February 4, 2019
Work Site Fall Yields $7.68 Million Award in Middlesex County
A worker who fractured several vertebrae in an on-the-job fall was awarded $7.68 million on Jan. 15 in Schultz v. Atlas Homes LLC.
The jury’s apportionment of some liability to the plaintiff reduced the sum, though the plaintiff now is seeking interest, fees and costs.
According to the plaintiff’s lawyer and electronic court documents, on April 27, 2015, plaintiff Duane Schultz was working at a residential construction site in Spotswood for a subcontractor to defendant Atlas Homes, the North Brunswick-based builder that owned the property and the general contractor at the site. While working on the second floor, Schultz fell backwards off the building, about 20 feet, said Schultz’s lawyer, James Pagliuca of Gill & Chamas in Woodbridge.
Schultz was hospitalized with three total vertebral fractures at the thoracic and lumbar levels and four rib fractures, and underwent a three-level fusion with the implantation of rods and screws, Pagliuca said.
The suit named Atlas and its owner, Arthur Lauri II. It claimed that the defendants violated Occupational Safety and Health Administration standards by failing to use fall-protection measures and temporary railings at the site. The defendants contended that the plaintiff’s own negligence contributed to the fall, and contended that it was the subcontractor’s responsibility to ensure the use of worker safety measures, according to documents.
After a six-day trial before Middlesex County Superior Court Judge Lisa Vignuolo, the seven-member jury attributed 85 percent of the fault to the defendants and 15 percent to Schultz, and awarded $7.5 million in non-economic damages. The judge added $177,709 in past medical expenses. Schultz’s liability reduced the verdict to $6.53 million.
A proposed order of judgment filed by Pagliuca on Jan. 17 seeks $697,305 in prejudgment interest, as well as attorney fees and costs, based on the offer-of-judgment rule because the verdict was more than 20 percent higher than a $1 million offer of judgment made by the plaintiff in 2016, according to documents.
The defendants were covered by Cumberland Mutual Fire Insurance Co. and defended at trial by William Bloom of Methfessel & Werbel in Edison. Bloom didn’t return a call about the case.
Pagliuca handled the case along with Andrew Chambarry of the same firm.
— David Gialanella
January 29, 2019
U.S. DEPARTMENT OF LABOR INVESTIGATION RESULTS IN $158,139 IN BACK WAGES AND DAMAGES FOR 50 EMPLOYEES ON MASSACHUSETTS CONSTRUCTION PROJECT
U.S. DEPARTMENT OF LABOR INVESTIGATION RESULTS IN $158,139 IN BACK WAGES AND DAMAGES FOR 50 EMPLOYEES ON MASSACHUSETTS CONSTRUCTION PROJECT
BOSTON, MA – After an investigation by the U.S. Department of Labor's Wage and Hour Division (WHD), the U.S. District Court for the District of Massachusetts has ordered P & B Partitions Inc. and its owner Ronald H. Biglin Jr. to pay $158,139 in back wages and liquidated damages to 50 employees, to resolve willful violations of the Fair Labor Standards Act (FLSA). The company – based in West Berlin, New Jersey – was also assessed $33,880 in civil money penalties.
The employer worked on the City Square apartment construction project in Worcester, Massachusetts, between August 2016 and April 2018. WHD investigators found that the employer paid employees - including laborers, dry wall hangers, carpenters, and a lull operator - straight time in cash when they worked overtime hours. In addition, the employer failed to maintain records of the cash payments, failed to track accurately employees' work hours, and falsified payroll records.
"Employers are responsible for paying their employees all the wages they have legally earned," said Wage and Hour Division District Director Carlos Matos, in Boston. "The U.S. Department of Labor is committed to protecting the American workforce, and will continue to provide education and tools to employers to help them understand their responsibilities and how to comply with the law."
"The U.S. Department of Labor will take appropriate steps to enforce the law to ensure that contractors pay their employees correctly and don't break the law to gain an unfair advantage over law-abiding competitors," said Regional Solicitor of Labor Maia Fisher, in Boston.
Read the complaint and the consent judgment and order.
Employers who discover overtime or minimum wage violations may self-report and resolve those violations without litigation through the PAID program. For more information about the FLSA and other laws enforced by the Wage and Hour Division, contact its toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at https://www.dol.gov/whd including a search toolto use if you think you may be owed back wages collected by the Division.
# # #
Acosta v. P & B Partitions Inc. and Ronald H. Biglin, Jr.
Civil Action Number: 1:18-cv-12398.
Agency Office of the Solicitor Wage and Hour Division
Date January 29, 2019
Release Number 18-1868-BOS
Contact: Ted Fitzgerald
Phone Number 617-565-2075
Contact: James C. Lally
Phone Number 617-565-2074
August 10, 2018
NJ Labor Department, USDOL Ink Agreement to Work Together to Protect Businesses and End Exploitation of Workers through Misclassification
TRENTON – The New Jersey Department of Labor and Workforce Development and the U.S Department of Labor pledged a historic new level of cooperation to protect New Jersey’s economy by signing an agreement Friday to work together to end illegal employee misclassification.
By misclassifying workers as independent contractors – workers who file 1099s, not W2s – employers avoid paying unemployment and disability taxes, costing state and federal taxpayers untold millions of dollars. In New Jersey alone, auditors have identified more than $80 million in underreported employer contributions since 2010.
“In New Jersey, we promote fairness and fight discrimination. Today’s action is another great step forward to ending a practice that is not only unfair, but illegal. We are proud that this joint state-federal action will help protect New Jersey workers by putting an end to unfair labor practices,” said Gov. Phil Murphy.
Workers misclassified as independent contractors are ineligible for the wage and overtime protections afforded to employees, and can find themselves underpaid and without basic labor and OSHA protections.
Additionally, independent contractors are not covered under the National Labor Relations Act, which makes it more difficult for them to organize and collectively bargain with an employer.
“One of the Labor Department’s core responsibilities is to safeguard workers from unscrupulous business practices, and to support responsible businesses by making sure everyone plays by the same set of rules,” said Labor Commissioner Robert Asaro-Angelo. “This partnership with U.S. DOL will help ensure that our business partners and the state’s workers all get the protections they deserve.”
