Congressman John Faso, a Republican representing New York’s 19th district, has taken a bold step and introduced legislation aimed at overriding one of his home state’s own laws. Due to the New York legislature’s cozy relationship with certain special interests, namely the personal injury trial bar, this move is necessary and overdue.
The statute in question, known as the “Scaffold Law,” is an archaic construction site liability regulation that places full blame for certain work-site injuries on the property owner – including publicly funded entities like the Metropolitan Transit Authority or the Port Authority of New York and New Jersey – and the general contractor, regardless of the contributing fault of the injured employee. This means that owners and contractors are held liable even if they had nothing to do with the accident.
The consequence of this expansive, so-called “absolute liability” standard, is that construction insurance for the small businesses I represent costs more in New York than anywhere else in the country. No other state has a law like this and its existence drives up the cost of every construction project in the state. Ultimately, every sector suffers and New York is falling behind. It costs more to build affordable housing, maintain roads, build schools, repair bridges or tunnels, and own a small business. The fact is, if a small business owner needs to hire someone to get on a ladder to alter or repair something, they take on an enormous risk.
This is not just a business problem. According to a report put together by the Rockefeller Institute of Government, taxpayers spend an estimated $785 million annually on Scaffold Law related liability costs, and the law has an even greater impact on the private sector that is in excess of $1 billion each year. Data collected from the Port Authority of New York and New Jersey best illustrates the disparity between states due to this law. The agency pays, on average, more than double in losses on the New York side of a cross-border bridge project compared to payouts on the New Jersey side.
First enacted in 1885, the Scaffold Law was meant to protect workers when no other safety regulations existed and New York’s iconic skyline was in its infancy. This was a time before the Occupational Safety and Health Administration and the existence of the workers’ compensation system. Now, over a hundred years later, the Scaffold Law is grievously outdated and does nothing to keep workers safe.
In fact, research conducted at Cornell University and sponsored by the Transportation Research Board of the National Academies concluded that the law significantly increases both fatal and nonfatal construction accident
A recent report from a labor-backed group that supports the Scaffold Law paints a similar picture. Advocates for the New York Committee for Occupational Safety & Health (not to be confused with OSHA) make the baffling argument that increases in construction site fatalities in New York are somehow reason to keep the law intact. That logic fails completely. If the Scaffold Law was effective at promoting worksite safety, shouldn’t New York see a decrease in injuries and boast a top-tier safety record?
Unfortunately, the facts in this situation continue to be ignored. Reforming the law to a standard of negligence similar to that found in all other states is supported by a broad-based coalition of over seventy-five organizations including the New York Farm Bureau, Association for Affordable Housing, Habitat for Humanity, the School Boards Association, the Conference of Mayors, as well as groups representing minority and women owned business enterprises. And, although a few brave legislators, both Republican and Democrat, have introduced measures to bring the law in line with the rest of the civil justice system, legislative leaders refuse to take up reform measures in both legislative chambers year after year.
It is because of Albany’s close ties to the trial lawyer special interest, the only group that benefits from injuries and lawsuits filed under the law, that Congressman Faso had to bring the fight to Washington. Back in 2014, Governor Andrew Cuomo told reporters that the law was among the “infuriating” things about doing business in New York, but changing the law would prove too difficult because “the trial lawyers are the single most powerful political force in Albany.”
That is plainly unacceptable.
The House Judiciary Committee recently approved Faso’s bill, the Infrastructure Expansion Act, and supporters look forward to seeing the bill pass the full House, and introduction in the Senate. It is the responsibility of all elected officials to ensure that worksites are safe and that public funds are spent responsibly. When local lawmakers are paralyzed by influential donors and lobbyists, it is more than appropriate for Congress to step in. New York is lucky to have John Faso representing its best interest, not just the best interest of the trial lawyers.
Mike Durant is the NFIB New York State Director.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.