Campaign News

Times Union - August 10, 2014, by  Casey Seiler - Between its draft and final versions, a report by SUNY's Nelson A. Rockefeller Institute of Government on New York's controversial Scaffold Law incorporated changes that tended to increase its estimates of the law's cost and impact.

Some of the changes echoed suggestions made to researchers by the leader of an anti-Scaffold Law organization that paid $82,000 to fund the report — sponsorship that has led critics to attack the study as advocacy in the guise of research. Its authors, however, insist the changes reflect nothing more than their own good-faith efforts to clarify the analysis.

The Scaffold Law, which places "absolute liability" on employers for gravity-related workplace injuries, is supported by labor unions but opposed by business groups that claim it needlessly drives up construction costs. Opponents would like to see New York follow other states by adopting a "comparative negligence" standard that would make workers proportionately responsible when their actions contribute to an accident.

The Rockefeller Institute report was funded by the Lawsuit Reform Alliance, a leading opponent of the law, through its research arm, the New York Civil Justice Institute. The study, made public in February, drew initial controversy for a statistical analysis that concluded construction injuries in Illinois dropped after the state repealed its version of the Scaffold Law in 1995. That finding was highlighted by the law's opponents, and harshly criticized by labor groups such as the Center for Popular Democracy.

The director of the Albany-based Rockefeller Institute, Thomas Gais, subsequently backed away from that chapter, citing what he described as flaws in the Illinois analysis — conducted by a Cornell University researcher — and the fact that the report was released to its funders before a final round of vetting had taken place.

After that dispute came to light in April, advocates on both sides filed Freedom of Information Law requests to find out if pressure had been placed on the institute, either during its research or after the report's release.

Documents produced by the Rockefeller Institute in response to the Center for Popular Democracy's FOIL included email correspondence between researchers and Tom Stebbins, the leader of the Lawsuit Reform Alliance. The exchanges, described last month by the Times Union, included a July 2013 email containing two pages of Stebbins' suggested edits offered in response to a draft version of the report. While many of his suggested changes were merely typographical, others went to the substance of the report.

The institute initially refused to release the draft report, but produced it last week on the advice of SUNY's FOIL officer. Side-by-side comparisons of the two reports show that in several instances changes were made that addressed issues raised by Stebbins.

The contract between the institute and the LRA required the researchers to communicate regularly with their funders as the report progressed. In an interview last week, Stebbins said his suggestions were nothing more than an effort "to get the complete picture" of the costs of Scaffold Law.

The second section of the report, prepared by lead researcher Michael Hattery, attempted to assess the public sector costs and impacts imposed by Scaffold Law, including the annual average price of Scaffold Law-related injury awards for public projects. In the draft, researchers found that sum by taking total spending on state and local capital projects (not including public authorities) and applying the average percentage that the Metropolitan Transportation Authority reported spending for labor law injury award costs. (Because the MTA uses what's essentially an in-house insurance entity, it offered the researchers rich data on insurance costs, claim awards and construction value.)

In the draft version of the report, the formula estimates the cost of gravity-related claims costs by using half of the MTA's fraction (0.3 percent of total construction value) to estimate awards in urban areas and a quarter of the MTA average (0.15 percent) for non-urban awards. Using those multipliers, the average cost added up to $28.3 million for 2007-2011.

"Why do you use half of the MTA average .3%," Stebbins asked the researchers in his notes on the draft. He added that it seemed "very inconsistent" with the industry's estimate that Scaffold Law adds at least 4 percent to the cost of any public construction project.

"How can we reconcile?" he wrote.

Stebbins also pointed the authors to data available from the New York City School Construction Authority, which has in recent years buckled under escalating insurance costs for its projects.

The $28.3 million figure, he wrote, "does not include additional insurance costs, which is likely the driver of the 4% estimate. Any thoughts on getting to that number? ... Perhaps we could have an MTA estimate for payouts and an SCA estimate for insurance. That may help reconcile the two figures."

The final report uses calculations that doubled the potential claims costs.

A corrected version of the draft's calculation ($30.2 million) is offered as a "lower bound" for average annual injury awards, but the report provides a new "upper bound" of $60.5 million obtained by employing the full MTA average (0.6 percent) for urban projects and half of that fraction (0.3 percent) for non-urban work.

In a response to the Times Union's emailed questions last week, Hattery said that the injury award cost figure was always intended as "a very rough estimate" due to a lack of specific data.