Misclassification violations can happen anywhere, but those who work in construction, transportation, information technology, and other in-demand businesses appear to be most vulnerable.
The memorandum of cooperation signed by the two agencies adds teeth to labor enforcement efforts by promoting coordinated investigations and shared resources. The partnership sends a strong message to unscrupulous business owners that misclassification laws are being strictly enforced.
“The agreement we signed today with the New Jersey Department of Labor and Workforce will amplify the effectiveness of both agencies,” said DOL Wage and Hour Division Regional Administrator Mark Watson. “The U.S. Department of Labor looks forward to improving coordination and increasing joint outreach and compliance assistance efforts with all of our state partners.”
Additionally, the Governor’s Task Force on Employee Misclassification met this week, chaired by Labor, bringing together representatives from the Departments of Agriculture, Economic Development, Human Services, Transportation, Treasury, and the Attorney General’s office to collaborate on strengthening misclassification enforcement.
This inaugural meeting followed an executive order signed in May by Gov. Murphy establishing a cross-departmental task force. It ushers in a new era of cooperation among state agencies in the fight for New Jersey workers and responsible employers.
July 30, 2018
Drywall company charged nearly $2M for wage theft violations
The California Department of Industrial Relations announced Tuesday that the state's Labor Commissioner's Office has issued wage theft violation citations in the amount of $1.9 million to Fullerton, California-based Fullerton Pacific Interiors for failure to fully pay 476 employees on 26 southern California construction projects from August 2014 to June 2016.
Investigators found that Fullerton failed to provide its drywall installers and tapers with legally required rest periods, paid almost 290 workers merely a daily rate that did not include compensation for overtime work and paid less than the minimum wage to another 28. In California, most workers are entitled to either payment for a 10-minute rest period for every four hours worked or an extra hour of pay for days when those paid breaks are not provided.
Out of the $1.9 million penalty, Fullerton owes almost $800,000 for rest periods, almost $387,000 for unpaid overtime, more than $692,000 for wage statement violations and more than $14,000 for shortages of minimum wage pay. The company must also pay $72,000 of civil penalties. The state began its investigation after receiving worker complaints through the nonprofit Carpenters Contractors Cooperation Committee.
"Wage theft" is the umbrella term for when contractors intentionally underpay their employees, and there are initiatives underway around the country to battle it.
At the forefront of efforts to make sure workers are paid a fair wage is Manhattan District Attorney Cyrus Vance Jr. At the end of last year, Vance said the Manhattan DA's office would actively pursue cases of wage theft. That announcement came at the same time as news that Vance's office and officials in surrounding counties had charged area construction companies and their owners with stealing approximately $2.5 million in wages from more than 400 construction workers. The amounts ranged from $13,000 to $700,000 per company and included checks returned for insufficient funds and failure to pay prevailing wage or overtime.
In May, Vance's office announced that it had charged a city contractor and some of its executives in a wage fraud case worth $9.5 million. Prosecutors alleged that Parkside Construction, from 2014 to 2017, underpaid more than 500 workers $1.7 million and underreported its payroll to the New York State Insurance Fund by $42 million in order to get out of paying almost $8 million in workers' compensation insurance premiums. During the period in question, Parkside and affiliated companies performed more than $100 million of concrete and masonry work on about seven city high-rise projects.
June 7, 2018
1 In 10 Workers Is An Independent Contractor, Labor Department Says
For years, various reports have indicated that the contract workforce is growing rapidly in the U.S.
On Thursday, the Labor Department poured a bucket of cold water on that notion. It released a report showing contract workers make up a slightly smaller share of the workforce than the last time the survey was done 13 years ago.
It said that last year, 10.1 percent of the workforce was independent contractors — down from 10.7 percent in 2005, the last time it conducted the survey.
That represents about 15.5 million people in 2017, compared with 14.8 million in 2005, when the overall U.S. workforce was smaller.
Those figures appear to go against other surveys showing huge growth in contract work, which is transforming the U.S. labor market. A survey conducted in December by NPR/Marist found that contract work makes up 20 percent or more of the U.S. workforce.
Why the seemingly large discrepancy?
Many point to the government's methodology. The Labor Department, for example, did not include people who augment their income through contract work, or who did not work within the week the survey was conducted. That would not include many of the people who work for online platforms such as Uber, TaskRabbit, or food delivery apps, for example. It also excludes those who might have another primary job.
Based on other surveys and estimates, including those workers would roughly double the size of the estimated contract workforce.
Another reason the numbers look lower than expected is that today's job market is far stronger than in 2005, when the Labor Department last conducted its survey.
Sam Katzen, a spokesperson for Fiverr, a marketplace for freelancers to find work said the numbers are misleading. The report "doesn't really represent how work has changed since this report last came out," he said.
Alastair Fitzpayne, director of the Aspen Institute's Future of Work Initiative noted that unemployment is "historically low." And employers are actively competing for workers, which means traditional employers are likely offering more full-time positions to attract and retain talent. If the economy were to weaken, Fitzpayne said, the number of contract workers would also likely spike.
The Labor Department's report underscores other data showing a minority of contract workers receive employment benefits. It found only 41 percent of contract workers received health insurance through their employer. (The NPR/Marist poll found 51 percent do not receive health care and other benefits through their jobs.)
Not everyone agrees the government's latest report is misleading. "The whole idea that we're all becoming freelancers is just that much: hype," said Lawrence Mishel, a fellow at the Economic Policy Institute.
But Mishel does agree many more workers are using contract work to supplement their income. And that, he says, speaks to other problems in the job market.
"The fact that alternate work has not grown does not diminish one iota the fact that we really need to pay attention to wage stagnation and deteriorating job quality," Mishel says.
Worker advocates say the government's report and other data will help shape policy discussions about how to address the needs of workers who are largely not covered by existing workplace benefits and legal protections.
Jennifer Curry, a senior director at Samaschool, a San Francisco training program for low-income contract workers, estimates the government left out 25 million to 30 million freelance or contract workers who do some part-time work.
