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Nov 28, 2023

Scaffolding Deaths Are Claiming New York’s Immigrant Workers in an Industry Lacking Accountability

Juan Chonillo, a 44-year-old Ecuadorian immigrant, was working on a luxury

Juan Chonillo, a 44-year-old Ecuadorian immigrant, was working on a luxury Manhattan skyscraper in September 2017 when he plummeted 29 stories from a scaffold to his death.

The scaffolding platform holding Chonillo got stuck while being moved by a crane. After he released his harness to try and unjam the platform, the scaffold jolted, causing him to fall to another scaffold just above the sidewalk at 161 Maiden Lane. In 2018, a year after his death, SSC High Rise, a subcontractor working on the site under general contractor Pizzarotti, pleaded guilty to manslaughter. SSC High Rise broke building codes and violated guidelines from the scaffolding manufacturer by moving the platform while workers were still on it, according to an investigation led by the Manhattan District Attorney's Office.

The company paid a $10,000 corporate fine for its role in his death, the maximum penalty under New York state law. "Nobody got locked up. Nobody got a real punishment," said Elias Riera, Chonillo's nephew, who also works in construction. "I guess that means you can put somebody at risk, just plead guilty, and that's it." Chonillo, who left behind five children, was supposed to have that day off, said Riera. But after being called into work at the last minute, he left his home in Queens and headed to the job site of Seaport Residences, a 60-floor residential building in Manhattan's Financial District.

Pizzarotti had already received 10 safety citations from New York City's Department of Buildings (DOB) on the site since January of 2017, according to city records.

Riera said his uncle had been in the city's construction industry for more than six years. A few days before Chonillo's fatal fall, the two of them met up to play volleyball in the park, where Chonillo warned his nephew of the job's safety hazards. "He said, ‘Yo, a lot of people are dying in construction you guys. Make sure you put on a harness and tie it,’" recalled Riera. "And then a week later, he died."

Jobs involving scaffolding, those temporary structures blanketing New York City, are some of the most dangerous in a notoriously deadly industry. And Chonillo's story, of an immigrant worker whose death could have been prevented were it not for contractor negligence and a glaring lack of accountability, is just one of many.

So far, 2022 has proven one of the deadliest years for construction employees working at heights. This year nine workers have died on New York City construction sites, and five of these fatalities involved scaffolding or sidewalk sheds, with employees falling anywhere from 15 to 65 feet to their deaths, according to an Observer analysis of city data. While worker falls are consistently the most common cause of injuries and fatalities in New York City construction, in previous years fewer fatal falls involved scaffolding.

The leading cause of incidents at construction sites in 2020 and 2021 was worker falls, and scaffold, fence, or shoring installations were a third-leading cause, according to a DOB report (falling material was second). In February 2021 alone, eight construction workers were harmed while working with scaffolding, according to the Observer analysis of city data, with injuries ranging from ribs to lower back to neck.

The DOB points to a decrease in construction-related injuries and deaths in recent years as evidence its safety and enforcement initiatives are working. But while construction injuries and fatalities have fallen over the past four years, this trend also occurred in parallel with a decline in building due to the pandemic. Construction-related deaths fell from 14 to 8 between 2019 and 2020, as did the number of building permits and workers employed at New York City construction sites, by 11 percent and 16 percent, respectively. After 2020, the number of workers who died on construction sites began to increase as building activity and employment picked up again.

Barry LePatner, a New York City-based construction attorney, said the vast majority of contractors he encounters in his work act responsibly. But with such a high volume of construction going on in the city at any given time, he conceded "a lot of owners hire less than reputable contractors to come onto their projects who are less attuned to the importance of safety."

When owners and contractors flout safety, it comes down to money, said LePatner. "It's always somebody trying to save money, put it into their pocket, and beef up their profits."

A law that would impose higher penalties on contractors like the one cited in Riera's death is now awaiting the signature of New York Governor Kathy Hochul, who must sign it before the end of 2022 in order for the legislation to take effect. But Carlos's Law, named for a construction worker who was killed in 2015 and passed by the state legislature in June, continues to face opposition from New York's powerful construction and real estate industries. Hochul is currently reviewing the legislation, according to Justin Henry, a spokesman for the governor.

"We’ve got to get the governor to sign it, to make it into law now," said Francisco Moya, a New York City council member representing Corona, Queens, who introduced Carlos's Law in 2017 as a state assemblymember. "It would really shed light on workers in the shadows of this industry."

