New York Legal Blog

Deathly Falls Continue to Plague Construction Workers

After recently creating a unique database from numbers provided by the CDC’s NIOSH Fatality Assessment and Control Evaluation program (FACE), researchers with the Center for Construction Research and Training (CPWR) discovered that, over a 33-year period, falls accounted for nearly half of all construction worker deaths. And of that number, over half happened because workers were not using fall-protection equipment. Reports for 768 construction industry fatalities between 1982 and 2015 revealed that: 42 percent (325) of all construction fatalities involved falls. 54 percent of the workers killed in falls had no access to a personal fall arrest system (PFAS), and 23 percent had access to a PFAS but did not use it. Most of the workers with no access to PFAS worked for residential building, roofing, siding, and sheet metal contractors. 107 of the 325 fatal falls were from 30 feet or higher. 20 percent of fall deaths occurred in the victims’ first two months on the job. “Even though this study was unable to assess effectiveness of OSHA [Occupational Health and Safety Administration] fall protection standards established in 1995, a considerable number of fall fatalities from lower heights provides strong evidence of the need for the OSHA requirement that fall protection be provided at elevations of 6 feet or more in the construction industry,” researchers said. In the study’s abstract, the researchers say their new database enabled them to analyze FACE reports “quantitatively and efficiently, to improve understanding of work-related fatalities injury prevention.” To prevent employees from being injured from falls, the CPWR encourages the following guidelines and practices: Guard every floor hole into which a worker can accidentally walk (using a railing and toe-board or a floor hole cover). Provide a guard rail and toe-board around every elevated open-sided platform, floor or runway. Regardless of height, if a worker can fall into or onto dangerous machines or equipment (such as a vat of acid or a conveyor belt) employers must provide guardrails and toe-boards to prevent worker falls. Other means of fall protection including safety harness and line, safety nets, stair railings and hand rails where appropriate. OSHA also requires employers to: Provide danger-free working conditions wherever possible. Keep floors in work areas clean and, as far as possible, dry. Select and provide required personal protective equipment free to workers. Train workers about job hazards in a language they can understand. Furthermore, the CPWR recommends the following: When estimating the cost of a job, employers should include provisions for purchase of specific safety equipment for the work performed and have it be available at the construction site. An example for a roofing job: think about all of the different fall hazards, such as holes or skylights and leading edges, then plan and select appropriate fall protection, such as personal fall arrest systems (PFAS). Employers should also secure... read more

Experts Believe Fatigue May Cause 10 Percent of All Vehicle Crashes

Drowsy driving is a common but often overlooked problem that is to blame for thousands of deaths each year in crashes that cost more than $100 billion. That’s the conclusion of the latest in a flurry of recent reports on the subject. Drowsy driving plays a role in a much larger percentage of severe accidents than federal estimates had led us to believe, according to a study released in early February 2018 by the American Automobile Association’s (AAA) Foundation for Traffic Safety. The foundation reviewed dashboard video from 700 accidents and found that almost one in 10 (9.5 percent) of all crashes involved drowsy drivers, based on the amount of time their eyes were closed leading up to the crash. The survey was an “eye-opener,” as previous federal estimates suggested drowsiness contributed to only one or two percent of all crashes. Overwhelming Evidence of the Dangers of Drowsy Driving About 35 percent of all adult U.S. drivers sleep less than the recommended seven hours per-night, according to the Centers for Disease Control and Prevention. And in another survey by the AAA Foundation in 2016, nearly all drivers (96 percent) said they view drowsy driving as a serious threat, but only around a third (29 percent) admitted that they had driven while drowsy during the previous month. At least 72,000 crashes, 44,000 injuries, and over 800 deaths due to drowsy driving occurred during a recorded period of 2013-2014, according to The National Highway Traffic Safety Administration (NHTSA). Those at extreme risk of drowsy driving are shift workers, commercial truck and bus drivers, people with untreated sleep disorders or who take sleep medications, and anyone who just doesn’t get enough sleep, which experts agree is at least six hours uninterrupted sleep for healthy adults. In light of recent surveys, what must now be viewed as a bellwether 2016 study underscores drowsy diving’s dangers. It was conducted by the Harvard Medical School’s Division of Sleep Medicine and Brigham and Women’s Hospital’s Division of Sleep Disorders. The driving habits of 16 night-shift workers were studied as they drove on a closed track. The researchers found that the volunteers’ driving was dangerously worse after work, when compared to their getting a full night’s sleep. Other conclusions included: Almost 38 percent of the drives performed by the volunteers after a work shift ended in a near-crash; but there were no near-crash incidents after volunteers slept beforehand. Seven of the 16 drives performed after night-shift work had to be terminated early because the drivers could not adequately control their vehicle; but all tests were completed after subjects had slept at least five hours. Ocular (visual) measures of drowsiness were significantly higher in drivers who had just worked a night shift; but not those who had sufficient sleep. How to Avoid Driving Drowsy Here are some warning... read more

