When it comes to worker health and safety, preventing injuries and illnesses is the number one goal. It was for this very purpose that Congress enacted the Occupational Safety and Health Act (OSH Act) and tasked the Occupational Safety and Health Administration (OSHA) with setting and enforcing strong workplace standards. But when preventative measures fail and workers are harmed, agency enforcement actions against the employer (while necessary) don't provide legal redress to workers or their families for the damages they've incurred. Instead, recovering damages often necessitates they hire a private attorney to help them navigate this complex area of the law.
The attorneys who take these cases play a critical role in workers' rights advocacy, and their experience offers a unique perspective that can help advocates better understand the challenges workers face and opportunities for overcoming them. Recently, I had the pleasure of speaking with one such attorney – Richard Jaffe, partner of Cohen & Jaffe, LLP in New York – and here's what he had to say during our conversation:
Q. Tell me about your firm. What types of cases do you handle and whom do you typically represent?
Cohen & Jaffe, LLP is a small New York firm that handles a wide range of personal injury, malpractice, and employment law cases on behalf of individuals injured by the wrongdoing of others. Within that realm, I often represent workers injured on the job due to the negligence of their employer or another responsible party.
Q. What is your perspective on Fed-OSHA's efforts in New York?
OSHA is an under-resourced agency with too few inspectors compared to the number of worksites it oversees. OSHA has only approximately 2,200 inspectors in federal and state-plan states combined to inspect over 8 million worksites that employ roughly 130 million workers. Furthermore, in 62 percent of over 10,000 reports that OSHA received in 2015, OSHA allowed the employer to investigate itself and produce a report under the agency's Rapid Response Investigation (RRI) procedures. As I see it, OSHA only gets involved after a worker has been seriously injured or killed on the job. Even then, OSHA rarely pursues criminal charges, although I hope to see an uptick in criminal investigations for violations of the OSH Act under the expansion of the worker endangerment initiative announced by the Department of Justice and Department of Labor in 2015.
In addition to OSHA, some state agencies also face resource constraints that make it difficult for them to carry out their missions, such as the New York Department of Buildings (DOB). For example, because of funding shortfalls, the DOB is unable to ensure that every construction site has the proper permits. As a result, even major construction projects may lack valid permits.
Q. What are your thoughts on criminally prosecuting companies and/or executives under the state's general criminal law when their actions/inactions cause a worker's death or serious injury?
Generally, I support the idea of criminal prosecution under state law in egregious cases, but for state and local programs to operate effectively, they need to have meaningful authority to investigate or advise, conduct inspections, issue fines, pursue prosecutions, or shut down dangerous worksites. For example, in New York, during the 2015-2016 legislative session (and several prior sessions), a bill was introduced to establish a city-wide task force on construction safety. While a task force is a commendable idea, the bill only authorized it to "advise" the city by submitting an annual report with statistics of incidents and injuries on construction sites and recommendations for improving safety in the industry. A better model is the New York citywide Construction Fraud Task Force established by Manhattan District Attorney (DA) Iris Vance in 2015. Here, the task force works to identify, investigate, and prosecute crimes committed within the construction industry – from violations of safety standards and licensing requirements to extortion.
Q. As a volunteer Level III Emergency Medical provider (AEMT-CC) and firefighter on Long Island, have you ever responded to an incident at a worksite? What procedures are in place for relaying information about the incident to OSHA or other authorities?
Any time we respond to a call, we share information over a pager system. Because good information is critical in responding to an emergency, everyone listens intently to any information relayed. I have responded to a few calls for worker injuries. When responding to a worksite, first responders have no obligation to report injuries to OSHA. And even when I've reported violations to OSHA, the agency didn't send anyone out to the scene.
Q. When a worker is injured or killed on the job, can the worker or the family file a civil suit against the employer or another responsible party?
The only place a worker has a voice after an injury is in civil court, and even then, bringing a case can be an uphill battle. In New York, the state's workers' compensation law bars injured workers from filing a civil suit against their employers. However, if a worker sustains a "grave injury," he or she may be able to file a claim against another responsible party, such as the owner of the premises. The defendant in that claim can then file a third-party claim against the worker's employer. This legal maneuver is called "third-partying in" the employer.
For example, I represented a union electrician who innocently entered an elevator to go to lunch. The elevator dropped eighteen floors to the basement of the building, causing my client to sustain a knee injury requiring surgery and psychological injuries. My client could not file a suit against the employer, but he was able to sue other parties involved in the incident. The defendant in the action then "third-partied in" the employer on grounds that the employer's negligence caused the incident. Ultimately, I succeeded in arguing the case and recovered $1.5 million for the worker.
However, when a worker recovers damages in a civil suit, the workers' compensation law comes back into play by requiring the worker to pay back any money he or she received from a workers' compensation claim. This holds true even if the civil recovery is for pain and suffering, a type of damages not covered by workers' compensation.
Q. What would you like to see changed in New York to improve worker health and safety?
As a practitioner who often runs into legal and policy barriers, pinpointing one problem to fix is practically impossible. But near the top of the list is accountability. No one is held accountable. Employers aren't held accountable for negligence. Doctors who lie about worker injuries and interfere with workers' compensation claims aren't held accountable. And the agencies who are tasked with protecting people – OSHA and NY DOB – aren't held accountable.