A New York Construction Accident Lawyer Who Represents Injured Workers Tracking Developments in Construction Accident Law.

An April 4, 2012 Reuters article, “Advocates Call For Scaffolding Law Reform,” focuses on efforts by business groups to repeal parts of New York Labor Law 240(1), which has existed for 130 years and provides important protections for injured construction workers.

The momentum behind this effort, led by State Senator Gallivan who has sponsored a bill in the Senate, is considerable.

Yours truly, Eric Dinnocenzo, author of the New York Construction Accident Lawyer Blog, was quoted as opposing the bill.

This is the wrong bill at the wrong time. When Wall Street has caused tremendous harm to the economy and working people, the New York legislature should not be enacting bills that limit workers’ rights in favor of large financial and insurance companies.

The Scaffold Law imposes strict liability on owners and general contractors where construction workers suffer a gravity-related accident that is caused by the lack of proper safety devices. The law requires that for work on a “building or structure” appropriate equipment–including scaffolding, hoists, and ladders–is provided to prevent a gravity-related accident.

Common accidents covered under the law are when a scaffold or ladder malfunctions, causing a worker to fall at a job site, or when an object is inadequately carried or suspended at a height and falls on a worker. Strict liability is only imposed where the lack of a proper safety device causes a construction accident.

The effort to repeal parts of the law is part of a sustained effort by the business and insurance lobbies. Make no mistake about it, this is an anti-worker bill at its heart. Because prior efforts at full repeal have failed, it is reasonable to believe that this particular bill is a first step to gradually over time do away with the Scaffold law entirely.

The bill seeks to replace the strict liability standard with comparative negligence where the worker: 1) fails to use available safety devices; 2) fails to comply with instructions regarding the use of safety devices; 3) fails to comply with safe work practices in accordance with safety training programs provided by the employer; 4) commits a criminal act; or 5) uses drugs or alcohol.

Why oppose this bill? Here are several reasons:

1. Legislation is not needed to address instances where workers commit criminal acts or are intoxicated at the work place. The bill implies that this is a problem, which it is not. Most construction workers are hard-working, decent people. As such, it is an anti-worker bill that targets them and links them with amoral or illegal conduct without justification.

2. Owners and general contractors set the tone for workplace safety. In other words, safety at the job site comes from the “top-down.”There needs to be a law in effect that places the responsibility for safety on them, or otherwise it will encourage work environments where they pass the buck when it comes to safety.

3.  Under Labor Law 240(1), workers still must prove that the accident was caused by a lack of proper safety devices. If there are proper devices, and the worker is solely responsible for the accident, there will be no recovery. The scope of 240(1) is therefore proper.

4.  The case law already prevents recovery where a worker refuses to use available safety devices.

5. Making employer safety training and instructions a factor in determining liability would be a big mistake. As it stands, owners and construction companies often improperly sway and discourage testimony in construction accident cases. Workers-many of whom are undocumented-are often nervous to come forward and tell the truth. Making this change to the law will take the focus off whether proper safety devices and allow evidence of safety programs and instructions that may never have existed.

6.  Workers compensation provides insufficient benefits (approx. $400 per week) for construction workers rendered seriously injured or permanently disabled from accidents that could have been prevented with proper safety devices.

I ask you to contact your state Assemblyman and Senator to urge them not to support the Scaffold bill.

In this day and age, where the rights of workers and teachers are under constant assault – Wisconsin being a prime example – and financial institutions have caused so much harm to the economy — the focus of this bill is completely misplaced.  In short, it is absolutely inappropriate to pass a bill that will harm vulnerable, injured workers to benefit insurance companies.

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