New York & Atlantic Discrimination Lawsuit Alleges Lax Working and Safety Practices

The way management treats the least of their employees says a lot about a business. And we know of one local employer which won’t be found on Fortune Magazine’s list of 100 Best Companies to Work For anytime soon. Since 2010, undocumented Mexican, Ecuadorean, and Dominican workers have allegedly endured unreasonably harsh working conditions, substandard pay, and ongoing abuse by their supervisors at the New York & Atlantic Railway (NY&A). Their charges were detailed in a lawsuit filed against the railroad a few weeks ago. The lawsuit was first reported by The New York Times, but still receives local media coverage. The suit is the latest in a series of public criticisms of NY&A business and service practices by federal investigators and other government officials. The company moves 30,000 carloads of construction material, food, waste and other items each year over about 270 miles of tracks from Bay Ridge, Brooklyn, to Montauk, Long Island. The 18 plaintiffs claim railway supervisors hired them by first picking them up at Home Depot parking lots and then, once they were “permanently” hired, subjected them to dangerous and humiliating conditions at various company locations in Queens and on Long Island. The men routinely spent 12- to 14-hour shifts – and occasionally as much as 24 hours – working on sections of the Long Island Railroad that NY&A leased for no more than $120 per day, regardless of how long that “day” was. The men said they performed dangerous and strenuous tasks under demeaning conditions — tasks such as righting derailed cars, maintaining switches, and cutting 8×8 railroad ties. And yet, they earned much less than their white co-workers, were denied safety equipment and received no training other than viewing an occasional YouTube “How To” video before performing dangerous jobs such as crawling under derailed railroad cars in attempts to right them. According to the lawsuit, these laborers who reported for work at the Fresh Pond Rail Yard in Glendale were not allowed to walk through the facility’s main gate. Instead, they had to scale a back fence so they wouldn’t be seen. And occasionally, when federal or state rail inspectors arrived, the plaintiff’s said supervisors ordered them to hide, sometimes yelling that the “federales” had arrived. “We felt embarrassed,” said one plaintiff. “And we felt ashamed, and humiliated.” The lawsuit seeks class-action certification and recognition that NY& A violated the City’s Human Rights Law, New York State labor laws and the Federal Employers Liability Act. The plaintiffs also ask for damages including back minimum wage and overtime compensation, repayment for physical injuries, pain and suffering, and a court order that forbids NY&A from repeating the alleged actions. NY&A President James Bonner called the allegations “baseless and without merit.” He added that the company “takes all such claims against our business seriously.”  But it... read more

Will Protected Crosstown Bike Lanes Reduce Cyclist Injuries in NYC?

New York City transportation officials are creating a pair of protected Manhattan crosstown bike lanes on streets that have a sidewalk curb on one side, and a row of parked cars on the other. They would be the first such lanes in Manhattan that stretch almost completely from the East River to the Hudson. Currently, protected bike lanes in Manhattan only run north–south. One of the protected lanes will be on 26th Street (eastbound) where there is no bike lane. The other is one-way westbound on 29th Street. It replaces an existing – unprotected – lane which is marked by paint. Both are approximately 1.8 miles and should be complete by the end of 2018, according to city transportation officials. In December 2017, the city also announced plans for new crosstown protected bike lanes running in both directions on a 1.5-mile stretch of 13th Street. City officials say the program to build protected bike lanes in Midtown Manhattan is in response to the 2017 death of five cyclists in crashes between 14th and 59th Streets, including the first fatality involving the bike share program. Throughout the city, 2017’s 23 bicyclist fatalities marked an increase from 18 in 2016, while pedestrian and vehicle-related fatalities noticeably declined over that same year. Cycling is becoming an integral part of New York City’s transportation infrastructure, and officials are committed to building 50 miles of new bike lanes every year, 10 miles of which they say would be protected lanes. In 2017, a record 25 miles of protected lanes were added to the city’s 1,100+ miles of bike lanes, with 451 miles of them being protected. But will they make a difference in bike riding fatalities? Granted, part of the uptick in cycling fatalities includes the deaths from the Halloween terror attack. But there are also indications that maybe bike riding enforcement needs more study. It also seems that putting more teeth into enforcing those laws – not limited to increased fines – could help. Criticism from residents and some elected officials about cyclist behavior continues to grow.  Opposing complaints that cyclists speed, run red lights, travel in the wrong direction on one-way streets and pose a danger to themselves and pedestrians arise every time the city proposes to add bike lanes in Manhattan and Queens. And others complain that the laws which govern bicycle traffic are ambiguous at best, especially those that apply to violations of bike lane ordinances. On social media, one cyclist complained of unmarked NYPD cars pulling cyclists over (and hanging out in the bike lane while writing tickets, thus forcing other cyclists out of the protected lane and subjecting them to being “pulled over”). So maybe building protected lanes is part of the answer; the rest of it could involve organic planning and enforcement which makes bicycling a safer... read more

