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In NY, A Safety Showdown Grows

Thursday, February 19, 2015

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A unique state law that holds employers and property owners 100 percent responsible for certain employee injuries is facing a dramatic shift after 135 years.

A longtime effort to revamp New York State's 19th-century Scaffold Safety Law is gathering new momentum, fueled by two new bills, 25 legislative sponsors, and a "Reform Day" in the capital to promote the effort.

The bills would amend the Scaffold Safety Law, a 135-year-old law unique to New York that makes contractors and property owners fully liable in injury lawsuits if they fail to provide adequate equipment or training.

The law's backers—unions, safety groups and worker advocates united under the Scaffold Safety Coalition name—call the historic law a "common sense" measure that holds employers' feet to the fire in requiring protection for workers who don't know (or are afraid to invoke) their rights. They note that Latino and immigrant workers are disproportionately the victims of fatal and severe falls.

Critics, who have been calling for change for years, say they want a more equitable "comparative negligence" standard, which would consider the employee's fault in assessing liability after an accident.

2 Versions, 25 Sponsors

The bill's two versions, S00543 / A03209, are sponsored by Sen. Patrick Gallivan (R-Elma) and Assembly Majority Leader Joseph Morelle (D-Irondequoit).

scaffold safety law / Scaffold Law Reform

The proposed bill does not take away the right of any injured worker to sue, but "attempts to contain the costs of absolute liability in a fair manner by making an employee who directly contributes to his injury liable for the portion of fault assessed by a jury for his own conduct."

There are 11 co-sponsors between the two versions of the bill and 12 additional sponsors on the Assembly side. Both versions have been before their respective Judiciary Committees since January.

'Encouraging Workers to Take Responsibility'

The bill maintains the right of any injured worker to sue, but "attempts to contain the costs of absolute liability in a fair manner by making an employee who directly contributes to his injury liable for the portion of fault assessed by a jury for his own conduct."

"[I]t makes a recalcitrant worker responsible for his own conduct," the bill states. "This approach encourages workplace safety by encouraging workers to take responsibility for their own safety."

The "comparative negligence" standard would be applied only in limited circumstances, such as commission of a criminal act, use of drugs or alcohol, failure to use safety devices at the job site, failure to comply with employer instructions regarding safety devices, or failure to comply with safe work practices in accordance with a safety program provided by the employer. 

The bill also claims it encourages employers to provide training certified by the Occupational Safety and Health Administration or the State Labor Department to its employees.

The bill would clarify worker responsibility, by establishing a uniform standard for the application of the recalcitrant worker.

Rallying Around Reform

Supporters of changing the law say this may be their year, following the recent arrest and resignation of former Assembly Speaker Sheldon Silver on corruption charges. Silver was a leading defender of the current law.

Scaffold Law Reform Day

About 100 people, including contractors and small business owners, attended Scaffold Law Reform Day Feb. 10 in Albany, NY.

Meanwhile, a Scaffold Law Reform Day  held earlier this month in Albany also offered a platform for the law's critics.

Repealing the law probably isn't a "realistic legislative responsibility," said Gallivan, a speaker at the event who has championed the law's overhaul since taking office in 2011.

"We ultimately settled on reforming the law, to make it fair so that if you, the employer, has some fault, and you, the owner of the construction company, has some fault, the courts sort that out instead of you—the employer at fault and the construction owner and property owner—paying for everything," Gallivan explained.

About 100 people attended the event, including contractors, small business owners, developers, lawyers, municipal officials and advocacy group representatives, according to the Scaffold Law Reform coalition, a project of the Lawsuit Reform Alliance of New York, which organized the day.

'Fouth Branch of Government'

Louis J. Coletti, president and CEO of the Building Trades Employers' Association, also addressed attendees.

"Trial lawyers have become the fourth branch of government," said Coletti. "We have more data than there is snow outside; we need to make this push now!

"Reform for the trial attorneys isn't about workers' safety, it's about the money they earn in 240 cases."

The Scaffold Law Reform coalition previously tried to push for the passage of Assembly Bill 2835-2011, which would have given commercial property owners, business owners, contractors and municipalities the chance to defend themselves in court when an injury occurs due to negligence. (Homeowners are already exempt.)

'Hostility Towards Business'

"The Scaffold Law is the greatest symbol of New York's hostility towards business," said John Ravitz, executive vice president and COO of the Business Council of Westchester and a former member of the state Assembly.

OSHA fall hazards

Critics of the current law say it costs taxpayers $785 million annually. Defenders say the law protects  workers who cannot protect themselves or who are ordered to work in unsafe conditions.

"It drives up the cost of any building in New York, including public projects like bridges and schools. Everyone is playing for this Scaffold Law," Ravitz said, according to the White Plains Daily Voice.

Ravitz cited a report from the Nelson A. Rockefeller Institute of Government that estimates the law costs taxpayers $785 million each year.

On the other hand, the Brooklyn-based nonprofit Center for Popular Democracy called in 2013 to maintain the Scaffold Law, saying it helped level the playing field by holding employers responsible for workers who cannot protect themselves.

The center said shifting the responsibility to workers is unjust, because "construction workers often find themselves ordered to work in unsafe conditions, without safety equipment or with defective or improperly installed or secured equipment."


Tagged categories: Accidents; Fall protection; Fatalities; Good Technical Practice; Laws and litigation; North America; OSHA; Scaffolding; Workers

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