In April 2015, Diana Florence was a longtime prosecutor in the Manhattan District Attorney’s office thinking about retirement. But a phone call—about the death of an immigrant laborer at a building site—changed her plans. And it went on to upend how New York State addresses construction fatalities.
In April 2015, Diana Florence received an unusual call. She had worked at the Manhattan District Attorney’s office for almost 20 years, having spent most of her career prosecuting white-collar crimes and corruption cases. She was thinking about retirement and looking forward to spending more time with her two middle-school-aged children.
But the phone call—about the death of an immigrant laborer at a building site—changed her plans. And it went on to upend how New York State addresses construction fatalities.
Seven years after that phone call, on Dec. 23, 2022, Gov. Kathy Hochul signed a bill spearheaded by Florence that raises the financial penalty for employers found criminally liable for the death or serious injury of a construction worker. The legislation will raise fines by 50 times from their previous level, up to $500,000, for convictions related to a worker’s death and injury.
It comes at a time when both the city and state are planning to ramp up development in the face of a housing shortage, with Mayor Eric Adams pledging to “get stuff built” and the governor setting a statewide goal of building 800,000 new homes over the next decade. “This legislation will add a new layer of accountability for safety protocols and will establish important protections for the individuals who do this vital, difficult, and often dangerous work,” Hochul said after signing the bill.
“Carlos’ law is an important step forward in disincentivizing unscrupulous companies from putting profits before people,” Florence said after the governor signed the act into law. But, she noted, the hard work still lies ahead. “It is only the first step. Unless prosecutors consistently pursue criminal charges, this victory will be largely symbolic.”
Criminal prosecutions, let alone criminal convictions against construction contractors, are extremely rare. More typically, they are handled civilly through lawsuits alleging safety violations, Florence said in a recent interview. It is especially difficult to pursue individuals at the top (developers, the CEO), as there are many layers of accountability and usually not enough evidence to hold them accountable.
In addition to the conviction that Florence secured against Harco Construction, the Manhattan DA has had one other successful conviction: a manslaughter guilty plea from SSC Highrise for the death of a worker who fell from a 39th-floor scaffold in 2016.
The Manhattan DA’s office confirmed with City Limits that they currently have five open cases where a construction worker was injured or died on the job. “Workers risk their lives to make sure Manhattan continues to be a global economic hub,” Manhattan D.A. Alvin Bragg said in response to the passing of Carlos’ Law. “They deserve to have the strongest protections under the law, and this legislation will significantly increase our ability to hold bad actors accountable who put their employees in harm’s way.”
A representative from the Bronx District Attorney’s office said that within the last 20 years, it has no record of charges for criminally negligent homicide in matters involving a construction site fatality. They plan to dedicate more resources to investigate these cases in the future and are currently investigating the death of Linden Samuel, a construction worker who died on the job in the Bronx in December 2022, the rep said.
Brooklyn DA Eric Gonzalez brought criminal charges in the 2018 death of Luis Sánchez Almonte, who was killed after a wall collapsed at a construction site in Sunset Park, and in another construction worker fatality in 2015. Gonzalez’s office declined to say whether it is currently pursuing any similar cases, saying they generally don’t comment on active investigations. The offices for the Queens and Staten Island district attorneys did not immediately respond to City Limits’ questions.
‘More than just an accident’
The origins of Carlos Law (S.621B/A.4947B) started with a call from a homicide assistant in the Manhattan DA’s office about the death of an immigrant laborer at a Manhattan construction site who had been killed in an on-the-job accident. The assistant was ready to close the case that, at first glance, didn’t appear to be a typical homicide. But the assistant asked for a second opinion from Florence, who had developed expertise in safety regulations and construction.
The victim was Carlos Moncayo, an Ecuadorian immigrant living in Queens. Moncayo was just 22 when he was killed on April 6, 2015, at a construction site in Manhattan’s Meatpacking district, when the dirt walls of an approximately 13-foot trench he was excavating collapsed on top of him. It had all the earmarks of a tragic accident. But, as Florence soon discovered, Moncayo’s gruesome death could have been easily preventable if contractors had followed basic safety precautions.
Moncayo’s case was unusual: One of the police officers responding to the scene was a lieutenant who had worked in construction as a young man. He was knowledgeable about construction safety procedures and quickly identified the fatal hazard: the trench Moncayo was digging had not been adequately reinforced.
Occupational Safety and Health Administration (OSHA) trench safety measures require that trenches over 5 feet require a protective system. One way is to slope the trench so that the trench wall is at a safe angle. Another way is to shore it up, meaning installing supports to prevent the soil from caving in. The trench Moncayo was digging had neither protection.
After taking the call, Florence went directly to the construction site where she interviewed co-workers, managers, and the police lieutenant who had noted the safety hazard. “This was more than just an accident,” she said she quickly realized.
As Florence interviewed witnesses, the story came together: Moncayo was an undocumented immigrant working at a nonunion construction site. The general contractor, a firm called Harco Construction, had engaged in significant safety violations—including failing to shore up the trench—that led to Moncayo’s death.