Science Panel Urges Lowering BAC Intoxication Level from .08 to .05 Percent

All 50 states use a blood-alcohol content (BAC) level of .08 to legally determine whether someone is too intoxicated to drive. And many states lower minor (underage) BAC. Recently, Utah passed a measure to lower its adult BAC threshold to .05. And The National Academies of Science, Engineering, and Medicine have published a report recommending – some say demanding – that all states lower the .08 threshold to .05. The authors of the report strongly urge the federal government to support the new BAC limit and call for strong federal and state enforcement. The study was commissioned by the National Highway Transportation Safety Administration (NHTSA) in hopes of finding a solution to what is arguably the deadliest danger on the road today: drunk drivers. The report, issued on January 17, 2018, suggests some rather radical remedies to the plague of intoxication-based driving offenses and deaths. The most aggressive of these include: Making alcohol more expensive by raising, even doubling, alcohol taxes in retail liquor outlets. The report suggests that doubling alcohol taxes could, by itself, reduce alcohol-related traffic deaths by as much as 11 percent. Reducing the number of days and/or hours during the day that retail alcohol outlets are open for business. While few can legitimately dispute the progress made in recent decades to curb drunk driving deaths, more than 10,000 people still die in alcohol-related vehicle accidents each year in the United States. The report’s authors cite NHTSA’s assertion that since 1982 drunk driving has caused one-third of all traffic deaths, on average. Of the total number of DWI fatalities over the same period, four in ten fatalities were passengers or people in other vehicles, not the intoxicated driver. And In 2010, the total economic cost of DWI crashes in the U.S. was $121.5 billion, which encompasses medical bills, lost earnings, other costs and total property damage. The National Academies’ panel suggests there is strong evidence that higher alcohol taxes reduce binge drinking and drunk-driving deaths. And it lamented that alcohol taxes across the nation have declined in inflation-adjusted terms, at both federal and state levels. The panel further noted that those taxes don’t cover the costs of alcohol-fueled harm. And in the tax bill passed in December, 2017, Congress lowered federal alcohol excise taxes by about 16 percent, the report authors said. Despite their laudable intentions for the good of the general public, all of these proposals from the Academies are drawing a groundswell of opposition from the alcohol and restaurant industries. The Distilled Spirits Council, a group representing the nation’s alcoholic beverage makers, quickly weighed in. It said in a statement shortly after the report was released that it “strongly support[s] the strict enforcement of the 0.08 BAC level. Reducing the BAC limit to .05 will do nothing to deter the behavior of repeat and... read more

Have a Safe Super Bowl Party — and Don’t Forget the Designated Driver!

