Legislative Gazetter - April 21, 2014, by Matthew Dondiego - A new report released last Thursday by a pro-labor, pro-immigrant rights advocacy group criticizes the construction industry for using what they call misleading figures and cherry picking data to lobby against the state's controversial "scaffold law."

The scaffold law is a century-old law in place to protect worker's rights. Under the law, contractors and property owners serving as contractors are responsible for providing a safe work environment for their employees or become liable for any on-site injuries and accidents.

Opponents of the law point out that contractors are fully liable for workers' injuries even if it is determined the worker is at fault. Opponents say it is outdated and causes construction costs to rise due to the increased costs of insurance premiums. Supporters of the law say it provides common sense protection for workers performing a dangerous job and maintain that contractors are not held liable in court if proper safety precautions are in place.

The new report, titled Fatally Flawed and released by the Center for Popular Democracy, which is supported financially by the New York State Trial Lawyers Association and labor unions, is a scathing criticism of a Rockefeller Institute study — which is frequently referenced by the construction industry — that concluded the scaffold law resulted in an additional 667 work site injuries and adds about $3 billion in additional costs to construction projects in New York state each year.

According to last week's report, the oft-cited Rockefeller Institute study is "fundamentally biased" and calls the New York Civil Justice Institute, which paid $82,800 to commission the Rockefeller study, "a poorly-disguised front group" for the construction industry aligned Lawsuit Reform Alliance of New York. According to the report, the Lawsuit Reform Alliance of New York and the New York Civil Justice Institute share the same address, 19 Dove St, Suite 201, Albany, N.Y., and the same telephone and fax numbers.

"This [Rockefeller Institute] study was bought and paid for by the construction industry," Josie Duffy, a staff attorney for the Center for Popular Democracy. "This is a direct result of people who do not like the scaffold law for business reasons, paying for this report to be released."

On the claim that the scaffold law contributed an additional 667 injuries, the report says the Rockefeller Institute "confuses correlation with causation."

This claim, according the Center for Popular Democracy, is based on worker injury rates in "sub-sectors and non-construction industries," such as warehouse work, transportation, roofing, residential building construction, manufacturing, wholesale trade and utilities industries, and are compared to the rest of the nation.

"The authors assert that these differences are greater in New York and attribute these greater differences entirely to the scaffold law," the new report reads. "There is simply no basis to conclude that the scaffold law is the cause of these differences. Indeed, the authors provide no justification for comparing injury rates in construction with injury rates in less hazardous industries, or using those differences as a proxy for the impact of the scaffold law."

Duffy bluntly says that the scaffold law does not cause an increase in workplace accidents. She says the Rockefeller Institute's study, which was released in February, lacks factual evidence that the law makes work sites more dangerous and "that number is coming from nowhere."

"To me, that is the most egregious part of this whole report," Duffy said.

Despite the strong words used in the report and by Duffy, Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York, says that the Rockefeller report "conclusively" found the law made construction sites more dangerous for workers.

He said that absolute liability for contractors creates "perverse incentives" for workers.

"Workers are not incentivized because they are never held responsible and contractors are not incentivized because they are guilty in nearly every circumstance," Stebbins said. "Only by apportioning liability to fault, as is done in every other state and every other part of our civil justice system, can we maintain balance and improve safety."

According to Stebbins, the report released by the Center for Popular Democracy last week is a "political hit piece, with no statistical merit or actual research of any kind. They cannot get researchers to back up their opinions, because the facts do not support the scaffold law."

Stebbins argues that absolute liability causes the insurance markets to treat sites with sterling safety records the same as companies with less stringent safety precautions. Opponents of the scaffold law say that absolute liability holds the company liable for the worker injuries regardless of who is actually found to be at fault.

Duffy however, said that companies are not automatically found to be liable for injuries sustained by workers on construction sites and are typically safe from injury-related costs so long as they had the proper safety precautions in place.

"What absolute liability means is that you have to pay for the costs of the injuries … and that's only going to happen if you're breaking the law," she explained. "What this law says is there has to be some level of protection for workers."

According to Duffy, under the law companies still hold the right to argue their case in court and they are not automatically found responsible for every injury.

"It's important that employers get to have their voices heard in law, I support that this law allows people to get their voices heard on both sides and that's a very, very real protection," she said "Nothing happens automatically in this law and you can't even be taken to court unless your breaking the law in the first place."

The report also criticizes the Rockefeller Institute for failing to take into consideration certain conditions in New York that may affect the injury rates in the state. Such measures include New York generally has more high-level construction works which may drive up injury rates and New York construction workers are more likely to be union workers and therefore are more likely to report injuries. According to the report, Texas has one of the lowest construction injury rates yet is among the highest in construction fatality rates.

According to the report, "Such low-injury-rate states have artificially suppressed the US injury rate, which the paper nonetheless compares to the New York rate."

"This is a law that protects construction workers. Construction workers are doing a really difficult job and they're doing it every day and they are growing our economy," Duffy said. "Construction workers are literally the bread and butter of what makes New York City, New York City … and this is a state of construction."

Assemblyman Francisco Moya, a Democrat from Queens, said the Center for Popular Democracy's report "injected some truth into the politically-charged debate surrounding the scaffold law."

"Many untruths have been lobbed at the scaffold law in an attempt to dismantle it. This report makes clear that those untruths have unfortunately been crafted by parties who have a financial interest in watering down workplace protections," Moya, a staunch supporter of the law, said in an e-mail. "When it comes to life and death decisions about workplace safety, there's no room for politics. It has to be about facts. And the fact is that the Scaffold Law protects workers. That's the real bottom line."

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