"Without capturing those other millions of people who are doing this work on the side, it doesn't really give us the full picture," she said. "So it doesn't tell us enough about their training needs, the supports they need, the benefits that they're lacking. We definitely need to know more."
June 1, 2018
The Underground Construction Economy in New Jersey
May 29, 2018
Little Egg contractors used $1.4M in Sandy money to gamble, buy diamond ring
TOMS RIVER - A Little Egg Harbor couple admitted Tuesday to stealing more than $1.4 million from more than 20 victims of superstorm Sandy who hired them to fix their homes.
They used the money to gamble at seven Atlantic City casinos and buy a $17,000 diamond ring and other luxury goods, all the while abandoning jobs or never starting them, authorities said.
Jeffrey Colmyer, 42, and Tiffany Cimino, 34 pleaded guilty to theft by failure to make required disposition of property before Superior Court Judge Guy P. Ryan, sitting in Toms River.
Colmyer also pleaded guilty to money laundering as a principal of the couple’s home improvement contracting businesses, Rayne Construction Management Services LLC, and Colmyer & Sons LLC. That charge alone carries a maximum prison term of 10 years.
Sentencing is scheduled for Sept. 7.
“Colmyer and Cimino heartlessly preyed on Sandy victims whose homes had been destroyed, stealing the relief funds that were the lifeline these victims needed to rebuild in the aftermath of the historic storm,” said Attorney General Grewal in a statement. “By sending Colmyer to prison, we deliver a strong deterrent message that anyone willing to sink so low as to steal disaster relief money from victims will face a stern reckoning.”
May 28, 2018
Construction Worker Fall Case Settles For $1.265 Million in Middlesex
A construction worker who suffered spinal injuries after a fall at a building under construction settled his Middlesex County suit, Pinho v. Meridia Metro Hackensack, for $1.265 million on March 21.
May 23, 2018
West Milford roofing contractor fined $221,000 by OSHA for ladder, asbestos violations
WEST MILFORD — A local roofing contractor has been fined more than $221,000 by federal officials for allegedly exposing employees to dangerous falls and asbestos while performing residential demolition work in the county.
The U.S. Department of Labor’s Occupational Safety and Health Administration announced the fine for the Hewitt-based contractor, John Prevete Framing LLC, on Wednesday. The penalties stem from an Oct. 2, 2017, OSHA inspection, records show.
The inspection, which followed a referral from the New Jersey Department of Labor and Workforce Development Administration, found violations ranging from unsafe ladder use to asbestos exposure, according to OSHA records. OSHA previously cited the contractor in 2013, 2016, and 2017.
“Exposure to dangerous fall and asbestos hazards can be prevented if appropriate safety requirements are followed,” said Lisa Levy, OSHA area director in Hasbrouck Heights. “This employer’s repeated disregard of OSHA standards continues to jeopardize the safety of workers.”
The complete list of OSHA citations issued to John Prevete Framing includes: exposing workers to falls from using unsafe ladders; failing to provide required fall protection; exposing employees to asbestos; and failing to provide asbestos safety training.
The company will have roughly three weeks to comply with $221,343 in penalties, request an informal conference with OSHA or contest the findings before the independent Occupational Safety and Health Review Commission.
OSHA, created in 1970, ensures that employers comply with regulations mandating safe workplaces.
A call to a phone listing for John Prevete Framing went unanswered Wednesday afternoon.
May 8, 2018
10 Biggest Contractor Fines under Trump's OSHA
The president's administration may be reluctant to "shame" contractors, but it doesn't seem unwilling to levy big fines.
During the Obama administration, Occupational Safety and Health Administration press releases that accompanied safety violation citations and notices of proposed fines were often of the "shaming" variety, according to Edwin G. Foulke Jr., former assistant secretary of labor for OSHA under President George W. Bush. He said the approach seemed to be a strategy to force construction contractors or companies in other industries to retroactively take a look at their safety programs and tighten them up before an OSHA inspector made his or her way into their workplaces.
Last year, Foulke told Construction Dive that OSHA’s use of what he considered inflammatory language in press releases did not foster safe work practices. Instead, he said he believed that OSHA should take a more proactive approach to helping businesses comply with safety rules and regulations.
That's ostensibly the position the "new" OSHA took once President Donald Trump was sworn in. The flow of press releases stopped completely for a while and when they resumed, what some considered aggressive language in OSHA statements seemed to be replaced with a more factual, straightforward tone.
However, that doesn't mean OSHA stopped citing and fining companies. In fact, since Trump took office, OSHA has proposed some of the biggest penalties in recent years. Ten of the biggest construction industry fines, based on the most recent OSHA records available, range from approximately $1.5 million to a little more than $271,000. Fall protection violations and trench violations make a strong showing on the list, as does the fact that many of these citations and proposed fines are being contested or negotiated down as part of informal or formal settlement agreements.
Great White Construction, Jacksonville, Florida - $1,523,710
The $1.5 million-plus fine OSHA proposed for Great White is actually two fines combined – one for citations totaling $850,128 and the other for citations totaling $673,582. But both were issued Aug. 1, 2017, after earlier inspections at two of the company's job sites.
The violations were primarily for fall protection and eye hazards, but the company has been cited 22 times for these same issues since 2012. This has landed the commercial and residential roofer in OSHA's Severe Violator Enforcement Program, through which it will be subject to increased inspections and monitoring.
Atlantic Drain Service Co., Boston, Massachusetts - $1,475,813
While Great White's two big fines pushed Atlantic Drain to second place on the list, it is actually the recipient of the biggest single fine OSHA has issued since Trump took office.
In October 2016, two Atlantic employees were killed when the trench in which they were working collapsed. Due to the cave-in, a fire hydrant supply line broke and filled the space with water within seconds. In addition to the proposed fine, OSHA cited Atlantic for 18 safety violations, including not implementing adequate trench safety measures.
The Atlantic case also spurred passage of a new Boston regulation that requires contractors to disclose their safety histories when applying for any building permit in the city. Atlantic allegedly had prior safety violations.