Super Bowl Sunday is arguably our biggest party weekend of the winter. After 50 years of them, most people don’t care who the combatants are. It’s just a reason to gather with friends to share food, drink, fun, and beat back the winter blahs. Many times, alcohol is a prominent element to Super Bowl revelry, so we all must keep safety in mind. Several organizations, including the NFL, National Highway Traffic Safety Administration (NHTSA), and Mothers Against Drunk Driving (MADD), have joined to cooperatively call attention to the important message: “Fans Don’t Let Fans Drive Drunk.” They encourage Super Bowl party hosts to plan their parties to reduce the number of guests who consume too much alcohol, putting themselves and others at grave risk when they get behind the wheel to head home. So here are several tips to help keep you, your guests, and others safe from the hazards of drunk driving. When you invite your guests, ask them to designate a sober driver And if they can’t; suggest alternatives such as a taxi. Or that they have an Uber or Lyft App on their smartphone to get them home safely. Never allow guests to drive drunk. Show designated drivers they’re MVPs by giving them the “best seats in the house.” Reward them with “front row” seats for the game. This makes them easy to identify, especially if you give them a name tag with “DD” on it to make sure they’re not served alcohol. Serve plenty of food. Food reduces the effects of alcohol. Have many types of snacks, goodies and more substantial food available throughout your Super Bowl party. And keep the buffet stocked. Give your guests lots of drink choices – not just beer, wine or other alcoholic beverages. Options such as water, juice and soft drinks can be a big hit. If you serve mixed drinks with hard liquor, go heavy on the “mixer” and lighter on the liquor. Never pour more than a “jigger” (ounce) no matter how large the glass is. And if you’re the bartender, take note of what people are drinking to make sure the alcohol is not being consumed too fast. One drink at a time. Serve only one drink at a time to each guest. DO NOT let them stockpile. Not only can it reduce the amount of alcohol your guests consume, it saves you money! Never serve alcohol to anyone under 21. You could face legal repercussions if you do, especially if they get in an accident. And keep a sharp eye out to prevent them from drinking (or pilfering) alcohol “on the down low.” When the fourth quarter arrives, it’s time for dessert and coffee. Offer coffee, cookies, cupcakes or other types of desserts after the third quarter. If no alcohol after the third quarter is... read more

Alarming Upward Trend of Worker Deaths in U.S.

The week before Christmas, 2017, the U.S. Bureau of Labor Statistics (BLS) released its annual report on fatal work injuries for 2016.  According to the BLS, there were 5,190 workplace fatalities in 2016, a seven percent increase over 2015 and, sadly, the highest level over the previous 10-year period. Fatal work injuries also rose from 3.4 per 100,000 (full-time) workers in 2015 to 3.6 in 2016. Causing 40 percent of worker deaths (2,083), transportation accidents were the leading cause of 2016 workplace fatalities, just like they were in 2015. Violence on the job came in as the second most prevalent cause of workplace deaths (866 – up 23 percent from 2015). The third most common workplace fatality was from injuries due to slips, trips, or falls — 849, a six percent rise over ‘15.  Fatal slips, trips and falls have consistently finished in the top five for the past decade and have experienced an overall increase every year since 2011. Another alarming trend is not all that surprising now that the war on opioids is in full bloom. The number of overdoses on the job increased by 32 percent in 2016, and the number of drug-related workplace fatalities has increased by at least 25 percent every year since 2012. In her statement accompanying the BLS report, OSHA’s Deputy Assistant Secretary Loren Sweatt said that it is no longer possible to ignore the fact that the nation’s opioid crisis is “a deadly and growing workplace issue” that has invaded the workplace and is “impacting Americans every day at home and, as this data demonstrates, increasingly on the job.” One other workplace injury that saw a drastic uptick in fatalities between 2015 and 2016 was the number of people exposed to harmful substances or environment — a 22 percent increase. “Today’s occupational fatality data show a tragic trend with the third consecutive increase in worker fatalities in 2016,” says OSHA’s Sweatt about the overall report, “and the highest since 2008. America’s workers deserve better.” “[OSHA] is committed to finding new and innovative ways of working with employers and employees to improve workplace safety and health,” Sweatt continued. “[We] will work to address these trends through enforcement, compliance assistance, education and training, and outreach.” But Peg Seminario, director of occupational safety and health for the AFL-CIO, says the new BLS report exposes disturbing trends in the workplace. “The [latest] increase in job fatalities shows that for many…work is becoming more dangerous and deadly,” says Seminario. When noting that the 5,190 total workplace deaths translates to 14 workers each day, she points out that it is “the highest total number since 2008 and the highest daily average rate since 2010.” Seminario added that job fatalities are increasing in growing sectors of the economy, such as healthcare and food services, which historically receive little attention and oversight... read more

Can the U.S. Do Better When it Comes to Driver Safety?

