Safety and OSHA News

Safety training: Owner, supervisor jailed for worker’s death

Prison

OSHA can’t send people responsible for workplace safety to jail. But they can refer cases to local prosecutors who are able to seek prison time. That’s what happened in this case, and now two men will be locked up.

Sam Hyung Goo Shim, owner of roofing company California C&R, and his foreman, Jwa Young Kim, have both been sentenced to county jail in connection with the January 2008 death of an employee. Shim will serve one year. Kim will serve at least six months of a one-year sentence.

Antonio Martinez was one of several employees working on a roofing project at a four-story apartment building in San Francisco. As he was working along the roof’s edge, Martinez fell 38 feet to the sidewalk below. The fall killed him.

Cal/OSHA found that there were no safety measures in place at the work site.

Even though the foreman was present, workers on the roof didn’t have harnesses or any other type of fall protection. There were no railings, scaffolds or other barriers to prevent a fall. There were also no written safety policies or safety training.

Cal/OSHA fined California C&R $70,485. But that’s not all it did. It also referred the case to the San Francisco District Attorney.

The DA prosecuted, and the owner and foreman negotiated a plea agreement. The men must also pay restitution.

Shim pled guilty to four felonies: involuntary manslaughter, willful violation of a Cal/OSHA order causing death, workers compensation premium fraud and tax evasion.

Kim pled guilty to one misdemeanor count of violation of state labor code.

Do you think prison time was justified in this case? Let us know what you think in the Comments Box below.

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  • Fred

    Willful violations of the law that lead to an employees injury or death should be prosecuted.

  • Karen Collins

    NO because it is being enforced selectively against people in California. YES if was being enforced nationwide. People die in the workplace all the time. The employer did not remove a safeguard that was in place. Most small construction companies don’t have such programs in residential construction.

  • Ruth Lutes

    I absolutely agree with Fred. Willful violations – absolutely – prosecute. As for Ms. Collins – I disagree completely with her position. This is not about indiscriminate prosecution. The issue here is not that the employer removed a current safeguard but rather that NONE were in place at all. The size of the company and the work conducted – whether in residential or commercial construction is immaterial. And as for “people die in the workplace all the time” – if that is your belief/opinion, I find it a rather sad commentary on the value of the American worker’s life! The OSHA laws are there to protect ALL of us in the workplace – so that no one should die (or sustain serious injuries) in the workplace at any time.

  • Molly

    Yes this ruling is correct. The company had no safety in place no training and no safety equipment.
    These are basic laws that all company owners should know or they should not be in business. I get tired of seeing these roofers on residential construction with no gear on. It a shame and any person willing to put a worker at risk should be up for prosecution for not providing the basic safety needed to go to work.

  • Hank

    If that individual acted in a deliberate, willfully negligent manner in some non-job-related area, resulting in the death of another, would it be legitimate to prosecute him and send him to jail? Yes, of course it would. So why should he be exempt simply because it occurred in the workplace?

    Karen, your argument in defense of these men is that since many employers break the law and expose their employees to deadly risk, then we should not prosecute the ones we catch? By the same logic we should not prosecute violent criminals or drug dealers or child molesters or spouse abusers when we catch them, since many other similar criminals are committing the same crimes but not getting caught.

    Doesn’t seem to make sense to me.

  • Alecfinn

    Please note:

    “Employers in California have a responsibility to provide the necessary protections for their workers in order to prevent a tragedy such as this”, said DIR Acting Director Christine Baker. “We will continue to exercise our full jurisdiction to protect workers and make referrals to the District Attorney for prosecution where appropriate.”

    The above is quoted from the press release on the link to Cal/OSHA. There were prior citations for a lack of a safety program and safety equipment……..

    “State occupational safety officials cited Shim’s company, California C&R Inc., in 2002 for not having a safety plan, which would include taking steps to protect workers against falls.

    He eventually agreed to a take a weeklong safety course and develop a plan to protect his workers, said Chris Kirkham, an associate safety engineer with Cal/OSHA, the occupational safety and the health arm of the Department of Industrial Relations.