Atlantic and company owner Kevin Otto have since been charged with manslaughter in relation to the deadly accident, but attorneys for the company and Otto requested last month that the charges be dismissed because evidence from construction experts – who might have been able to uncover other causes for the collapse – was not presented to the grand jury prior to the indictments. Atlantic is also contesting the OSHA fines and penalties.
Arrow Plumbing, Blue Springs, Missouri - $714,142
Like Great White, Arrow Plumbing's total penalty is made up of two separate fines – one representing $420,083 of citations and the other representing $294,059. Both are being contested.
In December 2016, an Arrow employee died in a trench collapse, which kicked off an OSHA investigation that eventually led inspectors to a second work site a month later where, despite the prior loss of life, the agency said Arrow was still exposing its employees to trench dangers through failure to install a support system to protect employees from cave-ins, provide a ladder for egress and train workers on how to identify hazards. The agency issued Arrow a total of six willful and eight serious violations.
Kamphuis Pipeline Co., Grand Rapids, Michigan - $454,750
The Kamphuis Pipeline Co. case is an example of OSHA proposing huge fines even though there have been no recorded injuries or death. During an inspection of Kamphuis' North Dakota project sites in September and October of 2017, OSHA said employees were installing water-metering pits and lines while in danger of trench cave-ins and other serious hazards.
The OSHA citations – a combination of willful, serious and other-than-serious – charged Kamphuis with failure to identify and correct hazards; use proper trench protective systems; protect workers from struck-by hazards and locate piles of excavated soil a sufficient distance from trench edges. Kamphuis is contesting the citations and fines.
Robert Barringer III dba Barringer Bros. Roofing et al - $429,417
In February 2017, OSHA issued roofing contractor Barringer two fines just a few days apart for a variety of safety violations, with an emphasis on fall hazards. The first fine was in the amount of $205,544, but that figure was negotiated down to $58,000 as part of a settlement. The second, $223,873 fine, was lowered to $66,000.
Just before Trump took office, OSHA issued Barringer a separate, $214,782 penalty, along with four willful and two serious safety violations, for fall hazards, lack of eye protection and failure to have a safety plan. Those citations combined with Barringer's previous safety record prompted OSHA to place the company into its Severe Violator Enforcement Program. Barringer settled that case with OSHA as well.
Gateway Building Systems, Tintah, Minnesota - $366,150
On Oct. 5, 2016, according to OSHA, one of contractor Gateway Building Systems' employees fell 125 feet to his death from a raised platform while he was working on top of a grain elevator. The agency issued Gateway the hefty fine, along with six willful and two serious violations at the end of last month. The company is contesting all of OSHA's penalties.
Commentary from OSHA about the case has been limited, but three of the Gateway citations relate to fall protection, two to structural steel assembly, one to general requirements, one to falling objects as it pertains to steel erection and one for training.
Manafort Brothers, Plainville, Connecticut - $329,548
According to OSHA inspection reports from July 2017 to November 2017, contractor Manafort Brothers did not take the necessary precautions to protect workers from chemicals during the demolition of a mercury boiler on a project in New Hampshire. The near-$330,000 proposed fine came with two willful and six serious violations. In response, Manafort, aside from challenging the fines and citations, said it stopped work on the project in June 2017 to evaluate its safety procedures and retrain workers.
Jasper Contractors, Kennesaw, Georgia - $375,715
Like Jax, Jasper Contractors chose to negotiate a settlement with OSHA after the agency hit the company with two fines – $239,007 (reduced to $143,404) for violations at one of the company's roofing projects in Orlando and $136,708 (reduced to $82,025) for a project in nearby Kissimmee, Florida. OSHA claimed that Jasper committed violations in regard to ladder safety and fall protection, as well as eye and face protection
OSHA issued Jasper a total of two willful, two serious and one repeat violation, the last one likely based on previous run-ins with agency investigators. OSHA cited Jasper previously for many of the same violations, including fall protection hazards, in April 2016.
Luis Guallpa dba Guallpa Contracting Corp., Milford, Massachusetts - $299,324
Guallpa is a roofing contractor based in Massachusetts, but it was on a New Hampshire job site in September of 2017 that OSHA investigators determined the company was exposing its employees to hazards like working on a roof without adequate fall protection, unsafe use of ladders and lack of head protection. According to OSHA, Guallpa was cited for similar violations in 2014 and 2015, so the agency cited the contractor for one repeat violation, along with two willful and two serious violations. Like the majority of contractors on this list, Guallpa has contested the citations and fines.
Jax Utilities Management, Jacksonville, Florida – $271,606
OSHA has areas of focus called National Emphasis Programs and sometimes steps up inspections and enforcement around these specific safety issues. As part of an emphasis on excavation and trenching safety, agency investigators inspected a Jax Utilities Management site in August and October of last year after an employee was injured in a trench collapse.
OSHA cited Jax for willful and serious violations for not providing adequate trench protections and for allowing water to accumulate in the trench, which allegedly caused the collapse that injured the company's employee. Jax has also been placed in the Severe Violator Enforcement Program.
Jax did not contest the fine or citations, and is working on abatement instead, having established a penalty payment plan with OSHA based on a reduced fine of $135,836.
May 5, 2018
Using 'subs of subs,' contractors able to evade liability in construction worker deaths
After his brother died falling off the roof of a North Nashville home under construction, Hermenegildo Dominguez heard nothing from the roofing subcontractor. He heard nothing from the general contractor. Nothing from an insurance company.
Typically, workers' compensation would have covered $10,000 of funeral expenses, but Alfonso Dominguez, 60, was essentially off the books. It would cost $15,000 to fly his body to his hometown of Vera Cruz, Mexico, and bury him.
Only after the Spanish-language news site Nashville Noticias posted about the June 2017 accident on Facebook did Hermenegildo Dominguez get a response. But it wasn't from the construction companies. Other immigrants throughout Nashville sent him donations.
Today, Dominguez, who cleans construction sites in Nashville, is less concerned about compensation: "What I really want is to get justice," he said.
