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Refusal to Change Scaffold Law this Year

 Cuomo Says No to Scaffold Law Changes this Year:

By Peter Mantius Northern Bureau Chief



New York Gov. Andrew Cuomo said he won’t push for changes in the scaffold law this year, given its second tier ranking on the business community’s legislative agenda and the political clout of the law’s supporters, especially the trial bar.


Speaking to the editorial board of Crain’s New York last week, the governor said the scaffold law was one of the "infuriating" things about doing business in the state, but he said amending it was not a top priority for him because it wasn’t a top priority for business interests.


"Even if you asked businesses writ large [to] prioritize the problems," Cuomo told Crain’s, "they would have started: personal income tax, corporate tax, estate tax, property tax … they would have gone right down the list.


"And I’m going right down the list. Now they would say scaffold, but they would say scaffold what? No. 8? 12?"


But Tom Stebbins, who has led one of the most active anti-scaffold law campaigns in years, said Cuomo was seriously underestimating the business community’s position. He said business owners detest the 128-year-old statute that makes contractors and property owners 100% liable for injuries suffered by workers as a result of a fall.


"He’s throwing in the towel before he even gets in the ring," said Stebbins, executive director of the Lawsuit Reform Alliance.


"This is unquestionably a top priority of business," Stebbins added. "This state is not open for business if he lets the trial lawyers bar the door."


Matthew Guilbault, director of government and industry affairs for the Professional Insurance Agents of New York, said he was perplexed by Cuomo’s statements.


"Admitting the trial lawyers are stronger than the governor? Really? Certainly if the governor of New York really wanted it, it could happen," Guilbault said.


Sections 240 and 241 of the state Labor Law come under attack from business groups every year. This year, as in the past, opponents have backed legislation to split liability if the injured worker contributed to the accident, either by ignoring safety procedures or by being intoxicated.


The Business Council of New York ranked winning such an amendment as one of its top three priorities this year, Ken Pokalsky, vice president of government affairs, told Crain’s.


Stebbins has taken a lead role in rallying support for scaffold law changes this year. He has underscored the costs to businesses and municipalities of holding on to such a strict liability standard. Virtually all other states have since opted for a comparative negligence standard, moderating insurance costs, he argues.


Stebbins said the scaffold law adds hundreds of millions of dollars in extra insurance costs to school construction projects annually. And the insurance costs for the Tappan Zee Bridge repair project will be $200 million more than they would be if the same project were undertaken in a neighboring state, he claims.


Opponents of the scaffold law, particularly Stebbins, have touted a recent academic study from the State University of New York’s Rockefeller Institute of Government. It calculated that the scaffold law leads to 677 additional workplace accidents a year and costs the state’s public and private sectors some $3 billion a year.


In a press release in February, Stebbins said that with the study in hand, "reform advocates look for positive traction in the Legislature this year."


Supporters of the scaffold law, including the Center for Popular Democracy, and the New York Committee for Occupational Safety and Health immediately called the report "junk" and said it was fundamentally biased. And on Monday, the Rockefeller Institute itself backed away from the study, citing its industry funding and its "really big weakness" in analysis, according to a report in the Chronicle of Higher Education.


The institute’s director, Thomas L. Gais, said he doesn’t consider the report an official product of the institute, according to the Chronicle.


Gais denied the report was biased in favor of the Stebbins’ Lawsuit Reform Alliance, but he said it suffered from a "quality-control issue." The lead author, Michael R. Hattery, a relatively new institute researcher, delivered it to the Lawsuit Reform Alliance without thorough review by the institute, the Chronicle reported.


Another major problem, according to Gais, is a section that uses flawed statistical analysis to make "counterintuitive" arguments that the worker-safety law makes workers less safe.


That section of the report was written by R. Richard Geddes, an associate professor of policy analysis and management at Cornell University. Two other labor professors at Cornell have questioned Geddes’ analysis.


Geddes emotionally denounced the criticism in an interview with the Chronicle, saying the work was not biased by its funding source and was based on state-of-the-art analysis.


"I find that offensive … that they said my work is biased, after we spent hours and hours collecting the best data we could find," Geddes told the Chronicle.


The report compares injury rates for workers in New York and Illinois, which repealed a similar law in 1995.


Geddes found that both accident rates and costs declined in Illinois after the Illinois law was changed.


Charlotte Obernauer, executive director of NYCOSH, said the Rockefeller Institute report was part of a misinformation campaign by opponents of the scaffold law.


"The scaffold is safe for now," Obernauer said in the wake of Cuomo’s remarks. "But I think we’re going to be fighting this again next year."


Stebbins said it was his coalition that needed to "expose the lies" of scaffold law supporters.


Guilbault of PIANY said he’s not even sure it’s too late to amend the scaffold law this year, despite Cuomo’s statements to Crain’s.


"I’m not ready to give up yet," Guilbault said. "Things often turn around. The odds are against us, but I’m not ready to give up."

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