"After reflection — after the first draft — we chose to use a range rather than a single point estimate," he said. "This is often done so that users and readers of the report do not overvalue the 'precision' of a single number when it is based on a significant set of assumptions."

The same chapter of the draft includes a two-page case study on the construction of the Lake Champlain Bridge, in which those interviewed — including the chief engineers on the New York and Vermont sides of the project, Vermont's attorney general, and the contractor's project engineer and risk control manager — said Scaffold Law had only marginal impact on the structure's price tag.

In his edits, Stebbins recommended scrapping the case study: "As discussed, suggest we remove this section unless we can get someone to talk."

"I felt that no one they interviewed knew what Scaffold Law was and how it affected the cost of construction," Stebbins said last week. " ... We were not able to get people who understood what the costs were."

The final report jettisoned the Champlain Bridge analysis.

Hattery said the case study was dropped because it failed to provide a contrast between insurance costs in the two states. Because New York was the principle partner in the bridge project, he said, "there was no contrast to compare in the execution of the project ... nor were there any fall-from-height claims to review and describe, to our knowledge."

In its place, a new case study was added that examined Scaffold Law's impacts on the School Construction Authority, and described the $1.1 million settlement of an accident claim that ended up costing half of the construction value of the project where the injury occurred.

Hattery said the SCA analysis was included because of the researchers' desire to offer "at least one specific Scaffold case in a higher-density urban environment. ... The case was completed later, in part, because it required a longer time frame for access to personnel, data, etc."

Stebbins said it would have been irresponsible for researchers to not have addressed the SCA in the analysis.

The final report was the centerpiece of February's annual Scaffold Law reform lobby day at the Capitol. The Lawsuit Reform Alliance touted its release with a news statement: "With the study in hand," it concluded, "Scaffold Law reform advocates look for positive traction in the legislature this year."

Instead, the session ended with no action taken on Scaffold Law.

Josie Duffy of the Center for Popular Democracy called on the Rockefeller Institute to release all the drafts of the disputed report.

"The public deserves a full accounting of SUNY's role in helping business groups attack worker safety laws," she said.

Source.

Alyssa Milano and Ady Barkan attend the Los Angeles Supports a Dream Act Now! protest on Wednesday.

See the picture here.

Chicago spends 39 percent of its municipal budget on policing, while New York spends just eight percent and Los Angeles spends 26 percent, says the Center for Popular Democracy. This means the city has less funds for things like schools and social services.

Read the full article here.

The New York Times - August 10, 2013, by Steven Greenhouse - Like most construction workers who come to see Patricia Zavala, the two dozen men who crowded into her office in Austin, Tex., one afternoon in March had a complaint.

The workers, most of them Honduran immigrants, had jobs applying stucco to the exterior of a 17-story luxury student residence. It was difficult, dangerous work, but that was to be expected. What upset them was that for the previous two weeks their crew leader had not paid them; each was owed about $1,000.

Ms. Zavala, the workplace justice coordinator at the Workers Defense Project, listened to their stories and then spent a month failing to persuade the contractors to pay the back wages. So Ms. Zavala, 27, a graduate of the University of California, Santa Barbara, and the daughter of a Peruvian immigrant, turned to what she calls the nuclear option: the workers filed a lien on the building site. That legal maneuver snarls any effort to make transactions on the property and sometimes causes banks and investors to freeze financing.

The lien, along with a threatened protest march, quickly got the attention of the dormitory’s developer, American Campus Communities, and the general contractor, Harvey-Cleary Builders. Within hours, Harvey-Cleary arranged a meeting between the stucco contractor and the unpaid workers, and, presto, Harvey-Cleary and the contractor, Pillar Construction, agreed to pay the $24,767 owed to the workers.

“Liens are the very best tool workers have,” said Cristina Tzintzún, executive director of the Workers Defense Project. Instead of dealing with subcontractors, she said, “you’re negotiating with the project owner and general contractor. They can no longer shift responsibility and say: ‘I paid the guy downriver. It’s out of my hands.’ ”

The Workers Defense Project, founded in 2002, has emerged as one of the nation’s most creative organizations for immigrant workers. Its focus is the Texas construction industry, which employs more than 600,000 workers, about half of whom, several studies suggest, are unauthorized immigrants.

