Friday, May 2, 2008

Things Fall Apart: Workers' Safety

By Lance Steagall

New York, May 1 – A collapsed crane, a failed safety strap, a broken scaffold; we're only four months into 2008 and already 13 construction workers have died on New York City job-sites.

In spite of this string of worker deaths, pro-business groups are lobbying to gut what many deem essential labor protection: Section 240 of the New York State Labor Law. Commonly known as "the Scaffold Law," it requires that employers provide the proper safety equipment, and ensures injured workers the right to sue when that equipment is not provided.

In early April, at the intersection of Livingston and Schermerhorn - a downtown Brooklyn jobsite - worker Miguel Lagos, 32, was taking a smoke break. He wore his hardhat and protective eyeglasses on, still clipped into the harness he uses when he’s eight-stories up.

“If there is a law that can help make less-dangerous workplaces, why would anyone want to take that away?” he asked. Without skipping a beat he answered his own question – “money. It’s gotta be about the money.”

Mike Elmendorf, the New York State Director of the National Federation of Independent Business, lobbies Albany for the repeal of the Scaffold Law, and acknowledges that money is the motivating factor. But “this isn’t about trying to erode protection for workers,” he said. “it’s about fairness. It’s about an antiquated statute that’s been perverted into a cash machine for trial lawyers.”

Elmendorf and like-minded advocates believe that Section 240 holds business owners liable for any accident, regardless of the circumstances. “Under this statute,” said Elmendorf, “you could show up to work drunk, go up on a beam, dance a polka, swan dive into the ground, and it isn’t your fault.”

Paul Fernandes, the Chief of Staff at the Building and Construction Trades Council, said that isn’t the case.

“The Scaffold law simply says the contractor is absolutely responsible for providing a safe workplace,” said Fernandes. “If you remove that responsibility from the contractor, that gives them a crack that allows them to open the door to unsafe job sites. We have a hard enough time getting compliance as it is.”

The case history of Section 240 isn't so black and white.

In 2001, Sergeant v. Murphy Family Trust, Kevin Sergeant won a lawsuit for a work-site accident. As the court overview states, “plaintiff [Sergeant] stepped onto yellow insulation where a roof panel had been removed. The insulation had no underlying support, and plaintiff fell at least 21 feet to the floor below. At the emergency room, a blood test revealed that plaintiff’s blood alcohol level was .27.”

While a .27 blood alcohol level is enough to warrant a DUI arrest, it did not prevent Sergeant from winning his case. Because the proper safety devices were not provided, he was entitled to damages regardless of his intoxication.

A 2003 case, Blake v. Neighborhood Housing Services of New York, offers another perspective; a sober worker, Rupert Blake, was injured while scraping rust from a window. The jury found that all proper safety equipment had been provided in working order, and Blake had only personal negligence to blame. Neighborhood Housing Services was not held liable.

Other case law reinforces these two examples; if the proper safety equipment is provided, negligent workers have no case. If it’s not, all bets are off.

But those working to gut Section 240 are also concerned with inflated insurance prices, perhaps more so than potential lawsuits.

“The Scaffold Law is driving up the cost of liability insurance and in some cases making it impossible to even secure liability coverage [in New York City],” said Elmendorf. “By some estimates, it adds $10,000 to the cost of building a house in upstate New York.”

Ari Gross, of Gross & Co. Insurance, agreed that premiums for liability insurance can be prohibitively expensive.

“I’ve tried to get quotes,” he said, “and the replies were ‘the minimum insurance premium is $50,000’.” That is in contrast to, say, painter’s insurance, which Gross said was, "typically around $3,500."

Although Gross acknowledged that “one claim under the Scaffold Law can be disastrous for an insurance company,” he had no proof that the Scaffold Law was directly responsible for the high costs.

Paul Fernandes of the Building and Construction Trades Council has been contacting insurance providers for years, requesting that proof. He said he has yet to receive any.

“We’ve waited five to seven years for the insurance industry to provide it,” said Fernandes, “and they can’t provide a single shred.”

So far, Albany is staying out of the fight, seemingly content with leaving the law as is.

“They’d be crazy to take away that law,” said Lagos, the Brooklyn construction worker. “This city wants to build and build, and that's fine, but they've got to take care of us [the workers].”

(Click on image for a brief history of Section 240(1) of New York State Labor Law)

(Click play for a supplemental piece on workers' safety in NYC)

Lance Steagall is a student in New York University's Global and Joint Studies Program, with concentrations in Journalism and Latin American Studies. After graduating from Northwestern University in 2005, he moved to Concepcion, Chile, where he worked as an English professor at a private language institute. Since 2004 he has been actively involved in a political website he started with three other Northwestern alumni,

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