UPDATE: On December 23, 2022, Governor Hochul signed this bill into law.

*  *  *

On December 12, 2022, the New York State Legislature passed a workplace safety bill known as “Carlos’ Law.” This bill, originally introduced in 2017 and named for an individual who died on a construction worksite in 2015, would amend the Penal Law in relation to incidents involving the death or injury of a worker. It is anticipated that Governor Hochul will sign the bill, which will significantly raise penalties for employers in the event of a workplace fatality or injury. Carlos’ Law will take effect 30 days after signature. Carlos’ Law aims to “protect workers from corporations and their agents that fail to comply with safety protocols.” In the view of the bill’s original sponsors, the new measure is necessary to address the fact that prosecutions under the Occupational Safety and Health Act (“OSH Act”) are rare and the fines and other punitive measures under the OSH Act supposedly have not done enough to encourage employers to take steps to ensure safer working environments. If signed, Carlos’ Law will:

1. Impose criminal liability on a corporation when the conduct constituting the offense is committed by an agent of the corporation while acting within the scope of their employment and on behalf of the corporation, and the offense is “in relation to a crime involving the death or injury of a worker.”
    
2. Require a court to set restitution or reparations when a corporation is found guilty of an offense involving the death or injury of a worker.
    
3. Impose a fine of not less than $500,000 nor more than $1 million when a corporation is convicted of a felony involving the death or injury of a worker.
    
4. Impose a fine of not less than $300,000 nor more than $500,000 when a corporation is convicted of a misdemeanor involving the death or injury of a worker.

Carlos’ Law would substantially increase penalties associated with workplace injuries or fatalities. To compare, the minimum penalty for a misdemeanor associated with a workplace death or injury before Carlos’ Law was $5,000, and the maximum penalty was $10,000. The bill’s text highlights one of its main goals:

This bill increases punitive measures so that corporations and their agents who ignore or fail to follow safety protocols and procedures and put workers at risk are less likely to write off serious workplace injuries as a minimal cost of doing business, and more likely to give workplace safety the serious attention it requires.¹

An earlier version of this legislation would have created a new crime known as “Endangering the Welfare of a Worker.”² This version would have held supervisors or corporations criminally liable when, acting with criminal negligence, the supervisor or corporation exposed a worker to a risk of physical injury. However, this language was not included in the version now on its way to the Governor.

While Carlos’ Law was prompted by incidents in the construction industry, all employers should take note of this development, as there is no language in the bill that limits its enforcement to a single industry. Also notable is the fact that the bill applies to all injuries, not just serious physical injuries, and that fines under Carlos’ Law are separate and apart from those that could be imposed by the federal Occupational Safety and Health Administration or local agencies.