Immigrant workers, especially those who are undocumented, are especially vulnerable to abuse by contractors. Each year, the Workers Defense Project, which has 2,000 dues-paying members, receives about 500 complaints from workers who say they were cheated out of overtime or denied a water break in Texas’ scorching summer heat or stuck with huge hospital bills for an on-the-job injury.

The Workers Defense Project is one of 225 worker centers nationwide aiding many of the country’s 22 million immigrant workers. The centers have sprouted up largely because labor unions have not organized in many fields where immigrants have gravitated, like restaurants, landscaping and driving taxis. And there is another reason: many immigrants feel that unions are hostile to them. Some union members say that immigrants, who are often willing to work for lower wages, are stealing their jobs.

“The Workers Defense Project is not like a union — it welcomes everyone,” said Luis Rodriguez, a Mexican immigrant who sought the group’s help after he lost a finger in a construction accident. “It is always willing to take in more people and help more people.”

At a recent Workers Defense Project meeting — they are held every Tuesday night — the atmosphere was part pep rally, part educational session, part social hour. After a dinner of tacos, rice and beans, about 60 workers plotted strategy for a demonstration against the developer of a 1,000-room Marriott hotel. A skit mocking the developer drew raucous laughter. The energy and sense of solidarity were reminiscent of what America’s labor unions had many decades ago, before they started to stumble and stagnate.

Worker centers, which are among the most vigorous champions of overhauling immigration laws, coalesce around issues or industries. For example, there is Domestic Workers United, which persuaded New York and Hawaii to enact a bill of rights for housekeepers and nannies, and the Coalition of Immokalee Workers, which has gotten most Florida tomato growers to adopt a workers’ code of conduct and to increase pay by at least 20 percent. Young Workers United played an important role in persuading the San Francisco City Council to enact a paid-sick-days law and a minimum wage of $10.55 an hour. With labor unions losing members and influence, these centers are increasingly seen as an important alternative form of workplace advocacy, although no one expects them to be nearly as effective as unions in winning raises, pensions or paid vacations.

“Worker centers are filling a void by reaching out to a work force that is particularly hard to reach out to,” said Victor Narro, a specialist on immigrant workers at the University of California, Los Angeles.

Jefferson Cowie, a labor historian at Cornell, said: “Worker centers are part of the broad scramble of how to improve things for workers outside the traditional union/collective bargaining context. They’ve become little laboratories of experimentation.”

Cristina Tzintzún, the executive director of the Workers Defense Project, says of its Texas efforts, “Things can only go up because working conditions are so awful.”

As worker centers go, the Workers Defense Project in Austin has racked up an unusual number of successes. It has won more than $1 million in back pay over the last decade on behalf of workers alleging violations of minimum wage and overtime laws. A report it wrote on safety problems spurred the Occupational Safety and Health Administration to investigate 900 construction sites in Texas — leading to nearly $2 million in fines.

And, despite a liberal image, the group made common cause with law-abiding contractors to persuade the state’s Republican-dominated legislature to approve a law that made wage theft — an employer’s deliberate failure to pay wages due — a criminal offense. The Workers Defense Project has just 18 employees, and its executive director, Ms. Tzintzún, 31, earns just $43,000 a year. But it managed to bring mighty Apple to the negotiating table. The group extracted a promise that construction workers on Apple’s new Austin office complex would receive at least $12 an hour, not the more commonly paid $10 — as well as workers’ compensation coverage.

The workers’ compensation pledge was an important victory. The construction industry in Texas has a higher fatality rate than that in most other states, but Texas is the only one that does not require building contractors to provide workers’ compensation to cover an injured worker’s hospital bills and disability benefits.

“We like organizing here in Texas,” Ms. Tzintzún said. “Things can only go up because working conditions are so awful.”

AS soon as word got out in March 2012 that Apple was planning to build a $300 million operations center in Austin, the Workers Defense Project sprang into action. Gregorio Casar, the group’s business liaison — his title might more fittingly be thorn-in-the-side — learned that Apple hoped to receive tax incentives in exchange for promising to create 3,600 full-time jobs with salaries averaging at least $63,000.

But Mr. Casar, a University of Virginia graduate who is the son of Mexican immigrants, assumed that Apple’s construction contractors would pay much less than that. The typical wage for nonunion construction laborers in Texas is just $10 an hour — about $20,000 a year.