His case is emblematic of larger trends. In the construction industry, nonunion job sites are the most dangerous. In 2020, the most recent year for which complete data is available, 79 percent of workers who died on private work sites were working nonunion; and Latino workers were more likely to die on the job, according to data collected by the New York Committee for Occupational Safety and Health (NYCOSH) which issues an annual report on construction fatalities In New York State.
In 2015, when Moncayo died, the number of such fatalities soared as high as 25. This previous year, 22 people, almost all of them working at nonunion construction sites, were killed in New York City, according to data collected by the state’s Department of Labor. This data registry was only created in 2020 due to legislative reform requiring the state to maintain a public database of construction fatalities.
Unlike similar incidents, Florence said that in Harco’s case, she was able to assemble clear evidence indicating that senior executives were aware that unsafe working conditions were occurring. Most tellingly, the on-site construction manager had left an email trail behind: A month before Moncayo’s death, he had emailed his superintendent at Harco, alerting him that working conditions at the site were hazardous. The superintendent dismissed the warning. The construction manager, evidence later showed, was ordered to stop talking—or quit. The construction manager decided to quit. A month later, Carlos Moncayo was dead.
Florence knew she had the evidence to bring a criminal prosecution against Harco Construction. Her office was initially hesitant, she said. For one thing, Harco, a multimillion-dollar company, could retain top defense lawyers to defend it. Ultimately, however, she prevailed and was permitted to bring a criminal indictment.
And despite the novelty of accusing a company of criminal negligence in an employee’s death, she was able to win a conviction. Justice A. Kirke Bartley Jr. of the State Supreme Court in Manhattan found Harco Construction guilty of second-degree manslaughter, criminally negligent homicide, and reckless endangerment. Attempts to reach Harco for comment were not successful by press time.
It was a rare conviction, as criminal charges have been hard to win against general contractors. Florence felt victorious. At the time of the verdict, she felt justice was served.
Her feeling of victory faded when the judge announced the punishment.
The judge sentenced Harco to pay a $10,000 fine, the maximum penalty for any company convicted of a felony in New York State. “For companies like Harco Construction, $10,000 is Monopoly money,” said Cyrus B Vance Jr., the Manhattan District attorney in response to the trial’s outcome. “The fine was not even payroll for one day of this project,” said Florence.
In response, Florence collaborated with labor unions to draft legislation that came to be known as “Carlos’ Law.” It establishes much higher fines for corporations that are convicted of crimes of negligence relating to a worker’s injury or death. The bill was introduced in 2017 and passed in the New York State Assembly. But it stalled in the State Senate, where Republicans then held a majority after real estate groups lobbied against it.
After five years of negotiations, and after Democrats took control in the state’s upper house, the bill finally passed in the Senate in June 2022.
“A young man was cut down in the prime of his life thanks to gross negligence on the part of a contractor,” said New York State Sen. James Sanders Jr., the bill’s sponsor in the Senate. “Contractors may feel that is the cost of doing business. And we want to raise that cost. We want it to be closer to the cost of human life rather than just something on your taxes that you can write off.”
Some compromises were made along the way: the bill’s previous version, which contained a much higher minimum fine, received criticism over its potential to harm smaller contractors, including minority and women-owned businesses. Louis Coletti, president of the New York Building Trades Employers Association, argued that amendments should be made to the bill, including eliminating the minimum amount and raising the maximum number of potential fines. The state legislature ultimately lowered the penalty to a maximum of $500,000 instead of a minimum.
Charlene Obernauer, executive director of NYCOSH, pushed back at the criticism of the original bill. She argued that the likelihood of a company being criminally indicted is extremely low. “[Carlos’ Law] doesn’t make it easier for a company to be found guilty of criminally negligent homicide. It just makes the penalties harsher,” she said.
Obernauer explained that while NYCOSH can draft multiple pieces of legislation, “depending on the will of the governor, the will of the mayor, you can’t really go too hard on real estate in New York and be effective, unfortunately.”
“Real estate is a powerful player in New York,” she continued. “And they certainly are listened to by all levels of government.”
Florence says Carlos’ Law does not answer all the problems facing the construction industry, as it does not put more safety standards in place. But for people working on the job, the bill offers new hope. “What we want is to do better at trying to prevent the death or the injuries,” said John Simmons, who is now in a union but who worked as a nonunion construction worker for almost four years.
Enforcement of legislation and construction safety regulations are also significant concerns among construction safety advocates.
“There are a million laws on the books already about what a construction site must be like,” said Oona Adams, assistant director of organizing at the Construction and General Building Laborers’ Local 79, which helped push for the new law.
“There are laws about making sure that workers are tied off [to safety harnesses], and yet we see catastrophic fall after catastrophic fall with workers,” Adams continued. “And it’s not because there isn’t a law. It’s because the workers don’t have the power to make that law meaningful.”