Latin Lament

ALFREDO ALVAREZ'S LAST WORDS were, “Help me, I'm going to die. Talk to my family.”

At the time, Alvarez was an employee of T.C. Construction Co., a San Diego–based general contracting firm that was doing waterline tie-ins for Brookfield Homes' Windingwalk Community in Chula Vista, Calif. Alvarez, a pipe layer with about a year of experience, was doing cleanup work in a ditch. His best friend, Ernesto Ramon Torres, was operating a Caterpillar backhoe excavator nearby. Unfortunately, Torres was not formally trained to operate the machine.

“This was everybody's worse nightmare,” says John W. Norman, who at the time was a project manager at Brookfield Homes. Norman now heads the company's land division in Roseville, Calif. “We had stressed safety before the accident, but it comes down to the people in the field.”

According to the accident report by the California division of OSHA, Torres mistakenly put the backhoe in reverse at full throttle, causing the 20,000-pound machine to plunge into the ditch. Alvarez was crushed. T.C. Construction was fined $8,060. (The company did not return calls for comment or to say whether it is contesting the fine.)

It probably would be comforting to some if we could say this accident was an aberration. But there is no comfort in the harsh reality: Hispanic workers are twice as likely to be killed on construction sites as non-Hispanics, says The Center to Protect Workers' Rights.

“The sad commentary is that we have not done a lot of research into this issue,” says Kenneth “Skip” Guarini, owner of Englewood, Colo.–based OMI Safety Services, a consulting firm that helps residential builders evaluate their safety programs. “There is no good data to lean on.” According to government statistics, Hispanics account for 20 percent of the construction workforce, but Guarini says that if you look at residential construction in border states such as California, Texas, and Nevada, that number is probably closer to 90 percent. “I can tell you that we are in the field every day, and we see a far greater number of injured Hispanic workers simply because we are seeing a greater number in the workforce.”

The Bureau of Labor Statistics (BLS) and OSHA said recently that the number of accidents among Hispanic workers is falling. According to the agencies, fatal work injuries to Hispanics increased each year from 1995 to 2001, but decreased in 2002 and 2003. In 2003, 791 Hispanic workers in all occupations were fatally injured at work, down 12 percent from the a high of 895 in 2001. This trend also applies to Hispanic workers at construction sites, say industry officials. But Dawn Mata Crane, chairwoman of the Hispanic Contractors Association in Austin, Texas, says this is debatable: “The numbers are down among [U.S.]-born Hispanics, but the numbers for immigrants are staying the same or ... going up.” One reason we cannot rely solely on OSHA's numbers, says Crane, is that the agency tracks only those workers who died on site. Those who died days later in the hospital are not counted.

The home building industry is a complex mix of tiered relationships that includes contractors, subcontractors, and sub-subcontractors. And an injured worker usually has to navigate the morass of finger pointing and the blame game. “If you look at residential builders—any of the big guys—they have virtually no employees involved in the construction of a home,” Guarini says. “So when we are evaluating the safety efforts on a home site, we are really looking at the work of subcontractors. When you look at subcontracting, you may be looking at a sub who also has no employee involved ... and, in fact, may have subbed out the work to another tier. That subcontractor may have gone out and found himself day workers who are not affiliated with anybody.” In such cases, he says, workers are given tools for which they have no training and are seldom issued eye-wear or hard hats. “There is no insurance and no documentation to determine if the worker is legal,” Guarini says. “If he gets hurt, the chance of that injury becoming reportable is in the neighborhood of less than 30 percent.”

This scenario is a major factor in the high fatality rate, and it leads to other problems, says Rich Cunningham, executive director of New Brunswick, N.J.–based New Labor, a nonprofit group that trains and educates Hispanic workers. “The biggest problem is that Latino workers are primarily employed in subcontractor work relationships,” he says. “So it's complicated by the fact that the relationship is indirect, through temporary employment agencies or third-party labor contractors. There is not as much direct association, which lends itself to these problems.”

Compounding the problem further is that OSHAis not set up to do inspections at these types of sites, where the relationship between day laborers and contractors is vague, says Amy Sugimori, an attorney with the National Employment Law Project in New York City. As evidence, Sugimori points to a Government Accountability Office report on the Department of Labor and OSHA. “One of the things [the report] concluded is that OSHA is really structured to understand a certain kind of relationship and look for a certain kind of employer during inspections to figure out who is responsible if somebody gets hurt,” she says. “But because of multiple-layered subcontractor relationships and the very short-term nature of the relationship of the worker and contractor, often OSHA doesn't even know where it should be looking to find out if there are violations that need to be fixed [and who should be held responsible].”

