March 8th, 2019

Labor and Immigrants and Injuries, Oh My!

This piece is about the importance of New York’s Labor Law for people who work at heights, but it starts in faraway Boston. It starts there because the story from the Boston Globe is shocking, and it should wake folks up to what goes on behind the scenes.

The basic story is simple enough: Jose Martin Paz Flores had a job taping drywall for Tara Construction. He fell off a ladder and broke his femur in March 2017. The injury required immediate surgery.

“But Paz — a father of five — could not get compensation for that injury because the company’s workers’ compensation insurance policy had lapsed.”

What to do? The owner of Tara Construction, Pedro Pirez, decided to make the problem go away. Because the worker he hired — that father of five –was undocumented.

So he called a relative of his. Who was a detective on the Boston Police Department. Who gave the issue to a sergeant. Who is on the joint ICE/Boston Police task force. Who called ICE.

Then the wonderful Mr. Pirez — who his lawyer says is really “a nice guy” — called in his injured worker to give him $500 to help him along. At which time he was arrested by ICE. In front of his screaming 2-year-old child.

And that’s how Mr. Nice Guy tried to make his little insurance problem go away.

Each year in Albany there are people who want to weaken our Labor Laws, which provide for absolute liability in favor of workers who are injured on the job site when they’re working at heights, if a safety regulation is violated.

And each year there are construction and real estate concerns screaming that the liability should be shared if the worker was comparatively negligent.

The problem with that argument, as exquisitely laid bare in the Globe story, is that workers don’t exactly control the workplace. There are a million ways a boss can retaliate against someone — not just against the injured worker but against a witness to an accident that might be helpful for the injured worker.

Does one guy really want to suffer at the job site to support his injured co-worker when his primary obligation is support his family and pay the rent?

While the Globe story goes on to cover different aspects of the complaint eventually made by the Department of Labor, and retaliation and OSHA, the underlying story of the vulnerable situation of workers is what interests me.

Oft times, these folks are at the complete mercy of their “nice guy” employers.

And so, if you happen to be a legislator that’s reading this little corner of cyberspace, when the contraction lobbyists come a calling to weaken our safety laws, I hope you’ll remember the powerless position of so many people that risk their lives to put up the buildings that we work and live in.

January 29th, 2018

GOP Pissing on States Rights Again? (H.R. 3808, aka the #FederalPowerGrabAct)

It’s remarkable, really, to see the same act play out over and over again. Certain members (not all) of the Republican Party bellow, bawl and otherwise howl that the federal government should be limited. OK, I get it.

Except, however, when they decide otherwise. “Meh, who needs it? We’ll flip-flop today and just flippity-flop right back again tomorrow.” So say certain Republicans.

I’m spurred to write because some members of the GOP — the federal flavor — are in an all-out assault on a 130-year-old New York law that protects New York construction workers in the State of New York. The issue is our Scaffold Safety Law (Labor Law 240) which is very much a state issue.

You may agree with New York’s public policy or disagree. No matter. States are the laboratories of democracy. This is our rationale:

The Scaffold Safety Law protects workers at heights. If the construction company fails to provide required safety devices and the worker is hurt or killed, the company is liable.

The law dates to 1885 and has been a boon to the health and lives of New York’s bluest of blue collar workers who have worked at dizzying heights in the most dangerous of conditions. I first wrote about this 10 years ago: New York Labor Law Protects Workers, And Should Not Be Diminished

Makes sense, right? It’s the company that controls the workplace, after all.

And if the safety equipment is provided and the worker ignores it? Well, then the company is off the hook. And if the worker comes back from lunch bombed out of his skull and is solely responsible for getting hurt, well, then it’s also on that worker.

Did you see that word “solely?” There is no comparative negligence for this Labor Law violation. It’s all or nothing. One way or the other.

