Marc Dittenhoefer

The Height of Arrogance

For a hundred years now, since the enactment of Labor Law provisions relating to worker safety at jobsites, New York has been amongst the safest of States for those whose career path, or life circumstance, leads them into the construction trades. As of the last rating – covering statistics compiled more than 2 years ago - the Empire State ranked 2nd Best in construction-worker safety: number one was a State with probably more barns than buildings over three stories. But don't be surprised if NY's quest to be Number One (in a good category, for a change) takes a serious step backward in the next rankings.

Folks have been falling from scaffolds like leaves from trees lately. In 2004, there were five such accidents in New York City, 2 of which were fatal. In 2005, there were 23 construction job-related deaths. In 2006, there have been 11 accidents including four fatalities since August! In all, since 2003, 88 laborers have been killed on the job citywide, the largest number of which is attributable to falls from a height. Those who survive such falls are often catastrophically, life-alteringly injured forever. This has caused such commotion that a City Task Force was hastily created to focus on a plan for to safeguard scaffold workers. According to Mayor Bloomberg: "People that work in this city deserve to have a safe workplace." Good PR, but not at all a new concept.

Added into the mix is an "All-American" demographic fact of life. These new laborer/victims are usually newcomers to our shores: immigrant Poles, Gambians, Mexicans, Dominicans, Ecuadorians, and Eastern Europeans and Latinos of every nature and description, including fellow Americans from Puerto Rico. How is it that this new generation of construction worker is so much more prone to the pitfalls of gravity than those workers of just a few years ago?

They're not, of course. What has changed is developers' shrinking compliance with the Building Safety Codes requiring: scaffolds to be properly shored, safety vests worn, harnesses employed, rigging properly done, machinery properly “Permitted” and operated, workers appropriately instructed in job performance, safety meetings held with records kept, safety devices available AND used: in short, a reasonably safe workplace!

What has stayed the same, especially in places like New York City, has been the increasing value of Real Estate. This has spawned a record building boom and an unprecedented rise in Building Code violations at worksites. A recent State Comptroller's Report clearly indicates that governmental monitoring of worksites is woefully inadequate to monitor increased worksites with a static, and in some cases diminishing, workforce of Inspectors. The results of various random visits to numerous sites recently are instructive. No valid permit for 30% of equipment, 39% of scaffolds and 5% of cranes; 15% of sites where scaffold permits had expired still had scaffolds present, with the scaffolds actually still being used by workers in one-third of those cases! [In a practical sense, “no valid permit” means no insurance in place to cover whatever can go wrong there!]

Developers, taking advantage of the twin opportunities presented by the high profitability in building co-ops, condos and office towers as well as the availability of cheaper than usual immigrant labor, have increasingly failed in their duty to monitor their worksites to ensure compliance with the Labor Law of the State as well as local Building Codes and ordinances. And the various levels of government involved have failed in keeping up with catching them. The result: thousands of low-income families with a breadwinner either dead, injured or disabled, dependant upon whatever public, taxpayer-funded or charitable aid is available to them - the “American Nightmare”.

Of course, when these Labor Laws were passed early last century, the Legislature well knew that government could not be everywhere to monitor everything - nor did it want it to be. Hence, sections of the Labor Law permitted private rights of action - civil lawsuits - on behalf of those injured or killed in violation of the safety laws. In some instances, owners and general contractors are strictly liable to a worker or his/her survivors for certain violations that result in catastrophe.

Thus does the civil justice system provide a discrete counterbalance to state regulation, providing yet another, economic, incentive beside and beyond that which understaffed government can enforce to insure that those who will most control and profit from a construction enterprise will also most supervise it according to law.

So, in light of this situation – the boom in building, violation, injury and death – what is the response most loudly heard in the corridors of Albany from the various elements of the construction industry? From the developers, the architects, the business councils, the property owners, and, yes, even some of the unions? Hold on to your hardhats for this one!

Each year, as the death toll has mounted and the violations record has blossomed out of sight, these fellows have descended upon the Legislature with increasing force and finance to urge upon our representatives wholesale changes in New York’s Labor Law to remove, repeal, restrict, retrench or reduce those Labor Law sections authorizing a private cause of action against offending worksites. While doing next to nil to police the violators in their own midst, their highest concern is to remove the lawsuit from their profit calculations for the future. Spinning yarns of jobs to be lost, drunken workers collecting payouts for life, spiraling insurance costs, and dire economic consequences for us all they becloud every discussion of worker safety with a fog of mis-, dis- and non-information. And they just might be winning!

The best defense is a good offense, so it is said – even in defending the indefensible!

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Posted at 7:16 AM, Nov 21, 2006 in
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