SEATTLE — A West Seattle construction company owner is facing jail time in a milestone case that’s holding an employer criminally responsible for a preventable worker death. According to a Washington State Department of Labor & Industries Press Release, Alki Construction owner Phillip Numrich was sentenced in early March to 45 days in jail for his role in the 2016 trench collapse death of 36-year-old Harold Felton.

The criminal case followed a Washington Department of Labor & Industries (L&I) investigation that found Alki Construction knowingly ignored basic, common sense safety rules that have been in place since the 1970s. If followed, those practices could have prevented Felton’s tragic death. L&I cited and fined the company for multiple workplace safety violations.

After a state Supreme Court decision cleared the way for prosecution, the King County Prosecutor moved forward with a felony charge of second-degree manslaughter. Numrich agreed to plead guilty to Attempted Reckless Endangerment and was sentenced.

It is extremely rare for an employer to face jail time as a result of an on-the-job fatality. Joel Sacks, L&I director, said, “The ultimate responsibility to keep workers out of needlessly dangerous situations lies with the employer. Trench safety standards have been in place since the 70s—there’s no excuse to justify ignoring them or any other workplace safety requirements. Employers must be held accountable when they put their workers lives at risk.”

Numrich will also serve an 18-month probation that limits his contact with the Felton family and the type of work his company can perform. If he fails to meet the terms of that probation, he may be required to serve an additional 45-day jail term. Also, Alki Construction pleaded guilty to violations of the Washington Industrial Safety & Health Act and will pay a $25,000 fine. This is in addition to a fine issued by L&I in 2016 in connection with this investigation.

Safety Violations After several days of heavy rainfall, Numrich allowed work to go on in an eight to ten-foot deep trench, even though he had only brought enough shoring (safety equipment) to protect two of the four sides of the trench from a cave-in. In the construction industry, it is common knowledge that soil becomes less stable following heavy rains. When the sides collapsed, Felton was buried under more than six thousand pounds of dirt.

CSC Co-Chair Named To Power 75

PHILADELPHIA – Bruce Ficken, chair of the Cozen O’Connor Construction Law Group, has been named to City & State’s 2022 Construction Power 75 list. City & State’s Construction Power 75 list identifies the leading builders, contractors, public officials, construction managers, consultants, lawyers, and advocates who are building — and rebuilding — the commonwealth.

Ficken, who also serves as co-chair of the Construction Super Conference, has successfully conducted more than 60 major trials in the United States and in international arbitrations. He has also helped numerous owners and developers with contract documentation, contract and project administration, and dispute avoidance and resolution. He is an arbitrator for the American Arbitration Association and as a mediator he has successfully helped resolve major construction disputes.

Ficken is one of only a few construction litigators invited to be a fellow of the American College of Trial Lawyers, and he was named by Best Lawyers as the 2017 and 2020 Philadelphia Construction “Lawyer of the Year.” Chambers USA: America’s Leading Lawyers for Business ranks Ficken in Band 1 for construction law.

Under Ficken’s lead, Cozen O’Connor’s construction group has grown significantly over the past year, expanding the group’s presence to Florida and Boston. Additionally, the group was named a 2021 Law360 Practice Group of the Year.

DOL Reviews Davis-Bacon Act

WASHINGTON – The U.S. Department of Labor recently published a Notice of Proposed Rulemaking as it considers updating the regulations that implement the Davis-Bacon Act and Davis-Bacon and Related Acts. The proposed rulemaking by the department’s Wage and Hour Division represents the most comprehensive review of the Davis-Bacon Act regulations in 40 years.

The proposal seeks to speed up prevailing wage updates, creating several efficiencies in the current system and ensuring prevailing wage rates keep up with actual wages. Over time, this would mean higher wages for workers. “Federal dollars should be used to create good jobs in local communities all across our country,” said Secretary of Labor Marty Walsh via press release. “These proposed regulations are good for workers, good for building high-quality infrastructure and for ensuring we have a strong construction industry, as we rebuild America.”

There are 71 DBRA laws applicable to federal and federally assisted construction projects that require the payment of locally prevailing wage rates for 1.2 million U.S. construction workers. The requirements currently cover approximately $217 billion in federal spending on construction each year.

Proposed changes include:

• Creating several efficiencies in the prevailing wage update system and ensuring prevailing wage rates keep up with actual wages, which over time would mean higher wages for workers.

• Returning to the definition of “prevailing wage” used from 1935 to 1983 to ensure prevailing wages reflect actual wages paid to workers in the local community.

• Periodically updating prevailing wage rates to address out-of-date wage determinations.

• Providing broader authority to adopt state or local wage determinations when certain criteria is met.

• Issuing supplemental rates for key job classifications when no survey data exists.

• Updating the regulatory language to better reflect modern construction practices.

• Strengthening worker protections and enforcement, including debarment and anti-retaliation.

The DBRA’s stated purpose is to ensure employers on federally funded or assisted construction projects pay locally prevailing wages to construction workers and to prevent the unintended consequence of depressing workers’ wages during the government’s extensive construction contracting activity.

“Given recent unprecedented investments in our nation’s infrastructure, this comprehensive regulatory review is necessary to ensure employers on federally funded or assisted construction projects pay fair wages to the workers who build our roads, bridges, federal buildings and energy infrastructure,” said Acting Wage and Hour Division Administrator Jessica Looman. “The Davis-Bacon and Related Acts benefit construction workers, their families, their communities and taxpayers by ensuring all contractors can compete on equal footing and by preventing employers who pay workers substandard wages from gaining an unfair competitive advantage.”