Sunday, September 18, 2016

In building boom, immigrant workers face exploitation

Poor people who don't pay fines for minor offenses often end up in jail, where they are can't work and are charged additional fees. But these contractors are not held to account.

If someone hires a contractor or subcontractor who has a history of such immoral actions, they are acting immorally themselves.

By Beth Healy and Megan Woolhouse Globe Staff September 18, 2016

Luis Mayancela was 15 years old when he fell from the roof of a house in Portland, Maine, where he was helping fasten shingles. He tumbled two stories, severely breaking his leg.

His employer did not call an ambulance. Instead, a co-worker drove the Brockton High School freshman 75 miles in an old work van, across state lines, to a hospital in Massachusetts. As they crawled through rush-hour traffic, Mayancela had no idea his boss would try to dodge responsibility for the accident.

He is one of thousands of immigrants, many undocumented, helping meet the demand for workers in the region’s booming construction industry. They haul slabs of sheetrock and climb rooftops and dusty scaffolds, doing often dangerous work for contractors seeking cheap labor.
[A few years ago, a friend of mine who was out of work complained that it used to be that when he was between jobs, he could get a job in construction that paid enough to get by until he could get a job in his field. Now, because of the availability of cheap immigrant labor, construction jobs pay poorly.]

A Globe investigation found that these workers, eager for a paycheck, are often paid below the prevailing wage and illegally, in cash. They are also the most likely to be subjected to unsafe work conditions, without insurance to cover medical bills or lost pay if they get hurt. And the unscrupulous contractors who employ them are too seldom caught and penalized.

“This is not about catching a few bad actors that are dragging down the industry,’’ said Diego Low, director of the Metrowest Worker Center in Framingham, which helps workers fight for fair wages and safety. “We’ve evolved a system for providing subsidized labor to build our houses, and it’s based on the vulnerability of the workforce.”

Federal officials identified 910 “willful or repeat violations” that involved hospitalizations or deaths in the Massachusetts construction industry over the past three years, according to public records requested from the US Labor Department’s Occupational Safety and Health Administration. Of those, 98 percent took place on jobs run by nonunion contractors, OSHA said.

The real number of injuries is likely higher, advocates and government officials said, because undocumented workers on these job sites often are pressured not to report accidents.


A dozen immigrant workers repeatedly sought a combined $150,000 in back wages from a New Hampshire drywaller who, they said, threatened not to pay them if they quit. When they finally made plans to leave, he left a profanity-laced voicemail on the phone of one of the workers.

A former Boston restaurateur-turned-contractor routinely failed to pay immigrant construction workers, even after they traveled to his home to complain and court judgments were entered against him.


Plenty of US citizens and documented workers get hurt in construction, too. But undocumented immigrants, deeply woven into the fabric of the economy in ways often overlooked by the public and political candidates, face additional struggles.

Many do not speak English and are unfamiliar with federal and state labor laws, which require employers to pay them at least minimum wage and carry workers’ compensation. These workers are often improperly characterized as independent contractors by employers who want to avoid paying their insurance and payroll taxes.


When injured, these workers can get lost in medical limbo. If they tell doctors they were hurt on a work site but have no pay stubs or documentation to prove who their employer is, it can be next to impossible to get care, according to lawyers, advocates, and regulators.

That’s what happened to a 16-year-old Guatemalan youth, nicknamed Baby, on the work sites of a Lynn contractor. He plunged to the ground last fall from a ladder while lugging too much wood for his 118-pound frame.

His employer dropped him off at home that night instead of taking him to a doctor, according to the boy’s account to the Globe, his lawyer, and advocates. He was for months declined medical care because he had no legal guardian and no employer offering to pay his insurance, his lawyer said.

In another case, Isidoro Peralta, the Ecuadoran roofer, had to fight for medical care for a year-and-a-half after falling from a ladder in Waltham. While he waited, his collarbone healed improperly and he could no longer lift weight with his right arm. He was out of work, without pay, and in pain.

When Peralta talked to his employer at AN Construction, “Nothing happened,” he said.

Indeed, his boss, Angel Namina, denied to his insurer that Peralta was hurt on the job, according to Peralta’s workers’ compensation claim filed with the state.

The owner of the Milford construction outfit did not answer calls to his phone and could not be reached. He has failed to pay a fine for a prior serious violation with OSHA for failing to guard against fall hazards, according to public records.


But those checks did not turn up problems at Force or with its general manager, Juliano Teles Fernandes.

Mayancela was receiving pay on the Portland job from Twin Pines Construction Inc., a company owned by Fernandes.

He and companies he has owned or managed have been cited for more than 100 violations since 2007, by federal safety regulators, including some that endangered workers’ lives, according to public records.

Over his career, Fernandes has racked up obligations and fines of $1.5 million with OSHA that have not been paid. The US attorney’s office in Boston is suing to collect those.

Fernandes and his Twin Pines firm were cited by the agency in May 2013 for serious and willful violations. That June, Fernandes let his workers’ comp policy lapse, according to public records. A month later, Mayancela fell from makeshift scaffolding in Maine.

Fernandes would claim to OSHA investigators that yet another subcontractor was the teen’s employer. But if there was such an assignment, it was informal and did not relieve Fernandes of his responsibility. The insurer for the other subcontractor — the same as Force’s — ultimately covered the claim. Force, which has had offices in Woburn, Clinton, and Lunenburg, was cited by OSHA in the Mayancela case for having a child under age 16 do hazardous construction work and for failing to keep proper date-of-birth records.

It’s illegal in Maine to hire anyone under age 18 for roofing. Yet the fine was modest: $15,350.

Meanwhile, even the serious injury of a 15-year-old and a string of fines didn’t move Force or Fernandes to change their ways. Last December, Force was sanctioned yet again, for exposing roofers to potentially fatal fall hazards, and for what OSHA called “unacceptable behavior that must change before a worker’s life or career is destroyed.’’

Fernandes could not be located at his listed addresses and declined to comment through a spokeswoman. This summer, federal authorities reached a settlement with Force to pay $2.4 million in back wages and damages to 478 workers for “willful” violations.
[But will he pay it? He wasn't paid previous fines. Poor people who don't pay fines can end up in jail for minor offenses. Fernandes should have already been in jail for his actions.]


STACIE SOBOSIK, the Medford attorney who represents injured workers, said the most frustrating part of these cases is how general contractors persist, even after egregious workplace violations, in hiring abusive subcontractors.

“They don’t care. They’re going to keep using this company because they’re cheap labor,’’ Sobosik said. “There’s a reason that they’re so inexpensive compared to the market,’’ she said. “It doesn’t come free, that discount.”


EVEN WHEN AUTHORITIES do catch firms breaking the law, it can be cheaper for employers to pay fines than follow the rules. Some firms simply skip town and open under a new name.

Of the 1,300 complaints to the Massachusetts attorney general over the past three years, the office issued 455 citations against construction employers, sometimes multiple times, seeking restitution totaling $2.4 million and nearly $1 million in penalties, according to public records requests.

But companies often fail to pay even small sums. Healey’s office has collected just one-third of the $1.7 million in violations since January 2015, or $580,234. The bulk of the rest is under appeal or past due.


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