    Cal/OSHA, however, was unable to monitor Shim’s job sites to see if he was complying, said Cora Gherga, the agency’s regional manager. Shim had no safety plan in place in 2008 when Martinez fell to his death, prosecutors said.”

    The above is a quote from SFGate the online addition of the SF Chronicle also a link in the Safety News Alert article

    In view of the above this whole fiasco is inexcusable. Just because a law it is not a national law it does not excuse any employer from complying with local and state laws. The sentence seems to me to be gentle as there was a fatality. I place all human life as more valuable than the sentences dished out.

  • Kenny

    The (senseless) death of employees never sat well with me. I think that, if the employer is aware of its obligations to keep employees safe (which pretty much means everyone), then everyone on that ladder (with the authority to orchestrate change) should be held accountable. Particularly at the highest levels.

    There is no excuse for bypassing safety. I’m so tired of employers cutting corners to save costs, whether it be manpower/resources for training, supplies, etc. You can’t put a price tag on safety, or the lack thereof — and worse, you can’t look me in the eye and give me a good enough excuse why my spouse/relative died because you didn’t feel that his/her safety was action-worthy.

    Yes, jail and restitution are an absolute must.

  • Notenoughregs

    Karen, really? This was a 4 story building but it could have been a garage. No safety precautions for a construction company rather it’s residential or commercial is inexecusable. They should get jail time. It really doesn’t matter how it has been applied in the past or even going forward. If we as a country take the position that we can’t prosecute because we haven’t prosecute those we haven’t caught yet. We would have no applicable laws at all. That’s some unreasonable thinking. The owner and foreman on the job were negligent. Scaffolding, harnesses are and should be standard safety equipment and if I’m reading this correctly it is. So, they willfully chose to ignore the law and that decision cause the death of their employee. Are you serious, they shouldn’t go to jail? Yes, they should and the owner should not be allowed to have another construction license for awhile without some kind of certified safety training and put on a watch list for a fews years – similar to probation. The foreman, well all I can say is he shouldn’t supervise anyone for a long time and should be required to have the similar training and follow-up. Just because the owner or manager tells you to violate the law, doesn’t mean you should. You do not have to follow an order by your employer to willfully break the law. Safety laws, financial laws any laws. That’s why they have whistle blower regulations.

  • Dana

    Sounds like double jeopardy!!(punished twice for same crime) I do not like the fact that the guy died and have sympathy for the family. Would it be better for CalOSHA to dish out bigger fines so the owner and foreman would have no choice but to continue working and the fines would go to the family of the deceased? Failure to provide for the family should then result in jail time, jail time does not benefit anyone in a case like this.

  • http://www.igrace.com George Seliger

    “Cal/OSHA found that there were no safety measures in place at the work site.

    Even though the foreman was present, workers on the roof didn’t have harnesses or any other type of fall protection. There were no railings, scaffolds or other barriers to prevent a fall. There were also no written safety policies or safety training.”

    I think this said it all.
    Id like to know when this will sink in?

  • Molly

    Jail time is the only thing that makes these companies know that this is a serious issue and they need to make the safety of workers a top priority. Injuries and illnesses cost so much for everyone and providing a safe work site has been proven to cost a hell of a lot less. If company’s don’t know the rules then they need to educate themselves. All this safety information is out there and has been there for years. If they won’t educate themselves then they should not be in business. This is a one punishment for one crime. That is the crime of ignorance!

  • Guest

    Cal/OSHA, however, was unable to monitor Shim’s job sites to see if he was complying, said Cora Gherga, the agency’s regional manager. Shim had no safety plan in place in 2008 when Martinez fell to his death, prosecutors said.”

    Sounds to me like they should be prosecuting someone at Cal/OSHA as well. If they were cited in 2002 for not having a safety plan, how did they ever get that case settled and still not have one in place in 2008?

