Washington Post: Tear down N.Y.’s ‘Scaffold Law’ to rebuild infrastructure, group says. Not so fast, a law clinic replies.

A battle to repeal an obscure New York law protecting construction workers appears to be gaining momentum, with backers saying the 19th-century measure is typical of the reasons it’s so difficult and costly to rebuild the nation’s infrastructure.

But a legal institute at New York Law School says that’s bunk.

Earlier this month, the nonprofit Common Good, a New York-based organization that has pushed to build a major new tunnel under the Hudson River, issued a report calling for repeal of New York’s “Scaffold Law.” The law — which was enacted in 1885 to protect workers building New York City’s skyscrapers — imposes strict liability on builders to ensure the safety of workers, including undocumented immigrants, who are at risk of falling from buildings, bridges and other tall structures under construction.

Common Good’s report characterizes the law as a fossil from the Industrial Revolution that increases a project’s cost. Under its provisions, for example, trial lawyers have been able to argue that even if a construction worker was drunk when an accident occurred, his intoxication should not diminish the builder’s liability. Repeal supporters argue that the law is also redundant, because Workers’ Compensation covers an injured worker’s health expenses and lost wages.

By Common Good’s reckoning, the Scaffold Law forces taxpayers to shell out $785 million in extra insurance costs on major building projects, including about $200 million to replace the Tappan Zee Bridge. The organization says the law would tack on $180 million to $300 million for the proposed Gateway Project’s replacement tunnel carrying Amtrak and other rail traffic under the Hudson River. Habitat for Humanity, which backs repeal, says the law was so onerous that the nonprofit organization had to abandon several recovery projects after Hurricane Sandy because no insurer would write a policy to cover its volunteers.

Other organizations urging repeal say there’s no evidence that the Scaffold Law keeps workers safe. Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York, cites a Cornell University study by Prof R. Richard Geddes and others that concluded that the law reduces worker safety. Stebbins argued that this may occur because, if companies can be held liable for an accident no matter what, they have little incentive to go all out on providing safeguards at the job site. Construction workers also have less incentive to follow safety measures themselves, he said.

Repeal backers say that even though the Scaffold Law affects only builders in New York, it’s typical of other flaws in U.S. law that add unnecessary costs to infrastructure. Rep. John J. Faso (R-N.Y.) has proposed legislation that would effectively nullify the Scaffold Law’s effect on any project that receives funding from the federal government. More than a dozen newspapers have editorializedfor its repeal.

But Joanne Doroshow, executive director of the Center for Justice & Democracyat New York Law School, said this week that the repeal movement has been coasting on misinformation, and that the effort has more to do with builders’ profits than with overhauling the nation’s infrastructure.

“What this law is really about is ensuring the safety of work sites,” Doroshow said. “It’s really important that owners and contractors have exclusive responsibility for ensuring the safety of work sites.”

Other groups warning against repeal of the Scaffold Law include the Center for Public Democracy, which wrote its own report questioning the conclusions of a similar study co-written by Geddes for the Rockefeller Institute.

Doroshow’s clinic, citing U.S. Bureau of Labor Statistics, notes that construction leads all sectors in the number of workplace deaths (although the rate is lower than for agriculture and forestry and other sectors). She said the law also limits a builder’s liability in some ways: An injured worker must show that the employer violated necessary safety standards. The center also says that if the accident was caused solely by the worker’s negligence — such as intoxication — a claim can be defeated.

Repealing the Scaffold Law would open the way to blaming injured workers for their accidents, Doroshow said. She also said Workers’ Compensation offers inadequate protections these days. Years of lobbying by industry groups have led to tightened eligibility and skimpier benefits, a trend documented by the U.S. Labor Department.

Although it’s true that New York may be the only holdout on the Scaffold Law, that may speak more to the rollbacks in Illinois and elsewhere that builders and insurance companies have lobbied for, Doroshow said. She said the New York law not only protects workers on a job site but, by putting a heavy onus on builders to operate safely, helps keep everyone safe, including pedestrians and others near construction sites in New York City.

“I’m very thankful that this law exists because I think it protects everybody who lives here,” she said.

Click here to read the article in The Washington Post.