Alfonso Dominguez's death shows how some construction companies can evade liability for accidents, especially in a booming city like Nashville. A labor shortage has led to a fracturing of work sites, where subcontractors can’t complete projects with their normal crews, so they hire small "subs of subs" below them. Workers at the bottom are sent onto scaffolding and roofs without safety equipment or training, or the assurance their families will be taken care of if they fall.
“If there’s a guy with a pickup truck and his one employee, he can disappear into the vapor. There is always somebody up the food chain.”
More construction workers died in the Nashville metro area in 2016 and 2017 compared with any two-year stretch in the previous three decades. Most of the 16 deaths were from falls without any harnesses or other protection.
"If there’s a guy with a pickup truck and his one employee, he can disappear into the vapor,” said Fran Ansley, a retired University of Tennessee law professor. "There is always somebody up the food chain. Figuring out ways to make them responsible is really important.”
Some contractors erect legal hurdles that leave regulators and families, like Dominguez's, with little recourse. Many companies pay construction workers as independent contractors, instead of as employees, so they can sidestep insurance and tax requirements, experts say.
“That happens all the time, but that doesn’t mean that the person is correctly classified," said Karla Campbell, a Nashville attorney who represents workers. “If the general contractor or owner is not checking on that, it’s really easy to game the system.”
The Tennessee Occupational Safety and Health Administration investigates workplace deaths and, if a worker is determined to be an employee, issues violations against contractors. TOSHA, in the 16 fatalities during 2016 and 2017, fined companies from $750 to $13,500, most often for failing to provide fall protection or safety training.
Federal law places primary safety responsibility on the direct employer, so TOSHA typically fined the small subcontractors. In three of the deaths TOSHA pursued the general contractor as well. General contractors can be held responsible under OSHA law if they meet certain criteria — for instance, if they were at the job site and were aware of the unsafe conditions.
In Dominguez's case, TOSHA fined roofing subcontractor Alonso Luna $9,800 for not providing fall protection or safety training, and for failing to report the accident. He is contesting most of the violations. TOSHA didn't investigate the general contractor, Jimmy Brooks. Luna, when reached by phone, declined to comment.
“Only when the general contractor applies pressure, in many cases, will the subcontractor follow the law,” said David Michaels, a professor in the George Washington University School of Public Health and the former administrator of OSHA under the Obama administration. Michaels said the state could pressure general contractors through negative publicity.
“They should issue a press release with the citation and everybody should know their name,” Michaels said.
But that's unlikely to happen in Tennessee, Ansley said. The conservative, business-friendly General Assembly controls a large portion of the TOSHA budget. Ansley said TOSHA administrator Steve Hawkins is "not going to get up on his soapbox.”
Hawkins said he's considered partnering with local news media to promote construction safety, but he doesn't think shaming contractors through the press is an effective strategy for change.
“I think that has some effect in the near term," he said, "then it becomes background noise.”
John Eldridge, the CEO of E3 Construction Services, is a general contractor who has built hundreds of residences in Nashville during this boom. He holds safety meetings on job sites, especially for commercial construction, but says residential projects have less oversight, which can lead to unsafe conditions.
“It’s not the general contractor's fault if a subcontractor chooses to disregard safety laws," he said. "I can’t force a guy that does framing on a residential house to strap on a harness.”
Actually, OSHA law would require a general contractor who observes a safety violation to do whatever he could to correct the problem.
From Hermenegildo Dominguez's perspective, that's where the responsibility should lay for his brother's death: “I think the bosses are responsible because they didn't give them any safety equipment,” he said.
October 25, 2017
Crooked contractors: Sandy victims discover no background checks in NJ home improvement
► A loophole in the law allows convicted felons to receive state approval to do home improvement work
► A number of Sandy-affected homeowners who believed the state had done background checks on contractors hired a man who had defrauded others across the nation
► The convicted fraudster ripped off two dozen homeowners and employees for more than $1.8 million. It took the state four years to catch up with him.
TOMS RIVER - Jamie Lawson was practically a part of Mark and Diane Wisniewski’s family.
He made sympathetic phone calls to the couple when their daughter was hospitalized for pregnancy complications. Soon after, he mourned with the family when the Wisniewskis’ grandson, born prematurely, died five days after birth. He donated to the March of Dimes charity in honor of their grandchild.
Nearly five years after Superstorm Sandy hit, Mark
Nearly five years after Superstorm Sandy hit, Mark and Diane Wisniewski are still in the process of rebuilding their Toms River shown October 29, 2017. They were one of the many victims of fraudulent contractor Jamie Lawson.
(Photo: Thomas P. Costello)
And on Christmas Day in 2014, Lawson’s son brought over a bottle of wine as a gift — a thank-you to valued customers from Lawson's company, J&N Construction.
Lawson, 42, was the Wisniewskis’ contractor, hired to lift and renovate the Wisniewski’s superstorm Sandy-damaged home on Woodhaven Road in the township.
The Wisniewskis thought they had landed an ideal contractor — one who was skilled, trustworthy and compassionate. And so, they paid Lawson, the owner of J&N Construction and Elevation, $115,000 in federal relief funds over several months, starting December 2014 and ending October 2016.
Then the red “Stop Work” order appeared — a sheet of crimson paper plastered in the middle of the work site that was in such shambles it more resembled a war zone than a home under construction.
As he had done in numerous states over the past 20 years, Lawson moved from one natural disaster to another, fleecing homeowners in desperate need for their residences to be fixed.
In New Jersey, in the wake of Sandy, Lawson found his mother lode.
Victims said Lawson properly performed a few jobs once he began business in Brick to give customers a glimpse of his work, then began defrauding residents with abandon. All the while, Lawson was actively registered with the state Division of Consumer Affairs as a home improvement contractor.
“Honestly, he was very, very caring, and that’s how he got into everybody’s lives – to gain his trust.”
In the eyes of homeowners, Lawson's valid registration was the New Jersey seal of approval.
But, because of a loophole in the law, the state never checked if Lawson had a criminal history.
