Tearing Down The Scaffold Law

A new coalition eyes reforms to a workers’ safety statute

New York is the last state in the nation to hold employers entirely liable for work-site injuries. A coalition of powerful business groups and tort-reform advocates aims to change that.

This is not the first time tort-reform advocates have tried to change the law, which has been in place in its current incarnation since 1969. But a new coalition that includes the powerful Business Council of New York State could inject new life into negotiations on reform, advocates suggested.

“We have been trying to repeal this law for 30-plus years,” said Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York. “One of the things we’re doing this year is pushing a reform of the law rather than a repeal.”

Under a bill sponsored by Assemblyman Joseph Morelle, the law would change to a “comparative negligence” standard. That means plaintiffs would have to prove they weren’t inebriated and were compliant with the site’s safety regulations in order to hold their employer liable for injuries sustained on site.

The amendment is getting top billing as part of a package of proposed reforms that are supposed to help New York grow its economy, which Gov. Andrew Cuomo has said is his top priority for the rest of his term in office. The coalition members, including Unshackle Upstate, the Business Council and the New York State Association of Realtors, are also part of the Committee to Save New York, which helped push Cuomo’s legislative agenda last spring.

But opponents of reform say the law protects vulnerable construction workers, who in New York are disproportionately undocumented immigrants and non–English speakers, especially at smaller construction companies.

“Workers who speak little or no English and who may be in the country illegally are in no position to complain to their employer, a labor union or to the government about work-site safety lapses,” the New York State Trial Lawyers Association wrote in defense of the law. “If the scaffold law is eviscerated, one of their few remaining protections would be gone.”

In New York, because so much work is done high above the ground, most fatalities on work sites happen on scaffolding, according to the Bureau of Labor Statistics. The trial lawyers maintain that New York needs its scaffold law because it has more scaffolding than most other major cities.

While the reform proposals contained in the new bill would single out smaller companies that demonstrably provided their workers with no safety training, advocates worry that placing the burden of proof on construction workers will lead to a chilling effect on legitimate claims.

That’s “pure, unadulterated nonsense,” said Mike Elmendorf, president of the Associated General Contractors of New York State.

In states like Illinois, a repeal of the law lowered construction companies’ insurance premiums even as construction-related fatalities declined, Elmendorf said. His concern was echoed by Morelle, a Monroe County Democrat and Cuomo ally who is sponsoring the amendment.

“The argument that has been made is that it has made us a safer state, but the statistics don’t prove that,” Morelle said. “New York is one of the safer states when it comes to the construction industry, but it’s not top in the nation. Therefore you can’t point to the one provision that we have in our law as being the reason for it.”

-lnahmias@nycapitolnews.com