New York construction companies don’t like the Scaffold Safety Law, claiming that they want to be able to blame the worker for part of the accident, even if they failed to provide the proper safety equipment. But since the company controls not only the workplace but all the witnesses too — who wants to risk losing their job by testifying against the boss? — the rule is absolute.

New York’s construction companies have routinely failed to convince the New York Legislature to change the law because the current law makes perfect sense to others (and construction in New York has, quite obviously, flourished during its time).

This is a state-wide public policy decision that’s been oft-debated in Albany and New Yorkers have decided that it works. If another state doesn’t like it, so be it. As Justice Louis Brandeis who once wrote, a “state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

And New York has chosen to be that state-wide laboratory for worker safety.

Construction companies have belly-ached to our Legislature about insurance premiums, but they don’t want to release the data for how the premiums are calculated. They don’t segregate out, for example, injuries from height-related accidents that are covered under the law from injuries related to getting hit by a car on the work site that are not. Every year there is a bill in the New York State Legislature directly on this point, the Scaffold Sunshine Law, which would require disclosure of the real basis for insurance premiums. Guess who objects to it? Yeah. The construction companies and their insurers. It’s absurd to whine about insurance premiums when no one can see the books.

Many of these dangerous construction jobs are taken by folks who live paycheck-to-paycheck, and feeding the family is Job One. Oddly enough, their first priority is not walking into court to testify against the boss that the ladder the boss provided was old and busted, and that he told the workers they damn well better use it or go home.

No. Feed the kids, pay the rent, and if Juan got hurt due to that busted ladder, well, maybe those other workers didn’t really see that busted ladder all that well. Assuming they are still employed. Protect thyself. And thy family.

That is the state rationale for doing it this way.

So — and stay with me here because this is the point of the post — having failed in Albany to change a New York law based on New York public policy concerns, and not wanting to open up their books so others could see if their insurance argument actually had any merit, what do the construction companies do? HOWL TO WASHINGTON: HELP!!! HELP!!! HELP!!!

Yes, that’s right, they’ve convinced some Republicans in Washington to engage in a federal power grab over New York construction and New York policy considerations. I shit you not. And it’s only for New York.

The bill is H.R.3808, with the misnomer Infrastructure Expansion Act, sponsored by New York Congressman John Faso (@RepJohnFaso), whose district covers the Catskills. The bill should properly be called the #FederalPowerGrabAct. And that’s what I’ll call it, because that’s what it is. So now it has a proper name.

And Faso couldn’t be more blunt on the usurpation of state power with the #FederalPowerGrabAct. Faso simply admits it in the bill’s description:

To preclude absolute liability in any action against a property owner or contractor for projects receiving Federal financial assistance for infrastructure and transportation development, and for other purposes.

And he says so on Twitter, that this is only a New York issue:

His own constituents were not kind to him in response:

So the question is, will the GOP pass a bill that simply targets the policy decisions of a particular state?

We’ve seen this act play out before. And it often comes in the context of tort “reform” wherein the reform isn’t actually reform but, rather, interceding into state issues to engage in liability protectionism for big companies that cause injuries.

Back in 2005 a Republican Congress and Republican President tossed their limited government principles aside to pass the Graves Amendment, which impacted liability for car rental and leasing companies. They didn’t like New York law and policy, so the GOP simply seize more power for Washington.

And last year the Republican Party tried to federalize medical malpractice law, and is still trying. If you don’t like local law, then simply expand federal power.

Apparently, limited government is all-important. Except on those days when you decide limited government is for losers.

This bill is scheduled for a vote in the House Judiciary Committee on Tuesday. The other Republican sponsors — and the #FederalPowerGrabAct only has Republican sponsors, only from New York, asking for federal intervention on this New York law — are Chris Collins, Elise Stefanik, Claudia Tenney and Tom Reed.