Scaffolding is a conspicuous feature of everyday life for New Yorkers, as common as corner-store bodegas or subway delays. New York City has more than one million buildings, and as of December had more than 13,000 active permits for supported scaffolds or sidewalk sheds, according to DOB data. There are hundreds more active permits for suspended scaffolds, the type of scaffolds that are suspended by ropes of a building, though the exact figure isn't known.

Though much of the scaffolding is used for laborers employed at construction sites, sidewalk sheds are erected to protect pedestrians from falling debris when buildings are undergoing construction, or are found to have safety violations on their facades. Since 1980, after a Barnard student was killed by a falling piece of terra cotta, the city has required regular inspections for buildings more than six stories tall. Rather than fix the issues right away, building owners typically put up sheds to start, which helps explain why there are more than 9,000 of them currently scattered throughout the city.

If you have information about negligent behavior in New York City's scaffolding industry, send an email to the reporters at [email protected] or [email protected]

The sheer volume of construction in the city at any given time drives demand for scaffolding.

"Why are there so many scaffolds in New York City? Because there's so much damn building going on in New York City," said Jeff Grabelsky, a former construction union official who now co-directs the National Labor Leadership Institute at Cornell University. The number of building permits issued in New York City reached a peak of 168,243 in 2017, close to double the number issued in the year 2000.

Incidents that occur on scaffolding are reflective of broader issues that have long plagued the New York City construction industry, which tends to employ vulnerable laborers who aren't unionized, and incentivizes contractors to award projects to the lowest bidder. Nearly one in four New York City workplace deaths occurred on a construction site in 2021, according to an analysis of Bureau of Labor Statistics data by the New York Committee for Occupational Safety and Health (NYCOSH), an organization advocating for immigrant workers’ rights.

In order for scaffolding to be erected on a construction site, a building's general contractor usually hires a scaffolding subcontractor, whose workers build and put up scaffolds for the use of companies working on the site. Some of the biggest names in the industry are the Bronx-based Colgate Scaffolding and Brooklyn's Silvercup Scaffolding, both of which were faced with safety incidents this year. A Colgate Scaffolding worker died in November while erecting a sidewalk shed, while Silvercup Scaffolding in July was indicted by the Brooklyn District Attorney over a scaffolding collapse which left three injured and a young woman with severe brain damage. Colgate and Silvercup did not respond to requests for comment.

Accidents most frequently occur on non-union work sites, which lack the standards of safety training and education on safety rights which are prevalent within construction unions. In 2018, more than 80 percent of construction fatalities in New York City occurred on non-union sites, according to a NYCOSH report.

Despite their disproportionate share of safety incidents, non-unionized work sites receive far less monitoring, in part because union workers don't fear retaliation for flagging safety issues. "It's more likely that a union member would file a complaint and bring that violation to the attention of the appropriate agency than a non-union worker," said Grabelsky.

Since 2005, any worker erecting a supported scaffold more than 40 feet high must first obtain a permit and undergo a 32-hour training course, according to Peter Amato, a certified site safety manager and former assistant commissioner at the DOB. Supported scaffolding refers to platforms connected and supported by pipes, and construction workers using the scaffolds must also complete a four-hour training course before working on them. Platforms suspended from above by cables or ropes are called suspended scaffolds, and workers setting them up must also finish a 32-hour course, said Amato, while their users are required to undergo 16 hours of training.

Scaffolding accidents are often the result of companies cutting corners and ignoring procedures designed to protect workers. Safety violations among New York City's scaffolding erectors are rampant, said Anthony Corrado, a former construction worker who founded NYC Safety Services, a safety consulting firm. "It's like a free-for-all," he said.

Scaffolders hardly ever tie their harnesses to something secure, said Corrado. Despite Occupational Safety and Health Administration (OSHA) requirements that call for most employees working above 10 feet to secure their harnesses, scaffolders only need the ability to tie off, as they have to be unclipped in certain instances to avoid getting caught up in construction materials. "They’ve now taken this to the point where they don't feel they have to tie off at all," said Corrado.

In addition to not being tied securely, scaffolders in New York City typically place just two wooden boards on a diagonal in order to walk between platforms while putting up levels of scaffolding. "No one is monitoring them," said Corrado. "Easily, they can fall to their death."

The scaffolding industry opposes the extra time and costs that new safety procedures and policies would create, Corrado said. "They could provide more planking, they could provide lifelines that string from one end of the scaffold to the other," he said. "Is it going to slow down the process and cost more money? Absolutely."