Had criminal background checks been in place at the time Lawson became registered with the state in late 2012, it's unlikely Lawson ever would have been approved — and also unlikely that more than two dozen vulnerable homeowners would have lost more than $1 million in federal and personal funds at the hands of a scam artist.
But even now, five years after Sandy, implementing mandatory background checks on home improvement contractors is not a practice authorized by state law, and officials continue to grapple with accusations of fraud against home improvement contractors.
"There’s got to be some kind of background check," Diane Wisniewski said. "It makes no sense to me. And I think a lot of this can be avoided, and could in the future be avoided, if they change that. That’s important."
It took four years for the law to catch up with Lawson.
Rich Bindell and his wife Allison hired contractor Jamie L. Lawson to repair their superstorm Sandy damaged home. After taking thousands for work performed, Lawson abandoned the project.
In December 2016, Lawson was indicted by an Ocean County grand jury on criminal charges related to his contracting business, in which authorities alleged he took hundreds of thousands of dollars from dozens of homeowners in Monmouth and Ocean counties and partially completed jobs, or not at all.
At the time the indictment was handed up, a spokesman for the Ocean County Prosecutor's Office said Lawson had also been accused of construction-related offenses in numerous southern states directly related to his contracting business.
Shortly after Lawson was charged in the indictment with theft by failure to make required disposition, money laundering and tampering with public records — in connection to the false home improvement contractor application Lawson submitted in November 2012 — he fled the state and became a fugitive.
It wasn't his first go-around with the law.
James "Jamie" Lawson, a home contractor who is accused
James "Jamie" Lawson, a home contractor who is accused of stealing $1.5M from more than a dozen homeowners by agreeing to do work - then bailing, smiles at some of the people he defrauded during his detention hearing in State Superior Court in Toms River Friday, July 7, 2017.
(Photo: Thomas P. Costello)
Over the last 20 years, Lawson had been charged dozens of times, extradited on arrest warrants and convicted of various crimes three times, according to court records and court officials in several states. He was found guilty of assault with a deadly weapon in North Carolina, violation of a business license in South Carolina and theft of property in Texas. He was charged with theft in numerous states, arson and threats to perform acts of violence in Oklahoma and domestic assault in Tennessee.
Dozens of other charges – misdemeanors and felonies – were dismissed, either because Lawson accepted plea deals, paid restitution and court costs, or because authorities lacked sufficient evidence, court officials said.
“Over the last 20 years, Jamie Lawson was charged dozens of times and convicted three times.”
ASBURY PARK PRESS
Six months after Lawson fled New Jersey, he was arrested at an extended-stay motel in Florence, South Carolina, by officers from the U.S. Marshals Service.
Lawson’s lawyer, Keith Oliver, declined to comment for this story.
This month, Lawson pleaded guilty to theft and money laundering and admitted to stealing $1.86 million from more than two dozen homeowners in Monmouth and Ocean counties. Some of the $1.86 million included money that should have been paid to J&N Construction workers in exchange for labor, said William Scharfenberg, senior assistant prosecutor with the Ocean County Prosecutor's Office. Lawson faces up to 10 years in a state prison. His sentencing date is scheduled for Dec. 1.
More: Contractor accused of scamming $1.5M arrested in South Carolina
More: Sandy contractor pleads guilty to $1.86M theft
Watch: Contractor admits to defrauding Sandy victims
“They say he was a professional con man,” Diane Wisniewski said, recalling what investigators told her. “I mean, he practically joined our family. Honestly, he was very, very caring, and that’s how he got into everybody’s lives — to gain his trust.”
In the five years since superstorm Sandy walloped New Jersey, millions of federal dollars were disbursed to homeowners whose houses desperately needed major repairs.
And in the time the money was dispensed, complaints were filed against thousands of home improvement contractors alleging everything from shoddy work to theft.
An Asbury Park Press investigation of New Jersey’s home improvement contracting industry found:
Criminal history background checks are not conducted on people applying to be home improvement contractors in New Jersey — often to the detriment of frequently over-matched property owners. There is no law that requires such checks. Instead, all first-time applicants are asked to self-disclose any criminal convictions, and officials make the decision to grant or deny registration based on the applicant's disclosure form.
Numerous state legislators contacted by the Press said they did not know why a statute permitting background checks on home improvement contractors had not been enacted. One lawmaker called it a “common sense measure.”
Background checks could have kept frequent violators like Lawson from being authorized to work as a home improvement contractor in New Jersey. But this is not a condition unique to New Jersey. The Press investigation also found that most states do not require probes that vet all prospective home improvement contractors.
In the deluge of home improvement contractors accused or convicted of fraud, Lawson stood out because of the magnitude of his crimes and a history that showed he defrauded homeowners in other states whose homes had been ruined by tornadoes and hurricanes.
But state records that show how many contractors lied about criminal convictions remain scant.
The Division of Consumer Affairs, which oversees contractor registration, denied a public records request asking for a list of people who were found to have lied on the disclosure statement of the home improvement contracting registration. The agency said the Home Improvement Registration Unit “does not keep a list that compiles the type of information you requested.”
Nearly five years after Superstorm Sandy hit, Mark
Nearly five years after Superstorm Sandy hit, Mark and Diane Wisniewski are still in the process of rebuilding their Toms River shown October 29, 2017. They were one of the many victims of fraudulent contractor Jamie Lawson.
(Photo: Thomas P. Costello)
'I can't explain it'
In New Jersey, approximately 48,703 home improvement contracting businesses were actively registered with Consumer Affairs as of Oct. 20, according to the Division's registry.
In comparison to other regulated professions under the Division of Consumer Affairs, there there were 33 actively registered home elevation contracting businesses, about 12,000 actively registered electrical contracting businesses and about 8,500 HVAC contracting businesses.
In 2016, state authorities cited 136 home improvement contractors and said the contractors’ violations totaled to about $1.9 million in fines and restitution, although not all the cases were resolved. In the same year, the Consumer Affairs brought six civil cases against contractors who allegedly bilked more than 100 customers who needed construction work done on their homes following Sandy. About 99 victims lost $3.8 million in federal relief funds, according to the Division.
