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.