Relying on relationships that the Workers Defense Project had built over the years, Mr. Casar, 24, persuaded the Austin City Council to require Apple to hold talks with the group as a condition for $8.6 million in city tax incentives. (The group had previously persuaded the council to enact Texas’ first ordinance requiring rest and water breaks for construction workers.)

In these discussions, Mr. Casar demanded that Apple’s construction contractors pay at least $12 an hour, provide safety training and workers’ compensation, and allow the group’s representatives to go to the site to inspect working conditions.

“Like many companies, Apple resisted at first because they wanted total flexibility,” Mr. Casar said.

So the group turned up the heat. On March 22, just before the council’s hearing on Apple’s tax incentives, 100 protesters demonstrated outside City Hall. Inside the council chambers, Jose Nieto, a demolition worker affiliated with the Workers Defense Project, testified about how he had once nearly bled to death when a large mirror he was removing from a hotel wall broke and sliced into his arm. His hospital bill, which included multiple operations, was more than $80,000. He had no workers’ compensation to pay for the operations or support his family.

Mr. Nieto implored the council not to grant Apple the tax incentives unless it accepted the Workers Defense Project’s demands. “It is in your power to prevent things like this from happening to other people,” he told the council.

Several weeks of negotiations ensued. Apple — then under criticism for conditions at the Foxconn plants in China that build its products — agreed to almost all of the group’s demands.

“Apple is a strong supporter of workers’ rights around the world,” Steve Dowling, an Apple spokesman, said recently. “We’ve had a productive dialogue with the Workers Defense Project since we first heard from them last year. We shared many of the group’s goals.”

Ms. Tzintzún has an explanation for these victories. “We make it very hard for people to oppose us publicly,” she said. “We know what we’re asking for is the bare minimum, and we remind everybody of that.”

In taking on one of the world’s most successful companies, the Workers Defense Project showed how far it has come. Six years ago, it had just two employees: Ms. Tzintzún, then a senior at the University of Texas, and Emily Timm, now the group’s policy director, who had just graduated from Brown University and was working part time at a homeless shelter where many low-paid immigrant construction workers passed through.

The group limped along with insecure financing until 2009. That year, three immigrant workers plunged 11 floors when their scaffold collapsed in Austin; all three died. A week later, the Workers Defense Project released a 68-page report on worker safety.

The report had been a year in the making. Prepared with the help of University of Texas researchers, it found that two-thirds of 312 construction workers surveyed had not received basic health and safety training and that three-fourths had no health insurance. Most shocking, it calculated that one construction worker died in Texas every two-and-a-half days from work-related injuries.

To draw attention to the report — and to provide a television-friendly shot — Ms. Tzintzún and Ms. Timm held a news conference in front of 142 pairs of empty work boots. That was the number of construction workers who died in Texas in 2007. The report received media attention across Texas and turned the group overnight into an influential voice in a state where labor unions are weak.

The group’s higher profile has also meant more criticism. Stan Marek, chairman of a construction company based in Houston, called the group “a junkyard dog.” “They keep coming at you,” he said.

Scott Haeglin, project manager for Harvey-Cleary, voiced some annoyance with the group for filing the nettlesome lien and holding a protest march despite the settlement. “We take pride in treating our workers well and resolving these matters,” he said.

Phil Thoden, president of the Austin chapter of the Associated General Contractors of America, said: “They have a tendency to paint the entire industry in a negative light. It’s frustrating that when there’s an incident on a job site, they help give it tremendous media coverage and it leaves the public with the impression that contractors are doing nothing to protect their workers.”

Industry lobbyists have blocked many of the group’s initiatives in the State Capitol. A proposal to stop the common practice of classifying workers as independent contractors — allowing construction contractors to avoid providing benefits or paying overtime — died in committee. So did a proposal to require workers’ compensation in construction.

Some business-backed groups have begun a new attack on worker centers in recent weeks, calling them union-front groups set up to circumvent legal requirements that unions face, like strict financial disclosure.

Not all businesses object to the centers. The Workers Defense Project has made allies of many who dislike being undercut by what they call “low-road contractors” — for instance, those that do not provide workers’ compensation.

“It makes no sense — in Texas I’m required to have insurance on the cargo I haul up a construction elevator, but not on the workers in that elevator,” said Andy Anderson, owner of Linden Steel, which provides steel and labor to building projects.