  • alecfinn

    Guest:

    I agree that Cal OSHA needs to be more responsible as is indicated from the article in SFGate the online addition of the SF Chronicle

    “Cal/OSHA, however, was unable to monitor Shim’s job sites to see if he was complying, said Cora Gherga, the agency’s regional manager. Shim had no safety plan in place in 2008 when Martinez fell to his death, prosecutors said.

    Gherga said regulators rely on complaints to alert them to safety violations. “You do not know where the job sites are,” she said.

    She added that the state’s citation system is “akin to a traffic violation.”

    “You get a traffic ticket, you pay, maybe you go to traffic school. But it doesn’t mean that CHP will have to follow up to make sure you do not violate in the future,” Gherga said.

    Besides involuntary manslaughter, Shim pleaded guilty to willful violation of an occupational law causing death, worker compensation fraud and tax evasion. The last two charges stemmed from Shim’s failure to pay into the state worker compensation fund or pay his unemployment insurance taxes.

    Gherga said she hoped Shim’s one-year sentence “will be heard loud and clear” in the roofing industry.

    “This is the only silver lining I would see at the end of this case,” Gherga said.”

    Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/05/23/MN8P1JJR6H.DTL#ixzz1O3824HsA

    I find that whole statement disturbing to say the least, but then there are many that feel Government regulation right now is to invasive and restrictive of business growth……..But who then should monitor business to ensure the safety of all persons?

  • Guest

    But who then should monitor business to ensure the safety of all persons?

    State Worker’s Comp in conjunction with the Insurers seem like a better group to monitor businesses as they have a vested interest.

  • contractor

    I think the question should be did the employer provide the employees with the saftey equipment and train them on it ,if so did the employee break the rules or did the employer?

  • alecfinn

    contractor

    There was no training or safety equipment for the employees, in spite of the owners supposed commitment after taking a safety course from 2002.

  • alecfinn

    Guest

    Yeah I agree they should be active in investigating these cases. Enforcement I am not sure

  • FinanceGuy

    I am perplexed, when did we stop being a free market society? In this case, The death of the employee is tragic, and the employer had an obligation to the safety of their employee. But why is the State prosecuting?
    Law of supply and demand… If the employer does not fufill the supply of safety, he will have limits on his workforce. If employees feel unsafe they will (or Should)leave. It is not the obligation of the state to enforce the “Market” laws.

    Also we have a great thing in this nation called Civil law, this would be a great way for the employer to be punished by and for the benefit of the family of the harmed employee. But again why is the state prosecuting? In other words you are spending your tax dollars on the state prosecuting and incarcerating someone for being an IDIOT… Yes, I realize its California…

    I say enough BIG government… Let the little guys work, and yes, if they do not have an OSHA approved safety plan in place, they will be told how to do one (as in this case). Because All buisiness starts small, there are hurdles to overcome. We do not need Big Brother knocking us down at every turn. But after being told how to make things right, let the civil system take hold, dont throw them in jail because they are an idiot — Sue them instead.

  • alecfinn

    FinanceGuy

    OSHA and the state equalivants of OSHA are there to protect the workers and the public against situations such as this. In buisness there are guidelines established by the Government in order to keep us safe be it being a worker the public or the environment.

    I appreciatre the comments about big government and I agree it is ungainly as well as inefficent. But this owner and forman were turned over to the DA because of no safety training equipment or precatyions. That is inspite of warnings that date back almost 9 years. An employee fell to their death because of the lack of any safety training and equipment. That is the point of the jail santence this was negligence that caused a death.

    As far as Government being too big an poking its nose into everything in the area of on the job safety and environmental concerns I can see no other entity that is able to do this. The lack of oversight in many areas of buisness allows for things that can be prevented to happen. I have heard all the complaints about big Government how it strangles buisness makes operations inpossible etc but look at the above……….The way Cal/OSHA works is they inspect cite but then have to be triggered to follow up in this case there was death.