OSHA's own numbers seem to support this. Take Region 6, for example, which includes Arkansas, Louisiana, New Mexico, Oklahoma, and Texas. The number of residential inspections OSHA has conducted from fiscal year 2002 to the present is 314. During the same time, the agency made 5,380 special trade contractor inspections. John Miles, OSHA Region 6 administrator in Dallas, admits that the agency has not done many residential inspections but says there is a reason for that. “The job OSHA has to do is massive,” he explains. “And when you look at general industry and construction, with the number of people you have, you can't do all the jobs.” That's why OSHA must form alliances and do emphasis programs that stress safety, he says.

And it's not only in Region 6, says Miles. “You go in the state of Florida, Georgia, and even in Virginia, residential builders seldom, if ever, see a compliance officer. And if they do, it's some kid who doesn't even know [the] regulations. He finds two or three things that are obvious, writes them a citation with a $1,500 fine, they go to an informal conference and have it reduced to $500. That is absolutely the norm. There is no consequence, so what the hell does the builder care if he gets a citation?”

This brings up two important questions: Where do builders fit into this morbid tale? What effect does the accident fatality rate have on their business? The answers depend on who is answering the questions. A builder could share some of the liability in accident cases, but that link has to be proved, and Guarini is convinced that it rarely happens. “It really depends on the state they're in,” Guarini says. “Yes, the builder's risk of a lawsuit is always there, but it's fairly remote. The risk of the individual's medical expenses actually working its way up to the builder is also fairly remote. So [the builder's] risk is minimal, and they know that.”

Cunningham sees it differently. “[Builders] do have responsibility,” he says. “Ultimately, when OSHA evaluates who is responsible, they are going to look at who has control of the work site. So if an injury occurs, the sub and the general contractor can be responsible.” And the liability does not have to result from an accident.

In 1996, OSHA conducted an inspection of a David Weekley Homes development in Westminster, Colo., and issued the builder six “willful” violations relating to safety programs, hard hats, scaffolds, fall protections, and ladders. Weekley had subbed out work to a general framing contractor, who then subbed out the work to three subcontractors. Nevertheless, “Weekley was the ‘controlling employer' at the work site and therefore, could be held responsible under the multi-employer work site doctrine … ,” the OSHA Review Commission said in its decision. A fine of $221,500 was proposed, but it was reduced to $9,000. Still, you don't have to be a genius to see the potential legal problems that could have resulted had there been an accident or a death.

“We have a multi-employer policy, which is really complex,” OSHA's Miles explains. “If the builder or general contractor was aware of what was going on [at a jobsite], they can be cited as well as the subcontractor. And we look to try to do that because obviously the people with the money are the big contractors and not the subs.”

“Liability issues will be the big difference,” Sugimori says. “If one of the questions is whether there could be more severe penalties or serious consequences of people being injured or killed, that would make a big difference.” Sugimori is optimistic and already sees builders paying more attention to injury and death rates among immigrant workers. “In some industries, we see a trend toward employers taking the high road, setting the standards and knowing that it will be harder to compete,” she adds.

“Home builders need to lead by example, first by having solid safety programs for their own associates and exposing their subcontractors and suppliers to some of the programs and tools that are out there designed to educate in the area of safety,” says Brian Shields, division president of Technical Olympic USA in Austin, Texas. “Secondly, they need to require anyone working on their jobsites [to] do so in a safe manner or ask them to leave the site.”

Crane says that builder responsibility should carry over to their subs, too. “Safety lies with the subs doing the work, but the primary builder can do a lot to help,” she notes. Consider the safety records of the subs you do business with and try to avoid those that use day laborers, she advises. Crane also says that sometimes builders may have to use the more expensive sub who has a solid safety program in place, as it will save money in the long run. “It's cheaper up front to be preventative.”

Ignoring safety standards at your jobsites is like playing a dangerous game of chance.

To hear safety consultant Kenneth “Skip” Guarini tell it, most builders don't particularly care about jobsite accidents because liability hardly ever lands on their doorsteps. The builder's risk is minimal at best, he says. Many examples seem to support his theory.

In the T.C. Construction accident at Brookfield Homes, for example, subcontractor T.C. was fined $8,060, but the builder was not. And in the David Weekley OSHA case where proposed fines totaled $221,500 for violations committed by the builder's subcontractors, Weekley was able to have the fines reduced to $9,000—less than five percent. This is typical, Guarini says: OSHA issues the citation, and the builder has the fine reduced to a pittance.

But sometimes the case isn't that simple and the builder is unable to avoid a hefty bill. In one Colorado case a few years ago, a national builder had to pay $5 million in a workers' comp insurance claim when a worker fell off a roof and broke his neck. None of the parties involved had workers' comp, and in Colorado an individual is allowed to “swim upstream” until he bumps into the first entity that does.

Though these outcomes are unusual, lawyers and government officials believe that more-severe penalties for builders who experience accidents on their jobsites are the solution to the high rate of construction accidents and deaths.