Countering the Scaffold Law Rhetoric
Claim: Reforming the Scaffold Law would be unfair to workers, who would have no recourse in court.
Response: Reform would not limit any worker’s right to sue, nor would it shield negligent contractors from liability.
- Under the reform, liability is proportional to fault. Therefore, if a contractor created dangerous work conditions that caused an injury, they would still be held fully liable.
- Reforming the Scaffold Law would improve safety, benefitting all workers.
Claim: New York is not the only state with a Scaffold Law- other states have similar laws
Response: New York is the ONLY state in the nation which imposes absolute liability on contractors and property owners for construction accidents.
- Other states have laws that apply to scaffolds, but no other state or country imposes absolute liability for construction accidents. Researchers at Cornell, the University at Albany, and Albany Law School have reviewed other statutes and found zero that impose absolute liability.
Claim: The Scaffold Law is necessary to protect workers!
Response: The Scaffold Law actually makes workers less safe.
- According to a 2014 study by Cornell University, the Scaffold Law is responsible for 677 workplace injuries each year.
- Albany Law Study: “There is no empirical research which establishes, or even suggests, that New York’s safety record is attributable to these Labor Law sections [240/241].
- Former New York Chief Judge Brietel: “It is therefore no longer true, if it ever was, that making the owner or general contractor inescapably liable provides an added incentive for safety standards on building projects.” Kelly v. Diesel Construction Division of Carl A. Morse, Inc. (1974).
- There is absolutely no empirical evidence that the Scaffold Law makes work sites safer.
Claim: There’s no insurance crisis. The insurers are making huge profits and gouging contractors!
Response: The crisis is very real.
- There are only a handful of major carriers writing general liability policies in New York. In states like IL, CA, and TX, that number is closer to 40.
- If insurers are making huge profits, why are they leaving the market? Why aren’t companies clamoring for a piece of New York’s multi-billion dollar construction market?
- In 2013, the NYC School Construction Authority was nearly unable to get insurance for its multi-billion dollar capital program, receiving only one bid– for $140M higher than the previous year and nearly five times what it would be in New Jersey.
Claim: But if the insurers are losing money, why won’t they show us their books and prove it?
Response: Claims data is available and has been provided to lawmakers.
- The Insurance Services Office maintains aggregate information on historical and projected loss costs, which insurers use to set premiums. This data shows that construction insurance losses in New York are between 3-10 times higher than anywhere else in the country, which is directly attributable to the Scaffold Law.
- Statistical analysis of those costs shows that the Scaffold Law is the driver of the higher costs. When controlling for projects in New York and projects with higher exposure to the Scaffold Law, the Scaffold Law is a much more significant cost driver.
Claim: The Scaffold Law hasn’t held back job growth, and reforming the Scaffold Law won’t create any jobs.
Response: Lower costs mean more construction and more jobs.
- Reforming the law would lower the cost of insurance, allowing companies to bid more jobs and hire more workers.
- Each additional $18 invested in nonresidential construction creates an additional 28,000 jobs.
- Rising insurance costs are threatening the NY School Construction Authority’s M/WBE Mentor program and other similar programs across the state.
Claim: The Scaffold Law only affects small, irresponsible contractors.
Response: The Scaffold Law’s greatest impact is on conscientious, responsible contractors.
- The current absolute liability standard treats a contractor who is only 1% at fault for an accident the same as one that was 100% at fault. Under the Scaffold Law, the safest contractor is treated the same as a contractor with a poor safety record.
- Irresponsible and chronically unsafe contractors often operate with little insurance coverage or none at all, making them unattractive targets for plaintiffs’ lawyers. All contractors are punished for the actions of a small number of bad actors.
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