Impressed by the Workers Defense Project’s success in helping immigrant workers and highlighting job safety, the Ford Foundation and others have showered it with grants. As a result, the project’s budget has swelled to $1 million — four times what it was just four years ago. The money has helped finance building site inspectors and safety and computer classes.

Many worker centers rely heavily on grants. “We’re flavor of the month right now,” Ms. Tzintzún said. “I worry what happens to our funding when we’re not.”

Henry Allen, the recently retired executive director of the Discount Foundation, one of the group’s first benefactors, voiced confidence in its future. “They’re a real model,” he said. “If there’s a future for organizing for worker justice, I think it’s the Workers Defense Project.”

LUIS RODRIGUEZ, 42, a short and stocky man with a thick mustache and a deep, bass voice, came to the Workers Defense Project early last year. A heavy industrial drill had torn off his right index finger as he dislodged it from a wall. Doctors could not reattach the finger, and after 20 years of construction work, Mr. Rodriguez was suddenly too disabled to work.

That contractor provided workers’ comp, but the checks did not arrive — and when he went to the state workers’ comp office, he ran into one obstacle after another. “A lady working there whispered to me, ‘You should go to the Workers Defense Project,’ ” he said.

The project helped him get his checks, and it provided him with a cause: worker empowerment. “I was really lost when I went to them,” he said. “I was one of those people who didn’t know anything. But now I know my rights. Now I won’t let some jerk step on me.”

Educating immigrant workers and turning them into activists and leaders is central to the project’s mission. Immigrants make up half of its board, and Mr. Rodriguez is on its Construction Workers Committee. “No union can substitute for what the Workers Defense Project does,” he said. “A union is a more closed group.”

Unions often help workers win better wages and safer workplaces, but unionizing is especially hard in right-to-work states like Texas. The large number of unauthorized immigrants makes it even harder, because many of them fear that outright union support could lead to deportation. (The Workers Defense Project does not ask whether workers who come to it are in the United States legally.)

In the project’s early days, unions often viewed it as an antagonist, a supporter of immigrants who stole jobs from Americans. But unions now often work and march alongside the Workers Defense Project. The change dates from its influential 2009 report about the dangers of construction work in Texas.

“If you had asked me a few years ago, would we be working with a group of nonunion workers to help them better their lives, we’d ask, why would we help people that are taking our jobs?” said Michael Cunningham, executive director of the Texas Building and Construction Trades Council. “Well, the fact is they already have our jobs.

“By working together,” he continued, “we’re trying to drive out low-road contractors that are driving down wages.”

As organized labor strains to reverse its membership decline, unions have established an uneasy alliance with many worker centers, hoping that they might someday help bring immigrant workers into established unions.

“There’s a need to experiment with new ways to reach workers who haven’t been reached by unions,” said Anna Fink, a liaison between the A.F.L.-C.I.O. and foundations that help finance worker centers. “The labor movement doesn’t have the deep trust that worker centers have built with immigrant worker communities.”

Worker centers have done much to discourage wage theft and have marginally increased the pay of some workers. But they do not begin to have the power that unions once had to vault workers into a middle-class life.

Mr. Rodriguez may feel empowered, but he is also poor. After losing his finger, he could not work for seven months. His family of five lost its apartment and moved into a trailer. His son who is now 20 quit high school to help support the family, and to his great shame, Mr. Rodriguez had to cancel his daughter’s quinceañera celebration.

When he returned to work, he found a job framing walls and staircases that paid $11 an hour, $440 a week. That, he said, was not enough, considering that his rent is $850 a month, not to mention costs for electricity, telephone, gasoline, car and food. Some months he makes ends meet only because of that 20-year-old son, who earns money as a disc jockey. A few weeks ago, Mr. Rodriguez found a job paying $14 an hour. He hopes it lasts.

“Eleven dollars an hour isn’t really enough,” he said. “It’s difficult to survive on that.”

But he is grateful to have survived. Many construction workers do not, a truth brought home in 2011, when the Workers Defense Project organized a haunting procession to the State Capitol with 138 mock coffins, commemorating all the Texas construction workers who died in job-related incidents in 2009.

Now, each year, the group commemorates a Day of the Fallen. The workers at the defense project come together around tragedy and hurt, but with a larger purpose, “Now,” Mr. Rodriguez said, “I tell other workers how to stand up for their rights.”

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