enforce the use of fall protection do so at their own risk, as OSHA will cite employers with willful violations, dramatically increasing the civil penalties. In the event of a fatality, a willful citation can then lead to a criminal prosecution by the Department of Justice.

One case from July 2018 is an example of just this kind of prosecution, when OSHA cited an employer for a willful violation of the fall protection standard for steel erection. The contractor was also criminally prosecuted, convicted, and sentenced to the maximum penalty ($500,000).
The employer appealed, stating that the Department of Justice failed to prove the three elements necessary to find a criminal conviction: (1) that the company violated an applicable standard, (2) that it did so willfully, and (3) that the violation caused an employee’s death.

The employer argued that its conduct was not willful because it provided fall protection and anchorage points, and the employee was wearing a harness. The Court countered that while the employee had a personal fall-arrest harness and connectors, he was not using them to secure himself to an anchorage point. The Court explained that “the regulations state that employees ‘shall be protected’ by appropriate equipment, not that they merely be provided with or possess such equipment.”

Employers Should Contest Unfounded Citations 
Because They Can Establish Criminal Intent

The court noted that the contractor had a previous citation for violating the same standard, and concluded that the contractor was aware of its requirements. 

Employers can learn from this case. Obviously, providing a safe workplace and ensuring that employees follow safe work practices is a basic requirement. This will not only help prevent an injury from occurring, but will also allow the employer to prove the defense of employee misconduct when an employee fails to use his/her safety equipment. This case also illustrates how accepting and settling citations may set up an employer for a willful citation in the future, and even a criminal prosecution in the event of a fatal accident. Employers should consult with legal counsel regarding an OSHA citation and ensure that any defensible citations are contested.

Supreme Court Involvement

As New York prosecutors continue their work, pending cases could affect how the nation’s prosecutors do their job in the future. Local prosecutors taking on safety cases could have been left in limbo if the U.S. Supreme Court took on a California case that asked the nation’s high court to resolve whether prosecutors could have a role in worker safety law enforcement. 

The California Supreme court held that a plastics company is criminally liable for a water heater explosion that killed two of its employees. The state’s Division of Occupational Safety and Health, also known as Cal/OSHA, determined that the explosion was caused by a failed safety valve and that the heater lacked safety features due to “manipulation and misuse.” This ruling supports California State prosecutors who have been bringing criminal charges against companies for decades. In June 2017, the company petitioned the U.S. Supreme court to hear the case. On October 15, 2018 the U.S. Supreme Court denied the petition to hear the case, thereby holding up the decision of the California Supreme court. 

Wednesday, July 24, 2019

OSHA 10 HR Construction Course-NRLA

August 21 & August 28, 2019 8:00AM-2:00 PM

To aid in your compliance with the various Federal, State and City regulations requiring this training, the LSM safety department is once again offering the OSHA 10 Hour Course.  The course is provided by our OSHA certified instructors. Each employee who successfully completes the program will receive a certification card from OSHA.

*Pre-registration is required. Please complete attached form.

Friday, June 21, 2019


Lovell Safety Groups Earn Dividends

New York, NY... Lovell Safety Management Co., LLC, announced the 2017-2018 dividend earnings of four of its Safety Groups:

  • Launderers and Cleaners, Safety Group #34
  • Building Metal Trades, Safety Group #420
  • Municipalities, Safety Group #496
  • Retail Lumber Association, Safety Group #531

Safety Group #34 returned to members a 22.5 percent dividend. Qualifying members received an advance discount of 25 percent on the 7/1/19 renewal.

Safety Group #420 returned to members a 25 percent dividend. Qualifying members received an advance discount of 25 percent on the 7/1/19 renewal.

Safety Group #496 returned to members a 17.5 percent dividend. Qualifying members received an advance discount of 25 percent on the 7/1/19 renewal.
Safety Group #531 returned to members a 20 percent dividend. Qualifying members received an advance discount of 25 percent on the 7/1/19 renewal.

Lovell Safety Groups are fully insured, non-profit entities that return any underwriting profit to group members. Any extra premium dollars collected-not used to pay losses or expenses-can be returned to members in the form of a dividend. Lovell Safety Groups provide businesses with the benefits of a guaranteed cost premium with additional savings earned through dividends.

Wednesday, June 12, 2019

Fork Lift Operator Certification

OSHA fines a New Jersey company for failure to certify their powered industrial truck operators
(Fork Lift operators)

Posted by OSHA- June 5, 2019, 3:28 PM
Employer contests a repeat citation with a fine of $37,885. The repeat citation includes the alleged violation of 29 C.F.R. 1910.178(l)(6), for failure to certify that all employees operating powered industrial trucks have been trained and evaluated as required by Paragraph (l) of this standard. (No. 19-0676)

Make sure this doesn’t happen to you.  The Lovell Safety department offers a number of different options to ensure your compliance with the requirement for training every 3 years.

On Line:          Contact our office for the needed paperwork and then have your employees watch
our eTalk at the link below:

On Site:           Your local safety representative can provide the training at your location.