    I have worked in the private sector as well as the public sector. The longer I live the more I find myself moving away from my former attitude of Buisness will do it right because it is good for buisness. If that were the case situations such as the above would be happening less and there would have been no cause of agencies like OSHA, DOT, EPA, DOL, DOH, etc. The same could be said for the Unions (I also worked as a unionized worker a Union Rep. a supervisor in a union house a Dept head in both Union and Non Union houses). It is easier to manage non-union employees for you do not have to be as strict to get compliance with house rules and most things can be settled quietly. In places where treating staff with dignity and respect…

  • Molly

    I can say that this employer had an opportunity to correct the violations and they chose not to. That’s called a willful and repeat violation. The laws are written so the employee cannot sue his employer but he can sue the general contractor and now the owners of the properties. This has nothing to do with Union or Non Union. I work in a Union trade and our safety standards far exceed the basic laws set forth by OSHA. We have more training and keep our workforce educated. All my brothers and sisters of union trades want all workers to be safe and to have a safe work environment. They know what the rules are and how to work safely. The Big Brother issue has not a thing to do with this and YES they should put these offenders in Jail. This is as close to Murder as you can get and they need to be prosecuted…

  • DMac

    I agree with the ruling and conviction of these two operators. I wonder what Mr. Kim and Mr. Shim are thinking about these days. They have to take the good with the bad, as I wonder how much work they won because safety was not a factor in the bidding… As an employer one must be able to demonstrate some level of effort – in this case, apparently there was none….and a man died…how pitiful…

  • alecfinn

    Molly

    THANK YOU!!!!!

    I believe in keeping people safe, I found this story upsetting as well as some comments. My comments were to say that Unions and the various agencies are to help folk. That was how they came into existence. I ran out of space in my comments above inclosing I was trying to say that Unions and OSHA as well as the other agencies are not enemies but should be regarded as partners.

  • Phil

    I find the fact that the owner had already been cited and he committed to establish a safety program then did not is worthy of jail time. The foreman negotiating a misdemeanor may indicate that he had no knowledge of the safety requirements which is very possible since there was no company safety program or training.

    The owner choosing to not follow safety rules that he clearly knew is no different than a drunk getting in a car that he knows he should not be driving and going out and killing someone in with that car. He is still going to be charged with involuntary manslaughter in probably every state in the Union.

    I wish every employer were responsible and would put in place safety policies that would protect their emlpoyees, the enviroment etc. But they do not and often will not unless they are forced to. Even companies that claim to put safety first often cut corners with safety to save money when they think they can get away with it (project within budget). I’ve seen this several times in my career with several different companies. If we would really do the right thing OSA, EPA, and DOT would be out of business. But we do not so they keep getting bigger and bigger and bigger then we complain more and more and more.

  • Notenoughregs

    They probably paid a fine in 2002 and continued business as usual. So, making them pay a bigger fine for causing the death of one of their workers doesn’t solve the problem. The owner knew there would be consequences, the foreman knew there would be consequences. The owner took a calculated risk that nothing would happen and in all liklihood, he’s been taking that same risk regularly, he just hasn’t been caught. The foreman has been following the owners lead on this the same way. The owner should pay a very large fine and he should still go to jail or should I say his insurance company may pay a very large fine if they don’t cancel him for failure to comply with OSHA regs. He should be sued. The insurance company, of course, will pass their cost to rest of the busineses they insure. Others pay for his negligence too, either directly or indirectly.

    There’s no amount of money he can pay that will make this acceptable to that man’s family. They will accept the money but it will not be alright. Jail makes it a little palatable and it sends a message.

    As far as businesses policing themselves. That’s been the rule of thought for the better part of 4 or 5 decades and at every turn you see they can’t or won’t. In every industry you have a few companies who are doing the right thing and incuring costs to do so. They see others who are not, who get rewarded with being lower in price and getting more business. It disincentivizes the business trying to do the right thing and since they can’t lick’m the join’m and the problem grows.