The number of citations issued to home improvement contractors was similar for 2015.
In a recent survey conducted by the New Jersey Organizing Project, an Ocean County-based organization that advocates for Sandy victims, 22 percent of people reported they were not yet home. The survey received 551 responses in total.
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“I can't explain why this didn't come up.”
BRIAN RUMPF, STATE REPUBLICAN LEGISLATOR
“It is very frustrating at times to see very common-sensical measures not being acted upon,” said Assemblyman Brian Rumpf, R-Ocean, who has been a lawmaker since 2003 and represents southern Ocean County. “Not only are these folks victimized by being abandoned from their homes – to add to that, they are then further victimized by being defrauded."
All of the half-dozen Democratic and Republican state legislators who spoke with or relayed statements to the Press said they did not know why a law requiring home improvement contractors to submit to criminal history background checks was not in place, although numerous jobs – from office workers to nurses, to teachers to fast food cashiers – require some sort of history check.
'It was like a washing machine'
In the summer of 2015, Rich and Allison Bindell believed they did their homework before they chose Lawson as their contractor to fix their Cattus Street home, which was pummeled by superstorm Sandy.
Four feet of water had damaged thousands of dollars in property and caused the family to lose everything they had on the first floor of the house located near the Toms River waterfront, Allison Bindell said.
“The water didn’t just come up and rise up,” she said. “It was like a washing machine. So everything that was in my family room was in my washroom.”
After the Bindells saw Lawson was registered with the state and checked out some of Lawson's previous construction work, the Bindells hired him to elevate their house and repair damage.
Paperwork was filed with the township, and in April 2016, the Bindells said they moved out so construction work could start.
Lawson got the house in the air, Rich Bindell said. But then, after making some progress on construction, he said Lawson stopped showing up to work on the house.
Allison Bindell, of Toms River, describes how superstorm Sandy damaged her family's home in October 2012.
“I'm out that almost $20,000 - I gotta make that up.”
The Bindells said choosing Lawson was a mistake — a mistake that cost them $99,000, and more than a year out of their home.
The Bindells, who have two children, said they received approximately $80,000 back from the state.
“I’m out that almost $20,000,” Rich Bindell said. “I gotta make that up. So, you know, whatever. That’s coming out of my 401(k), or my savings and everything else. Plus, I got a kid in college. That don’t help. But, you know, makin’ it, slowly.”
The Bindells’ home is now being repaired by Legacy Custom Home Builders, a local company that the Bindells hired this summer. In about a month and a half, the Legacy construction team worked efficiently on the home, to the Bindells’ delight.
Rich Bindell and his wife Allison hired contractor
Rich Bindell and his wife Allison hired contractor Jamie L. Lawson to repair their superstorm Sandy damaged home. After taking thousands for work performed, Lawson abandoned the project. The house still remains unfinished with a new contractor hired to complete the job. Toms River, NJ Thursday, September 21, 2017 @dhoodhood
(Photo: Doug Hood)
But in about three or four months, after an unexpectedly long and stressful journey through state agencies and the Ocean County Prosecutor’s Office, Rich Bindell said he expects his family will move back into their original home.
“God willing,” Allison Bindell added.
'There are enough bad apples'
Assemblywoman Amy Handlin, R-Monmouth, thinks New Jersey is an overregulated state. But consumer protection, when it comes to home improvement contracting, is one of the areas she said she wants to strengthen.
In an attempt to bolster home improvement construction statutes, Handlin recently drafted a proposal that would require background checks for home improvement and elevation contractors.
Top: A picture of Mark and Diane Wisniewskis' home
Top: A picture of Mark and Diane Wisniewskis' home in Toms River, prior to construction work. Below: The Wisniewskis' home after Jamie Lawson, the owner of Brick-based J&N Construction, elevated the house. Months after Lawson raised the house, he was indicted in Ocean County on allegations of theft and money laundering, among other charges.
(Photo: KATIE PARK/STAFF PHOTO)
“The industry doesn’t like this notion of painting them all with the same brush,” Handlin said. “I understand that, and I don’t doubt that most of them are responsible and law-abiding, but there are enough bad apples to sour the whole barrel, from the perspective of consumer advocates."
Handlin’s proposal, which likely will not be formally introduced until after the November general election, would require home improvement or home elevation contracting applicants to be fingerprinted. She said the fingerprints would be run through FBI or New Jersey State Police records to check for conviction records.
The applicant would pay the cost of the background check, which would likely be more than $50 but less than $100, Handlin said.
As the proposal currently stands, the background check would apply to the owners of the company, said Leigh Maris, Handlin’s chief of staff.
“The industry doesn't like this notion of painting them all with the same brush.”
AMY HANDLIN, DEPUTY REPUBLICAN LEADER
Like other legislators, state Sen. Jennifer Beck, R-Monmouth, said she also wants to protect consumers. But Beck said she doesn’t favor background checks.
Ideally, under bills she proposed, Beck said contractors would have to disclose all major corporate owners to the state and establish a $25,000 surety bond to cover any damage or problems that affects the homeowner.
"People assume that because you’re registered that means something," Beck said. "It really doesn’t. It really means very little. It’s very easy to register."
As Beck grapples with steering her bills through the legislative process, she said she wonders if the bills contribute to smart reform or excessive bureaucratic hurdles.
“There is a balance,” Beck said. “But, in this case, the Division of Consumer Affairs can tell you that for clear-cut cases of fraud, that they are oftentimes finding their hands are tied because the statute isn’t strong enough. Then that’s on us to try to figure how to tighten it up.”
Continue our special report
CROOKED CONTRACTORS PART II: The long process of recovering from fraud
CROOKED CONTRACTORS PART III: The potential solutions found elsewhere
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October 5, 2017
Sandy contractor pleads guilty to $1.86M theft
TOMS RIVER - A former home improvement contractor who admitted Thursday to ripping off superstorm Sandy victims to the tune of about $1.86 million faces up to 10 years in a New Jersey state prison, a senior assistant prosecutor said.
