CONSTRUCTION and SCAFFOLD LAW

Our last blog dealt with the recovered construction jobs. We pointed out that the construction industry has not met its potential as a result of a shortage of construction workers. Now that construction workers are back to work, once again, like every year, construction company owners are attempting to have New York State’s 130 year old scaffold law amended and take construction worker’s protections away.
The law which is Sections 200, 240 & 241(b) of the Labor Law dates back to 1885 and was original called “an act for the protection of life & limb” places work injury liability on property owners and contracting firms who are in charge of the work place which includes painting, cleaning, demolishing or erecting a building. In order to make the construction work place safer, the New York Legislators chose to make those in charge of the construction site and owners of the construction site comply with safety rules and regulations. Contractors complain that these laws inflate insurance costs for construction projects and makes workers less responsible for safety which is absolutely fictitious. The rules and regulations make construction workers safer not less responsible. If the worker follows the law and no violation of the Labor Law exists, they are much less likely to be injured.
According to an article in The Westchester County Business Journal on July 13, 2015 by Coleen Wilson, proponent of reforming the law, argues more safety burden should be put on workers with a comparative negligence clause. Section 240 of the Labor Law deals with scaffolds which makes the contractor and property owner absolutely liable to workers who get hurt on or fall off of scaffolds. A proposed amendment to the scaffold law would allow a jury to allocate a percentage of fault to each party that shares responsibility for the injury including the injured party. Contractors would like the public to believe by making them less responsible for a safe place to work will bring down insurance costs. So instead of questioning the insurance company’s rates, they want to make the work place less safe for workers. This line of false thinking is propounded every year by Matthew Pepe, Executive Director of the Building Contractors Association of Westchester Mid-Hudson Region, Inc. A labor attorney, Geoffrey Pope, who represents mostly union contractors said “not all construction site injuries are subject to the scaffold laws. It’s essentially falling materials or falling workers where the employer has failed to provide proper protective equipment”. Matthew Pepe would have the worker penalized for getting hurt rather than the contractor who failed to provide safety measures.
The article points out the people of these reform efforts by The Building Contractors Association was reached during the 2013 legislative session but rebuffed by the then speaker of the Assembly, Sheldon Silver who stated “changes to the scaffold law are not being considered. We don’t think it’s the right policy to further burden injured workers”. As usual, the construction industry blames the New York State Trial Lawyers Association as the biggest impediment to reforming the scaffold laws. The New York State Trial Lawyers Association stated “legislators of both parties in both Assembly & State 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 years to come”.
It is the trial lawyers who see workers devastated by injuries from collapsing scaffolds or falls as a result of employer safety equipment. Our firm, after 7 years of litigation, settled a scaffold case where the construction worker was provided with a safety harness but had no place to tie off to at the construction site. As he was lifting corrugated steel roofing with two other workers (none of whom were tied off to the steel beams), the wind took the corrugated steel and pushed our client off the second story roof because he had no place to tie off and he landed on the frozen ground sustaining a fractured skull and traumatic brain injury. He can never go back to work and was relegated to a worker’s compensation salary until we settled his case. His medical bills and worker’s compensation lien was $1.8 million which on settlement, was reduced to $400,000.00. Where there is a violation of safety measures that lead to the worker’s devastating injuries, why shouldn’t the contractor and employer be absolutely liable for the worker’s injuries? However, the construction industry complains the cost of insurance for construction jobs is outrageously high because there are not many companies in the market that want to insure construction job. Instead of question the insurance company’s rates, they claim insurance rates will come down if you put the burden on the injured worker. Defenders of the scaffold law have pushed for legislation that would make construction insurance more transparent by requiring insurers to provide information about scaffold laws related claims to prove it is not the safety laws that push up insurance rates. It is the failure to provide the safety measures that cause devastating injuries to workers that push up the rates.
The construction industry and its insurance companies would continue to push for a change in the scaffold laws which will make the construction companies and their insurance companies more profitable at the construction worker’s expenses.
If you have been injured in a construction accident, contact the Law Office of Dominick J. Robustelli & Associates at (914) 288-0800 or email us at djrobolaw@aol.com.