The chairman of the committee is Bob Goodlatte, who has long campaigned on the issue of states rights. Such as this: House Passes Goodlatte Amendment to Prevent EPA Power Grabs

And this: Goodlatte Files Amicus Brief on Chesapeake Bay Case

Chairman Goodlatte: “EPA’s power grab surrounding the Chesapeake Bay TMDL sets a dangerous precedent by usurping authority delegated to the states in the Clean Water Act simply because the agency disagrees with a state’s decision on implementation.

And check out this summary of Goodlatte’s staunch support for all manner of states rights: Bob Goodlatte: A Consistent Champion of the Tenth Amendment

And this opinion piece from Daniel Horowitz in the Washington Times:

A core tenet of constitutional conservatives and libertarians — is the understanding that all power does not and must not rest solely in the hands of the federal government. Most Americans understand there must be a balance of powers between Congress, the presidency and the judiciary. Just as the Constitution established checks and balances between branches of the federal government, the 10th Amendment established a similar balance — reserving all powers to the states that were not delegated by the Constitution.

As a Virginian and a conservative, I’m proud of the manner in which the chairman of the House Judiciary Committee, Republican Rep. Bob Goodlatte of Virginia, has regularly defended the 10th Amendment. Throughout his career, Mr. Goodlatte has been a staunch and consistent advocated for federalism and a protector of the 10th Amendment.

Will Goodlatte permit the #FederalPowerGrabAct to get out of his committee? Will he try to substitute federal judgment for New York judgment that has been around for 130 years?

We find out Tuesday. And if you want Goodlatte to know you are watching well, his Twitter handle is @RepGoodlatte.

Will your Congress member be one of the ones that will attempt the federal power grab? The list is here.

February 29th, 2016

Donald Trump and New York’s Labor Laws

Empire State Building under construction. Photo by Lewis W. Hine/George Eastman House/Getty Images

Dear New York Legislators:

It isn’t often that presidential contests play much role in New York politics, given our placement in the calendar of primaries. While this year may be an exception, for the most part the yelling is all done by the time our primary comes around.

But thanks to Donald Trump, this year those politics do play a role, albeit in a most unexpected way.

As you likely know, Trump hired undocumented (illegal) immigrants to help build Trump Tower on Fifth Avenue. The “Polish Brigade” was in charge of demolition to clear the way for Trump Tower.

And if you read the stories about it, you will see something of profound importance to legislators — that worker safety gives way when money is at stake. For instance, regarding the demolition of the building that had previously been at the site:

Mr. Kozak and other Polish immigrants who were hired for the demolition said in interviews that they often worked in choking clouds of asbestos dust without protective equipment.

This story pops up in the news due to Trump’s hypocrisy when crying about immigrants, but let’s leave those politics aside today. It isn’t just that he saved money for himself by hiring them, and took advantage of their desperate need to work, it’s about the ease with which laws can be broken and lives placed at risk.

While almost all the news stories are tinged with presidential politics — with perhaps a healthy dose of Trump-style snark — let’s try to focus on the underlying facts. This summary comes from the Daily Beast, including the judge’s determination that Trump was paying workers (when they were paid at all) “off the books”:

The 200 demolition workers—nicknamed the Polish Brigade because of their home country—worked 12-hour shifts, seven days a week with no overtime to knock down the old Bonwit Teller building and make room for Trump Tower on Fifth Avenue in Manhattan.

According to testimony in a protracted civil suit in federal court, the laborers were paid $5 an hour or less when they were paid at all. Some went unpaid after the contractor had financial troubles. A few never received even the paltry sum that was owed them for their dirty and hazardous efforts preceding the construction of Trump’s monument to his own wealth.

“They were undocumented and worked ‘off the books,’” Manhattan federal Judge Charles Stewart said of the workers after they became the subject of a 1983 lawsuit. “No records were kept, no Social Security or other taxes were withheld.”

Make no mistake, when it comes to worker safety, it’s all about builders trying to save money. And the safety problems can pop up anywhere — if it can pop up on a high profile Fifth Avenue construction project then every place has the potential for such conduct.