James "Jamie" Lawson, 42, under terms of a plea agreement with the Ocean County Prosecutor's Office, entered guilty pleas before Judge Wendel E. Daniels in Ocean County Superior Court to one count of first-degree of financial facilitation of criminal activity — more commonly known as money laundering — and one count of theft.
Approximately 30 homeowners' names, plus about a half-dozen unpaid Lawson construction employees, were named as victims under the theft count, said William Scharfenberg, a senior assistant prosecutor with the Ocean County Prosecutor's Office.
"The reason it was done that way (listing the victims) was because some of these individuals have RREM (Reconstruction, Rehabilitation, Elevation and Mitigation) funding under the grant, and RREM is requiring that there be a legal document saying they were defrauded," Scharfenberg said. "So we put all the victims' names in that theft count."
Lawson, a longtime contractor who had moved to New Jersey shortly after superstorm Sandy pummeled the Jersey shore in 2012, set up shop in Brick, then contracted with dozens of Monmouth and Ocean county homeowners whose residences were damaged by the storm.
Brick contractor accused of fraud
Contractor accused of stealing $1.5M arrested in South Carolina
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What followed was a flood of complaints, as Lawson either did little work or none at all, according to residents and the authorities.
Lawson could be sentenced to 10 years. Of that term, he would be required to serve at least three-and-a-half years until he would be eligible to be considered for release on parole, Scharfenberg said.
Additionally, under the terms of a civil consent judgment, Lawson is required to pay $1.86 million, Scharfenberg said.
Lawson's attorney, Keith Oliver, of the Middletown law firm Proetta & Oliver, could not be reached Thursday.
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Jamie Lawson, a home contractor accused of fraud and theft, agrees to a ten year prison sentence. Brian Johnston
Lawson's demeanor in court Thursday was a stark contrast to a previous court appearance during the summer. In early July, Lawson stared at people in the gallery and smirked at the handful of victims who were on hand.
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On Thursday, Lawson did not look at the gallery and he stared straight ahead at the wall in front of him, or otherwise lowered his eyes. Around 15 homeowners who had paid tens or hundreds of thousands of dollars to Lawson sat on the benches, their eyes trained on the man who promised plenty but delivered little.
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Prior to entering the guilty pleas, Lawson, clad in green county prison garb and pristine white sneakers, followed instructions to place his left hand on a copy of the Bible and raise his right hand, while spelling his name to a court secretary.
With his wrists shackled, Lawson struggled to raise his right hand while his left hand remained on the Bible. A few people in the gallery audibly snickered. He did not visibly react.
Seated at the witness stand, Lawson quietly responded to dozens of questions from an attorney.
Some of the questions: Had Lawson moved to New Jersey on or around Nov. 1, 2012? Did he fail to disclose on his home improvement contractor application that he had been criminally convicted of offenses in other states? Did he have Chase, PNC and Bank of America accounts that he used to keep money he gained from his contracting business? Did he use that money to pay for trips, dinners, credit card bills and personal expenses?
"Yes," Lawson said in response to all of the inquiries.
Victims in the gallery remained silent.
Outside the courtroom, the victims beamed and chatted happily.
One victim said the sentencing, if it happens as scheduled on Dec. 1, would be an early birthday gift to her. She was born Dec. 4.
Scharfenberg said he was pleased with the outcome.
"This is a good result," Scharfenberg said. "You know, it's a white-collar case. You don't normally get these type of sentences out of the court. We had a defense attorney that understood the paperwork and went over it with his client, and they agreed to a term that I think was very good."
About a year ago, Lawson, then 41, had been indicted in Ocean County Superior Court on money laundering, six counts of second-degree theft by failure to make required disposition, third-degree tampering with public records — referring to the omissions made in his contracting application — and one count of fourth-degree unregistered home improvement contracting.
At the time of the indictment, a spokesman for the Ocean County Prosecutor's Office said Lawson had previously performed contracting work in North Carolina, Texas and Oklahoma, in addition to other Southern states, and faced fraud charges related to his construction business.
Shortly after the indictment was handed up in Ocean County, Lawson disappeared from New Jersey and was named a fugitive. Six months later, in June, while staying at an extended-stay hotel in Florence, South Carolina, Lawson was arrested by U.S. Marshals. Lawson was extradited back to New Jersey and since held in the Ocean County jail.
As part of the plea agreement, several counts of the indictment were dismissed, in addition to the arrest warrant.
The sentencing, scheduled for Dec. 1, will be before Daniels.
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September 1, 2017
Construction Worker Shortage Could Weigh on Harvey Recovery
NEW YORK — A nationwide shortage of construction workers may slow rebuilding efforts in the wake of Hurricane Harvey, which caused extensive flood damage to homes and businesses and is set to be one of the costliest natural disasters in U.S. history.
Nine years after the housing bust drove an estimated 30 percent of construction workers into new fields, the supply of skilled and unskilled labor remains tight at all levels of experience, according to the National Association of Homebuilders.
In Texas alone, which is in the middle of a building boom, 69 percent of contractors were having trouble filling positions before the storm hit, according to a survey from the Associated General Contractors of America.
August 30, 2017
New Focus on Apprenticeships - New Jersey Business Magazine
Ideally, a business could hire someone right out of school or off the street to fill a job opening and get a new employee who has been properly trained for the position. Anyone who has tried to hire someone recently knows this is not the world in which we live. The need for skilled workers continues to grow, both in New Jersey and nationally, and that need has brought new life to an old idea – apprenticeships.
New Jersey’s skilled labor shortage is one of the biggest. We have more job openings per-capita than any other state in the nation except one. It’s not just a lack of college graduates; many businesses have jobs that require specific technical skills that still require post-secondary education, just not a full bachelor’s degree.
An apprenticeship could help fill this void. It’s an on-the-job training program that allows an employee to learn a craft or trade while being employed and paid by the company or organization sponsoring the training. Most trade unions have apprenticeships, but now the idea is expanding to other types of businesses that need employees in the middle skill level. An employer does not need government permission to start an apprenticeship program, but any job that requires certification or a license will likely need to be a registered apprenticeship.