Advocates optimistic for Scaffold Law reform in 2016
New York state”™s 130-year-old Scaffold Law will remain on the books another year after lawmakers chose not to address the construction industry”™s concerns over what critics say is costly legislation.
The law, which dates back to 1885 and was originally called “An Act for the Protection of Life and Limb,” largely places worker-injury liability on property owners and contracting firms who are in charge of the work being done, which includes painting, cleaning and demolishing or erecting a building.
Proponents of reforming the Scaffold Law, which is unique to New York, argue that it inflates insurance costs for construction projects and makes workers less responsible for safety. Opponents say contractors should bear the responsibility of maintaining safe work environments.
- The Castle apartments on Willett Avenue in Port Chester. File photo
Construction industry representatives and business groups say more of a safety burden should be put on workers with a comparative negligence clause. A proposed amendment to the Scaffold Law would allow a jury to allocate a percentage of fault to each party that shares any responsibility for the injury.
“Allow a defendant to be a defendant and have their day in court,” said Matthew Pepe, executive director of the Building Contractors Association of Westchester & Mid-Hudson Region Inc.
Geoffrey Pope, a lawyer with the firm Welby, Brady & Greenblatt LLP that represents mostly union contractors, said not all construction site injuries are subject to the Scaffold Law.
“It”™s essentially falling materials or falling workers,” he said, “where the employer has failed to provide proper protective equipment.”
The reformers”™ progress in Albany has been mostly stagnant the last two years.
“It”™s not a very sexy headline if you”™re trying to make headlines,” Pepe said. “We”™re as close as ever to get something done, it”™s just unfortunately we can”™t get it as a priority on anyone”™s list. It”™s in their head, but it”™s not a priority yet.”
The peak of these reform efforts by the Building Contractors Association, among others, was reached during the 2013 legislative session, but rebuffed by then-Speaker of the Assembly Sheldon Silver.
A spokesman for Silver was quoted in a 2013 New York Daily News article saying, “Changes to the Scaffold Law are not being considered. We don”™t think it”™s the right policy to further burden injured workers.”
Silver was arrested earlier this year on accusations that he benefited from more than $3 million in kickbacks by using his position in the Assembly to refer potential clients to his job outside of the government. Silver was a lawyer with Weitz & Luxenberg, a personal injury law firm.
Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York, said Silver and the New York State Trial Lawyers Association are two of the biggest impediments to reforming the Scaffold Law.
“Silver was acting on the behalf of these trial lawyers,” Stebbins said. “They put a lot of money into the pockets of Albany.”
And Stebbins isn”™t the only one who thinks the trial lawyers are a force to be reckoned with.
“The trial lawyers are the single most powerful political force in Albany,” Gov. Andrew M. Cuomo said in an 2014 interview about the Scaffold Law with the editorial board at Crain”™s.
For the last two years, as construction industry representatives and business groups have tried to ramp up the fight in Albany, the law”™s defenders have kept the issue off the docket.
The New York State Trial Lawyers Association did not directly respond to requests for comment, instead providing a statement from the Scaffold Safety Coalition, of which the NYSTLA is a member.
“Legislators of both parties, in both the Assembly and Senate, have long supported worker safety laws like the Scaffold Safety Law, and we expect that they will continue to stand up for working New Yorkers in the years to come,” Josie Duffy, a policy advocate for The Center for Popular Democracy and a partner in the Scaffold Safety Coalition, said in the statement.
Local 32BJ of the Service Employees International Union did not respond to requests for comment.
Reformers, however, maintain that this issue will not go away and will continue to be a costly burden for New York business.
“We”™re going to continue to talk about the Scaffold Law and the real pain that it is to businesses in New York,” said John Ravitz, executive vice president and chief operating officer of The Business Council of Westchester.
A 2013 study frequently cited by groups in favor of reforming the law and conducted by the Rockefeller Institute of Government found that the Scaffold Law costs taxpayers about $785 million a year.
The burden on taxpayers has to do with the insurance premiums on public works projects. The cost of insurance for construction jobs is outrageously high, Scaffold Law reformers say, because there are not many companies in the market that want to insure construction jobs.
“You”™re lucky if you can get two quotes” on a project, Pepe said. “You either take that quote or you go out of business.”
Stebbins, who before joining the Lawsuit Reform Alliance was a developer of wind farms, said he had projects all over the Northeast, with New York having by far the highest insurance costs.
“My company was asking for $3 million in general liability insurance” in New York, Stebbins said. The next highest, he added, was in Pennsylvania at $500,000.
To combat this, Scaffold Law defenders have pushed for legislation that would make construction insurance more transparent by requiring insurers to provide information about Scaffold Law-related claims.
“That”™s a complete red herring,” Stebbins said. Insurance companies, he said, can”™t adequately gauge risk if the client is more likely to be at risk for worker safety.
But for now the fight for and against the Scaffold Law will have to wait until January when the Legislature reconvenes.
“We”™re certainly more optimistic and more and more organizations are identifying this as a problem,” Stebbins said. Though many are unsure about the position of the new Assembly speaker, Carl E. Hastie, Cuomo could be the answer for reform next year.
“In the past he”™s had to run up against Speaker Silver,” Stebbins said, but now, “Governor Cuomo is in a unique position to push for reform.”