Meanwhile, accidents involving workers on scaffolding for other construction-related tasks occur when the platforms haven't been boarded up properly, according to Kevin Sullivan, OSHA area director for Long Island and Queens. Sullivan said he often sees cases where platforms either haven't been planked with enough boards or have been planked unevenly. "Sometimes, if you step on a board at the end, the whole board can flip up and people can fall that way," he said.

This happens because contractors simply don't want to waste time by bringing up enough planks up from a lower level, said Sullivan. "I think it's just really a lack of diligence," he said. And while the sides of scaffolding platforms usually have fall barriers, employers tend to overlook guarding the ends, which are often used as access points, added Sullivan.

Scaffolding jobs often go to immigrant workers who are unaware of how to advocate for better safety rights or are pressured by contractors to keep quiet about their concerns. "These people that own the companies, they tell workers ‘you can't say anything,’" said Riera. "And some of us are illegal, you know, and don't want to lose a job." The majority of fatalities OSHA sees in his areas are Spanish-speaking immigrants, Sullivan said.

"A lot of immigrant workers, particularly when you’re looking at lower wage workers, are conducting that kind of work," said Charlene Obernauer, director of NYCOSH. More than half of New York City's construction workforce, 53 percent, are immigrants, according to a 2021 report from the New York comptroller's office. Immigrant and undocumented workers are also more likely to be work on small, non-unionized sites, said Sullivan.

Some contractors with non-union work forces purposefully fail to educate their employees on safety rights, according to Arsecio Ludena, a construction worker living in the Bronx. "Training will explain to someone what to do if you run into issues," he said. "It opens eyes, and the contractors don't like that." Ludena, who moved to New York City 15 ago from Ecuador, mostly does jobs like plastering and tiling, avoiding work involving scaffolding because "it's more dangerous."

While the city's DOB and OSHA are tasked with inspecting New York City construction sites for safety-related issues, the mechanisms they have for holding bad actors accountable can fall short.

On Nov. 2, Raúl Tenelema Puli, 27, fell to his death while building a sidewalk shed at a construction site in downtown Brooklyn with a history of safety violations. Puli was installing a 30-foot I-beam for the shed when he fell 20 feet, according to DOB records. The general contractor overseeing the project, Galaxy Developers, had previously been cited six times by the DOB for construction safety enforcement issues at the site, and paid $11,250 in penalties. The subcontractor that employed Puli, Colgate Scaffolding, was fined $8,400 and $5,000 by OSHA in 2003 and 2008, respectively, both times for failing to comply with the agency's general requirements for scaffolds. Still, the companies remained in business. By Nov. 29, the DOB lifted a stop work order for the site after Galaxy provided a plan for how they planned to continue work at the site in a safe manner, and a subsequent DOB inspection of the site found no unsafe conditions.

In an emailed statement Galaxy said they were "deeply saddened" by the accident, and are cooperating with the DOB in an investigation. Colgate declined to comment about Puli's death. Several parallel investigations are ongoing related to this incident, involving the DOB, OSHA, and law enforcement partners, according to the DOB. The agency noted all construction fatalities in New York City are investigated for criminality, and said enforcement actions are still pending. OSHA didn't respond to a request for comment.

Researchers and labor advocates who have studied safety issues in the construction industry say there's often a nest of contractors and subcontractors employed under one general contractor and developer on a site, making it hard to hold employers accountable when scaffolding accidents occur. There may be 15 to 20 sub-contractors employed at one site if a project is large, such as a high-rise development, and seven to eight of those sub-contractors might be working on the site at the same time, estimated Louis Coletti, head of the New York Building Trades Employers Association of New York.

What's more, the penalties contractors receive pale in comparison to the revenues reaped in a billion-dollar industry. "The fines are very, very minimal," said Nadia Marin-Molina of the National Day Laborer Organizing Network (NDLON). "And the fact that developers continue to hire some of these contractors, whether it's general contractors or subcontractors, shows the disregard that they have for the workers."

State officials have raised concerns about safety oversight. An audit released by the New York state comptroller's office in September found violations issued by the city's DOB had not been effective in getting owners and contractors to address safety issues on their sites. Auditors visited 18 New York City building sites over a period of two months and found 77 safety violations across 16 of those sites. In some cases the DOB had previously issued violations that appeared to mirror what auditors found, suggesting owners and contractors had not fixed the safety issues despite warnings from the city.

