Burley Garcia|New York roofing contractor pleads guilty to OSHA violation involving worker's death in 2022

WHITE PLAINS,Burley Garcia N.Y. — A 41-year-old roofing contractor with an extensive record of violating safety regulations faces prison time and a hefty fine for the 2022 death of an employee at a New York construction site.

Jose Lema, the founder and principal of the New York-based roofing company ALJ Home Improvement Inc., pled guilty to one count of willfully violating safety regulations of the U.S. Occupational Safety and Health Administration, the U.S. Department of Justice announced Monday. Lema faces a maximum sentence of six months in prison and a maximum fine of $250,000.

Lema, also known as "Jose Lema Mizhirumbay," has a long history of safety violations and two employee deaths on his record, OSHA and prosecutors said. From 2019 to 2023, OSHA said inspectors performed eight investigations of ALJ worksites that resulted in the issuance of 24 willful citations, 16 serious citations, and more than $2.3 million in penalties.

His sentencing is scheduled for May 22 at the U.S. District Courthouse in White Plains.

Lema's guilty plea follows the Justice Department’s pledge in 2022 that it would closely work with the Department of Labor and its subsidiary agency OSHA to "pursue cases relating to worker safety and safe working conditions," according to the global law firm Reed Smith.

Since then, the Justice Department has announced several prosecutions against employers whose safety violations led to fatalities, according to news releases from the agency.

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Guilty plea covers employee dying at a construction site

Lema's guilty plea on Monday covered the death of an ALJ employee who with three other employees was installing a roof on a three-story multi-family apartment building in New Square, New York.

According to the federal complaint, the employees ascended a ladder to the roof and within 20 to 30 minutes of one of the men fell 30 feet off the roof. The man died from his injuries.

While the man wore a safety harness, there was no lanyard, rope, or any other attachment connected to the D-ring on the back of the harness that would have connected him to the roof, the complaint states. There were also no anchors on the roof to attach a rope.

"(Lema) endangered the safety of his workers by disregarding regulations and failing to ensure his employees used fall protection systems," U.S. Attorney Damian Williams said in a statement Monday. "This conduct led to the tragically avoidable death of a roof worker at a construction site. Failure of small businesses to comply with safety regulations endangers workers and can lead to unnecessary and preventable tragedy."

Jose Lema cited for numerous safety violations

Lema has been cited by OSHA multiple times for violating safety regulations for his workers and the agency had investigated ALJ six times before the New Square death and once after.

Another Lema employee died after a fall on Feb. 27, 2019, when he slipped off the roof of a newly constructed three-story home in Kiamesha Lake, New York. The worker fell 35 feet to the ground and died from his injuries.

OSHA determined the man had not been wearing a safety harness and issued citations to ALJ for, among other things, failure to ensure employees wear fall protection systems. Lema's company agreed to pay a penalty for the violations and the man's death.

The complaint states that even after the first worker's death, Lema continued to violate OSHA standards and failed to protect his employees. There were five more incidents at different worksites in New York and New Jersey between 2019 and 2022 in which ALJ employees were exposed to fall hazards, according to the complaint.

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Fatal occupational injuries in the U.S.

In 2022, there were 5,486 fatal work injuries recorded in the country — a 5.7% increase from 5,190 in 2021, according to the U.S. Bureau of Statistics' 2023 report.

Transportation and material moving workers represented the occupational group with the most fatalities in 2022 with 1,620 incidents, the report states. The next highest group was construction and extraction workers with 1,056 fatalities, an 11% increase from 2021.

According to Andrew Brought, an attorney with the law firm Spencer Fane, OSHA violations were generally not charged criminally by federal prosecutors.

"From an evidentiary standpoint, the primary OSH Act crime requires the government prove that the employer willfully violated a safety standard and the violation caused the death of the employee," Brought said. "Also, because an OSH Act crime is a misdemeanor, and not a felony, the maximum punishment is capped at $500,000 as a Class B misdemeanor (although subject to the Alternative Fines Act)."

He added that OSH Act crimes also apply to "any employer," resulting in companies being frequently charged and sentenced with a fine instead of individual imprisonment.

In March 2022, Attorney General Merrick Garland confirmed that the Justice Department would collaborate with the Labor Department to protect "fair wages, fair terms of employment, and just working conditions." 

In May 2022, a corn milling company and several of its management employees were charged with crimes related to worker safety, fraud, air pollution and obstruction of justice, according to the Justice Department. Three months later, the department prosecuted a Florida power company and an Alabama plastics manufacturing company for willfully violating safety regulations that led to workplace fatalities.

Steve Lieberman covers government, breaking news, courts, police, and investigations. Reach him at [email protected] Twitter: @lohudlegal