Monday, June 10, 2019

Spring Landscaping Safety

Landscaping season is here.  The attached LSM Safety Alert can help you ensure that your employees stay safe.

Tuesday, June 4, 2019

Working in the Summer Heat

Dear Lovell Group Member:

Very soon your employees may have to be working out in the hot summer sun.

Attached are 2 Safety Alerts that we believe can help you ensure that they stay safe.

Monday, May 13, 2019

NYC DOB LL196 - Update

Attached please find an important update to NYC DOB Local Law 196 – Safety Training Requirements.

Thursday, April 25, 2019

Lovell Safety at Booth 28 at PIA LI RAP - May 1

Visit Lovell at Booth #28 at the PIA Long Island RAPMay 1, 2019 at Crest Hollow, Woodbury, NY

Visit Lovell Safety at the PIA Long Island RAP on Wednesday, May 1, at the Crest Hollow Country Club in Woodbury. We'll be at booth #28.

Learn about what Lovell has to offer including:

Lovell Safety Management offers up-front discounts of up to 25% and dividends as high as 30% to Safety Group enrollees.

Our experience, expertise, level of service, and industry vision continue to benefit our broker producers. We pay commissions to brokers and respect your relationship with your clients.

We look forward to seeing you at our Booth #28 at the
Crest Hollow Country Club in Woodbury!

Your Workers' Compensation Insurance Experts for over 80 Years
For more information, visit our website:

Wednesday, April 17, 2019

NYC DOB Local Law 196 Update - April 16, 2019

In light of the 3 tragic construction site fatalities in New York City this past week, the DOB safety inspectors will be performing a sweep of 5,000 construction sites.
In addition, the NYC Council has determined that the June, 2019 deadline for safety training will NOT be extended.

Please see the attached Lovell Safety Alert and the NYC DOB Update for detailed information.

Tuesday, April 2, 2019

Drones and Construction Safety

Michael Jandzinski, OHST. Safety & Health Consultant
Susan G. Fahmy, CSP, Director of Safety

Drones, also known as unmanned aerial vehicles (UAVs), have seen much technological advancement since they were first used in the military. Today’s drones are more lightweight and more agile than previous versions. They can also stream live video. All while being operated from the ground by a pilot.

Drone systems – which usually consist of an operator, control system, ground and satellite equipment, communication links and the drone itself – are now being used in various ways on construction sites. Soon we can expect to find drones on construction sites as often as drills and scaffolds, especially if they can continue to improve worker safety, boost jobsite efficiency and reduce costs for contractors.

According to the National Institute of Occupational Safety and Health (NIOSH), “the emerging uses of UAVs in the construction industry range from aiding with construction project planning by aerial mapping of a construction site to extending the actual building of structures.”

Drones can monitor construction sites, especially large sites or those spread out over several locations, often more quickly and efficiently than on-the-ground construction management. Drones can be equipped with infrared cameras, radar and other technology that enhances their surveillance capabilities on a jobsite. This information is useful for tracking not only construction progress but also workers, equipment and material on a jobsite. In the case of highway work zones, drones can inspect the entire expanse of road or an adjacent structure when fast-moving traffic presents a serious hazard for workers.
OSHA Now Using Drones to Inspect Employer Facilities
The Occupational Safety and Health Administration (OSHA) issued a memorandum in 2018 announcing that agency inspectors are now authorized to use drones to collect evidence during inspections in certain workplace settings. As of now, the employer must be made aware of this and grant consent. However, OSHA is seeking a Blanket Public COA from the FAA to be able to use the drones anywhere in the country.
During 2018, OSHA reportedly used drones with cameras to conduct at least nine inspections of employer worksites. The drones were primarily used following serious employee injuries at worksites that were considered too dangerous for OSHA inspectors to physically inspect. This included a building collapse, a combustible dust blast and a chemical plant explosion.
Drones quickly provide OSHA inspectors a detailed view of a facility, drastically increasing what can be viewed. This raises a number of questions.
Historically, employers are advised that if an OSHA compliance officer arrives at their company, they should escort them directly to the location they are requesting to see. OSHA is permitted to investigate anything that is in “plain sight” but cannot just freely explore the worksite. The use of drones with cameras might identify more hazards than the traditional walk around would.
During a typical OSHA inspection the employer is encouraged to accompany the inspector. This includes taking the same pictures, measurements and other data so that the employer obtains the same information as the inspector gathered during the walk around. When a drone is used this becomes extremely difficult to accomplish. Prior to giving consent, an employer should ensure that:
·      they have a voice in establishing the drones flight plan
·      all photographs and videos will be shared
·      the issue of employer’s trade secrets is addressed.
Under OSHA’s Multi-Employer Worksite Citation Policy, more than one employer can be held liable for a hazardous condition. This is common on construction sites. Can a General Contractor give consent for drone use during an inspection involving a worksite involving multiple employers? Who has authority to grant consent?
The use of drones is not going away. They are being used by contractors to get the job done more efficiently, cost-effectively and safer. OSHA is likely to expand the use of drones from worksites that are considered too dangerous for OSHA to inspect, to use in more routine inspections. Employers need to be prepared for their arrival and continued use.