Crain's op-ed: Harco conviction sets dangerous precedent

Dive Brief:

In an op-ed piece for Crain's New York, attorney Brad Gerstman wrote that the recent criminal conviction of New York contractor Harco Construction for a jobsite death was unfair and has set a dangerous precedent.
Gerstman — whose firm represented Harco in the past — wrote that Manhattan District Attorney Cyrus Vance Jr. created "an overreaching strict liability standard" for general contractors that could make them unjustly liable for jobsite deaths.
Harco Construction was recently convicted of manslaughter and criminally negligent homicide after a 13-foot trench collapsed and killed the worker of one of Harco's subcontractors.

Dive Insight:

Gerstman called the court decision "a perverted version of strict liability" and predicted that "the floodgates to criminal prosecution" would open and allow prosecutors to enforce "draconian settlements." He also said that even if a company was not convicted, the legal costs and negative impact to its reputation would be punishment in and of itself.

Harco was found guilty last month in the death of Carlos Moncayo, the employee of its subcontractor Sky Materials Corp. The court could have levied the maximum fine of $35,000 against Harco, but chose to sentence the company to pay for a construction safety ad campaign, produced in English and Spanish. After sentencing, however, a Harco attorney said the company would not comply with the order. Instead, he said, Harco would appeal the guilty verdict. The court could fine Harco $10,000 for refusing to pay for the PSA.

New York state officials called the conviction a "landmark" ruling and said it sent a message to other construction firms that "managing a project from afar does not insulate a corporation or general contractor from criminal liability." It was the Harco case, in fact, that led Vance to create the city's construction fraud task force, which he said would focus on all levels of corruption and safety violations.

Deaths overall are due to lax safety measures but immigrant deaths are disproportionately higher. Unsafe working conditions for many immigrants were left unchecked because workers did not want to make a fuss and risk exposing their undocumented status.