Uncovering patterns of non-compliance led the comptroller's office to recommend the DOB use data tracking to identify high-risk contractors and proactively inspect problematic sites. "They can't inspect every construction site, every day…there is a finite number of resources. The question really comes to how they use the data they have available to prioritize where the highest risk is," said David Schaeffer, an audit manager with the comptroller's office.

Andrew Rudansky, a spokesperson for the DOB, said by email the department disagreed with the comptroller's report, and noted construction injuries have dropped by close to 33 percent since 2018, "thanks in part to our implementation of a first-in-the-nation safety training requirement for construction workers, and our robust enforcement of safety standards on work sites across the five boroughs." He said the suggestion the DOB is overstretched when it comes to safety enforcement is not true.

A separate Dec. 6 report by the New York City comptroller's office revealed the DOB is understaffed, with a 22.7 percent vacancy rate. While the city has authorized the department to hire 1,978 workers, it only employed 1,529 workers full-time as of October 2020. The DOB said it was seeking to cut staff shortages through recruitment efforts.

Up until 2015, the DOB required the presence of a site safety manager to oversee the safety of erecting supported and suspended scaffolding on buildings 15 stories or higher. But seven years ago, the department modified this obligation for facade repair projects, which commonly use suspended scaffolds, allowing a "qualified person" to oversee safety at certain times. The DOB noted the individual replacing a site safety manager must still possess a Site Safety Training (SST) Supervisor Card.

"I think that was a mistake and I told the DOB at that time," said Amato, who previously worked at the DOB, and who also has concerns about the lack of site safety managers for scaffolding erection at building sites under 15 stories. "That's a big fear of mine, that those low-rise buildings don't have the same requirements," he said.

Insurance companies, which pay out settlements when workers are injured, also have an incentive to police unsafe contractors in the industry. In theory, companies with more injured workers should pay higher premiums. But in practice, unsafe employers aren't penalized by rising rates.

Under New York state's scaffolding law, workers who are injured by a fall can file claims against building owners and general contractors, who are considered absolutely liable when a worker falls or is hit by a falling object. Block O’Toole & Murphy, which represents plaintiffs in these cases, publishes settlements ranging from $1 million to $15 million on its website.

Still, Tom Stebbins, executive director of the Lawsuit Alliance Reform of New York, which lobbies for reforms to the scaffolding law, argues it doesn't hold bad actors accountable, due to a strict liability standard that tends to award workers damages for falls, no matter who is at fault.

"If you have someone who's typically 90 percent responsible for the injuries to their employees, versus a company that is 10 percent responsible for the injuries to employees," those contractors are both treated the same under the New York scaffolding law, Stebbins said. "Because there is no comparative negligence, it's very difficult for the market to ascertain who is more safe or less safe."

Advocates of the scaffold safety law maintain that it's an important safeguard for construction workers in New York. "I think there's always some folks in the business community that are trying to do away with the Scaffold Safety law, but we maintain the position that it's an important protection for workers," said Obernauer, of NYCOSH.

Paul Meli, who oversees site safety and risk management for Triton, a New York cIty-based construction company, said labor shortages may contribute to safety issues. Earlier this year, 91 percent of construction firms said worker shortages were driving up costs, according to a September survey by the Associated General Contractors.

"People are doing a lot more with a lot less," Meli said.

Cost-cutting concerns aren't limited to major real estate companies and contractors. Co-ops and condo board owners, too, are seeing costs of scaffolding and sidewalk sheds rise due to the city's facade inspection laws, which were tightened in 2020 after Erica Tishman was killed by a piece of debris that fell from a 17-story building in Midtown. Following the death of Tishman, a prominent architect, the city ramped up inspections of buildings with facade violations and increased penalties for owners who fail to file facade inspections from $1,000 to $5,000 a year. It also imposed base penalties of $1,000 a year for owners who fail to correct unsafe conditions.

Though building owners won't cut corners, per se, they may seek to delay facade repairs if city regulations allow it, said Chris Alker, the vice president of building operations at AKAM, a building management company based in New York City. But renting scaffolding for long periods of time increases the chance workers could get hurt.

"The longer scaffolding is up, the longer work is happening; the longer work is happening, the higher propensity for risk," Alker said. "More people are climbing on the building for a longer period of time, and it's a numbers game."

While the safety inspection program is intended to protect pedestrians, the work facade repairs entail can prove deadly. Last month a worker fell to his death from an Upper West Side apartment that currently had permits open for facade repairs. He was installing netting around a supported scaffold on the 15th floor of a 23-story building when he fell to the sidewalk shed below.