Gradually, over the past 40 years, American roads have become some of the most dangerous in the industrialized world. It wasn’t always so. At one time, driving in the U.S. was much safer. The number of traffic-related deaths in 1990 was about 10 percent lower than those in Canada and Australia, two other similarly industrialized countries with a comparable number of highway miles which have now passed us safety-wise. And other countries have established aggressive campaigns to reduce vehicle crashes while we here in the U.S. have not. Even though traffic fatalities have fallen here, the lion’s share of the credit goes to safer vehicles. And our drop in fatalities has been much shallower than that of any other industrialized nation. As a result, this country has turned into a disturbing outlier according to the International Organisation for Economic Cooperation and Development (OECD). The U.S. vehicle fatality rate is about 40 percent higher than Canada’s or Australia’s. The comparison with tiny Slovenia is pitiful. In 1990, its death rate was more than five times as high as ours. Today, on a pro-rated basis, Slovenia has safer roads. A curious conclusion when looking at the numbers reveals that had the U.S. kept pace with the rest of the world in reducing traffic fatalities, about 10,000 fewer Americans each year – or about 30 each day – would still be alive. And those 30 fatalities per day make our roads more dangerous when compared to the number of deaths from another tragic American plague – gun violence. Reasons Why American Drivers Lag When it Comes to Road Safety “The overwhelming factor is speed,” says Leonard Evans, an automotive researcher when asked why we Americans seem determined to kill ourselves on the road. “Small differences in speed cause large differences in harm,” he adds, noting that other countries post lower speed limits and have more cameras devoted to catching speeders. But speed is only one explanation — there’s more. Seatbelt use is also more prevalent elsewhere. Even though we have aggressive campaigns to get Americans to “buckle up,” one out of every seven American drivers (and passengers) still doesn’t use one according to safety researchers. Other reasons for heightened driver safety in other countries is that in some, 16-year-olds aren’t allowed to drive, and buzzed driving viewed as drunk driving and is punished that way. In the U.S., only the heavily Mormon Utah prosecutes buzzed drivers like a DWI. The Problem is the Choices We Make The political problem with all of these steps, of course, is that they restrict freedom, and we Americans like our freedom. Though many people remain skeptical of driverless cars, especially when they’re being tested on our streets, side by side with us, the thought of trusting our lives to a computer as we hurtle down a... read more

Navigating Black Ice in New York

Winter navigation of our busy streets and highways is tough enough when the roads are snowy. But learning how to detect, then navigate, through black ice on the streets is a safety prerequisite to driving (and walking) outdoors during our cold winter months. So we want to share some information you can use, including a few tips to deal safely with black ice this cold winter. First, let’s dispel the idea that black ice is really black. It isn’t. It’s very clear, and probably gets its name because you can see the asphalt underneath it so easily.  Black ice is sneaky because it sometimes can be mistaken for a wet street. Black ice is a thin, smooth surface that can form quickly, making it even more difficult to detect. Because it looks like a relatively harmless wet street, you might naturally approach it the same way you would if you had perfect traction. Don’t! It is caused by light precipitation – usually a fine mist – rather than snow or slush and can build up in less visually obvious places. When this fine precipitation hits pavement that is beginning to freeze (32 degrees Fahrenheit/0 degrees Celsius), a thin, glassy layer of ice is the product. There are a few warning signs that suggest black ice is beginning to form. When it’s freezing and there is wet precipitation, rain and sleet will begin to freeze on the highway upon impact. This smooth icy surface can also appear on busy highways in much cooler temperatures because the friction of the tires on the road melts the snow or slush and brings the pavement to the perfect black ice freezing point. Watch your vehicle’s outside temperature gauge when the outside ambient temperature begins to approach freezing: Encountering black ice is possible. Be especially cautious on bridges, viaducts and overpasses, because they are exposed on the top and bottom, which cools faster and creates conditions conducive to black ice. It can also form at the bottoms of hills and in areas that are heavily shaded. A good tip is to drive like you have a raw egg between your foot and both the brake and accelerator pedals. The secret is, “gentle does it.” If you’re anticipating possible black ice: Turn your lights on. Drive slowly and don’t tailgate. If the roads look wet or dark, watch the vehicle in front of you. If the wheels aren’t leaving tracks or spraying water, it is likely black ice. Do not use cruise control. And learn to “feel” the road with your feet that cruise control cannot do. If you drive a manual transmission, shift to a lower gear for more control. Do not be lulled into a false sense of security if your car has anti-lock brakes. Antilocks are most useful in correcting skids on rainy, wet roads... read more

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