Massachusetts Workers' Compensation Lawyer Blog
Virtually all Massachusetts employees are eligible for workers’ compensation insurance coverage, even if they work for a temporary agency or are undocumented immigrants. Their survivors are eligible for workers’ compensation benefits if the worker dies in a job-related accident.
Worker Killed While Cleaning Machinery
A sanitation supervisor at the New Bedford, Massachusetts plant of Sea Watch International died in January 2014 when his clothing became ensnared in the rotating shaft of a clam-shucking machine’s engine while he was cleaning the device. Victor Gerena, 35, died, leaving five children without a father. Gerena had worked at the plant for 18 years. Gerena worked for Sea Watch through a temporary employment agency, Workforce Unlimited. In June 2014, both companies were cited by the federal Occupational Safety and Health Administration (OSHA) and fined a total of $44,410 for their violations. An OSHA spokesman emphasized that the fines reflected the seriousness of the safety lapses, not the value of Victor Gerena’s life. The children may receive Social Security benefits and may also receive workers’ compensation benefits, since all employers in Massachusetts must insure their workers, with very few exceptions. This requirement also applies to an “employee leasing company” like Workforce, which supplies employees by contract to other companies.
Citations For Safety Violations
The violations against Sea Watch were for the plant’s failure to implement safety protocols to protect workers while they cleaned potentially dangerous machinery. The violations included failure to provide a lockout device, incomplete lockout/tagout procedures, not conducting periodic inspections of these procedures to ensure that all requirements were being met, and failure to train all affected sanitation employees in lockout/tagout procedures. In the opinion of OSHA investigators, if Sea Watch had followed those safety protocols, Victor Gerena would not have been killed. Sea Watch’s plant on Antonio Costa Avenue in New Bedford was cited by OSHA for seven violations, and the company was fined $35,410.
Of 200 workers at the Costa Avenue plant, only 15 were full-time Sea Watch employees. The remaining 185 workers were employed on a temporary basis through Workforce Unlimited, a firm headquartered in Rhode Island. OSHA cited Workforce for three violations: lack of lockout/tagout procedures, lack of chemical hazard communication training, and exposing workers to ladder hazards. Workforce Unlimited was cited as a joint employer because it had a supervisor on-site with knowledge of the working conditions. OSHA fined the company $9,000.
Using Temporary Workers Undermines Safety For All Workers
The seafood processing industry relies heavily on immigrant workers supplied by temp agencies such as Workforce. Victor Gerena, born in Puerto Rico and an employee of Sea Watch for 18 years, was nevertheless employed through the temp agency, like the vast majority of the company’s workers. Companies often use temporary workers because their job insecurity makes them less likely to complain about unsafe working conditions, leading to greater dangers in the workplace for all workers, since even the permanent employees know they can be replaced by temporary workers at any time. This practice of not employing workers on a permanent basis leads to companies’ offering little or no health and safety training for their employees, according to Jonny Arévalo of the Massachusetts Coalition for Occupational Safety & Health.
Sea Watch is headquartered in Maryland, and in addition to the New Bedford facility also has plants in Delaware, Maryland, and Virginia. It specializes in its own brand of canned and frozen clams, gathered by its 30 clamming vessels. OSHA states that it fined Sea Watch $4,675 in 2011 for violations including “hazardous waste operations and emergency response” and “respiratory protection.”
Adrian Ventura, executive director of Centro Comunitario Trabajadores, stated that the fines imposed by OSHA in the Gerena case were inadequate and would not force the company to change its safety practices and procedures. In his opinion, only extensive training for owners and supervisors in workplace safety and hazards would make them more alert to the rights of their workers. Even undocumented immigrants are entitled to all the rights available under the workplace safety regulations and the workers’ compensation system in Massachusetts, and more employers need to be reminded of that fact.
If you have become ill or been injured at work, contact a Boston workers’ compensation attorney at Pulgini & Norton to schedule a free consultation to find out more about what our lawyers can accomplish for you. Contact us with a brief description of your situation or reach us by phone at our Downtown Boston, Hyde Park, or Braintree, Massachusetts office locations.
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