While attempts have been made to address and prevent scaffolding fatalities, many have stalled or been thwarted, often due to the power and influence of New York City's real estate developers.

Carlos Moncayo, a 22-year-old Ecuadorian immigrant, was buried alive in 2015 when a Manhattan construction site collapsed upon him. As was the case with Chonillo's fall two years later, the contracting company found responsible for Moncayo's death only paid $10,000 in penalties. Carlos's Law, the proposed bill named after Moncayo, looks to raise corporate penalties to a minimum of $300,000 for misdemeanors and $500,000 for felonies involving a worker fatality or injury.

"I fought really, really hard to move that bill in the Assembly," said Moya, the New York City Council member who introduced the law five years ago. He characterized the mindset of New York's construction industry as "people over profit." Although the bill eventually was approved by the state legislature, it was not without opposition from construction contractors afraid how it might increase their cost of doing business. "It's always been about the influence that the real estate community and insurance companies all had in Albany," said Moya. "That was really preventing this legislation from coming through."

One of the real estate industry's biggest lobbyists, the Real Estate Board of New York, initially opposed the bill over the potential liability of developers, but later supported the law after its language was amended.

Assemblymember Rodneyse Bichotte Hermelyn, who co-sponsored the bill and represents Brooklyn's Flatbush and Midwood neighborhoods, hopes Carlos's Law will be a deterrent to construction companies who feel they can put workers in vulnerable circumstances without suffering legal consequences. The issue is personal for Bichotte Hermelyn, whose brother Wagner was disabled for life after falling seven stories from a scaffold on a New York City construction site 30 years ago. "We know scaffolding is one of the most dangerous and widely used devices in New York City," she said. "It's temporary, it's high, other elements like weather, shoddy oversight and improper installation add to the danger."

But the bill continues to face opposition from the developing community. On June 30, the Building Trades Employers’ Association (BTEA), which represents 26 contractor associations across the U.S., sent a letter to Hochul urging her to reconsider aspects of Carlos's Law, such as making the proposed fines a maximum instead of a minimum. The BTEA did not respond to requests for comment.Legislators and construction experts say the strong ties between political figures and the contracting community has helped kill oversight and regulatory laws. Since 2015, the BTEA has made nearly $240,000 worth of campaign donations in New York State. The largest contribution was a $40,000 donation made to Andrew Cuomo during the 2018 gubernatorial election, according to records from Open Secrets, a website tracking campaign donations and lobbying.

Meanwhile, the New York chapter of American General Contractors, a construction association, poured more than $14,000 into the 2021 to 2022 election cycle, while the Real Estate Board of New York spent $160,000 annually on lobbying between 2015 and 2019. Other groups representing contracting interests in New York, such as New York Building Congress and the General Contractors Association of New York, respectively, spent $60,000 and $30,000 on lobbying in 2022.

With an impasse in Albany, regulatory agencies like the DOB and OSHA have also attempted to implement solutions to prevent fatal scaffolding falls throughout the city. The DOB has run campaigns to raise awareness of the danger of working at heights, including a facade and scaffold safety blitz in 2021, and last year the New York City Council passed a law prohibiting the use of stand-off brackets, a device used to install suspended scaffolds the DOB found had been a factor in safety incidents.

After a surge of construction falls in 2017, New York City passed a law requiring construction workers at major job sites to earn site safety training (SST) cards, which are needed to enter larger construction sites. SST cards can be earned by taking OSHA training courses, which include fall prevention and supported scaffold training.

"Every worker has to have (the card)," said Chad Rynkiewicz, vice president of Laborers’ Local 79, a New York construction union. However, his union often finds contractors who disregard the required hours, looking to expedite work and bypass training costs. "Companies out there don't make workers sit through the classes, they just issue the cards," said Rynkiewicz.

In January, a widespread scheme to distribute fake identification documents, including safety cards, was uncovered after an investigation by the New York State Inspector's office of a construction site at Manhattan's Javits Center. A few months later, the DOB revoked SST cards given out by EHS Academy, which provided construction training courses, after announcing the academy had failed to comply with the department's requirements for authorized course providers.

And despite advancements that have been made over the years regarding scaffolding technology and tools aiming to decrease safety risks, they’ve largely been unimplemented, according to Corrado, the construction safety consultant. "People have invented posts, lifelines, various things to make scaffolding safer," he said. "But again, regulation would have to be changed."

Introducing any new safety requirements in the entrenched industry "would be like reinventing the wheel," Corrado said.

Update: This story has been updated to include information on the Real Estate Board of New York's lobbying activities.