    We see this happening everywhere. How many decades did the tobbacco industry fight legislation through lobbyists, paid scientist to muddy their findings, got their employees to hide the results; and finally, when the whistle blower laws came into being, the gov’t got verifiable proof not only of what every knew to be true but of their cover up also. This was a high profile case. This stuff goes on all over the place…

  • alecfinn

    Notenoughregs

    My G-d I have been severely criticized for similar comments in many forums. If businesses were responsible and did what was right we would not need this much oversight but the past shows different.
    10

  • DMac

    I can oly speak for what I see and hear – Our company does safety for two reasons (1) It is the right thing to do – we care about our employees. and (2) If safety is done right – it is efficient, it bleeds over to other functions that the business serves.

    Now, I am not naive – other businesses do not take this view on safety. I can see it from the street – it is plain as the nose on your face, but our watchdogs (OSHA/MSHA) apparently do not, that is, unti AFTER the catastrophe.

    In this case, both men should go to jail due to obvious negligence of their obligation to have a functional safety program, however, all businesses should not be lumped into the broad category of not caring for their people.

  • Chuck C

    Sam Hyung Goo Shim isn’t behind bars for singing too loud in the church choir. In addition to the neglegent death of an employee, his rap sheet shows he was operating a bootleg company…. tax evaision , workers’ comp fraud, etc

  • H. Rearden

    FinanceGuy Says:
    I am perplexed, when did we stop being a free market society?

    Your idea of a free market society could only exist in an anarchy, and I don’t think you’d like the results. Our republic works well when laws are used to provide a moral framework upon free market principles. Would your ‘free market anarchy’ prevent the perpetration of fraud? Using your logic, eventually the perpetrator would run out of victims. But what is the victims’ recourse without a set of principled laws?

    Unfortunately, laws have not been used to establish a moral framework. Instead those with influence have used it to shape the laws to benefit their financial interest, eliminating competition and preventing the operation of free market principals.

    But this is getting away from the issue. A better question is how can we structure a system by which negligent employers are more efficiently weeded out of the market? It is naive to believe that non-educated day laborers have the financial freedom to walk off a job because they don’t feel that their employer is providing adequate safety protection. Using this idea of free market principals lacks the moral structure to prevent the exploitation of the weakest members of our society.

    But your suggestion of using civil courts to provide remedy is a valid point. What is needed in addition is a method of private enforcement of safety standards. This could be accomplished by requiring employers to obtain private insurance to cover injuries and deaths that occur on the job. This would eliminate government run Workers Compensation and OSHA enforcement. Insurers would have financial incentive to enforce safety standards. Disputes concerning claims would be handled mush as they are today, through civil courts. Grievous violations of safety standards could result in criminal charges against the employer and insurer.

    How would such a system have worked in the situation described in the article? The…

  • H. Rearden

    The employer would have either been weeded out of the market by his inability to obtain insurance, or he would have provided adequate safety measures at the insistence of his insurer. Working without insurance and failing to provide safety measures resulting in a fatality would result in criminal charges – more than one year in jail, I would hope. Forget about some fine to go into the coffers of a government agency. Civil law would liquidate any assets the employer had for the benefit of the victim.

  • Kevin

    The workers should be responsible for their safety as well. Only a fool would put themselves in such a dangerous situation. Better a fool fall than another. Workers do the most stupid things (breaking company rules) yet the employer gets the blame!!! Must workers have their hands held and be spoon fed? Take responsibility for your own actions.

  • Chuck C

    Fred is correct. Karen you’re complaining that California is being singled out for enforcement. The last I heard was that Workers’ Compensation was a State run program not a Federal program. Sure they may receive some Federal money but it is up to each state to run their own program.

  • Shonkin

    Safety equipment is neither expensive nor impractical. It saves lives.

    My son-in-law is a roofer. Last summer he and his crew were reroofing a church when part of the roof failed and caused the footboard to break loose. He fell, but his safety harness saved him. Other than some minor cuts and scrapes he was unhurt. Without the harness he would have been dead.

    The lawyer for Shim and Kim evidently knew a jury was likely to convict them and advised them to cop a plea. I can only speculate on how severe their sentences would have been if they’d gone to trial.