As you ponder changes to the Labor Law, a subject that seems to come up each session as builders try to eviscerate it so they can have a bit more, ahem, latitude on safety issues, ponder this: When an accident happens at a construction site, who has control of the evidence and witnesses? Can injured workers rely on their co-workers to give accurate testimony about conditions on the site, with their own jobs at stake if the testimony isn’t what the builder wants?

Do people immigrate to this country to make money to feed their families back home, or to give support to Juan and Manuel that they just met last week?

Usually the faux-reform — reform is a word that should be used for improvements, not destruction — comes up with the scaffold law. When employers don’t provide proper safety equipment and a worker is injured at a height-related incident, the employer is held liable unless the worker was solely responsible. Builders, of course, would love to have a comparative negligence standard, so that they can point the fingers back at the workers and say, “Hey wait! Maybe a jury will find the workers partly at fault!”

But, of course, workers are handicapped by lacking control and access to the work site after injuries. And it’s the builders who are in the best positions to make sure the safety equipment is available.

So, dear Legislators, while many of you have no doubt cracked your fair share of Trump jokes, let’s put that aside today and look at what he’s given us– an inside look at the construction site to see what actually happens, as opposed to what should happen.

Respectfully yours, Eric Turkewitz

December 7th, 2015

Watching Danger in Real Time

Photo by Sarah Nir, Dec. 7, 2015. Painters on The Wave in Brooklyn

As I prepared to go to lunch a few minutes ago, I checked Twitter and saw this photograph from New York Times correspondent Sarah Nir. She knew instantly there was danger afoot:

Painters on The Wave in Wburg paint tethered just to a slim balcony rail. I’m sick.

And she said something. The response was in a follow-up tweet:

I told the man here that they were improperly rigged and needed to be safer, and he responded “I just need a job“

This is life for many people. And this is the reason we need tough laws that hold contractors responsible for putting workers in danger. The workers — often poor, immigrants, and sometimes undocumented — often have little choice. They can do the job or they can go home and never come back. And when you need to eat, that is a tough decision.

Then, if something awful happens, it will be the contractor that will control the construction site and the other employees (witnesses). Who will risk their job to testify that the injured worker was told “Do it or go home?”

It was just this morning that I wrote a piece responding to complaints about our scaffold law, which holds contractors strictly liable for injuries if they fail to provide safety equipment and the accident is height-related. Insurance companies complain to the Legislature that we should instead have comparative fault, and that the contractors should get a chance to lower their liability by blaming the worker (who likely had no choice) and having jury awards reduced by the proportionate share.

But this is living proof why that doesn’t work. You do the job or you go home. And it is the contractor that controls the job site.

Despite the fact the man appears he might be tied to the railing (which is being worked on by a co-worker), it is clear that this would be insufficient to arrest a fall, and doesn’t even come close to OSHA guidelines.

Of course, not all contractors risk the lives of their workers this way. But those that provide proper safety equipment don’t have to worry quite as much about injuries and death, do they?

December 7th, 2015

Hey New York! Can We Let the Sunshine In?

Empire State Building under construction. Photo by Lewis W. Hine/George Eastman House/Getty Images

Much has been written recently about the conviction of New York Assembly Speaker Sheldon Silver, and New York’s opaque “method” of distributing money. Short version of the story: there is a ginormous amount of discretion that goes to New York’s legendary “three men in a room” when it comes to distributing cash from various slush government funds.

This leads to the not insubstantial problem that public money may be traded for private favors or business. Our former Senate leader Dean Skelos is also on trial for corruption, and for all I know, Gov. Andrew Cuomo could be next.

But the money and favors sloshing around Albany are not, by any means, the only places where opaque business might be done.

It also exists in insurance company arguments to eviscerate a part of our Labor Law known as the Scaffold Law, which protects people working at heights if the contractor fails to follow required safety rules, by making the contractors strictly liable.

These two concepts are tied up together in a Cato Institute article written by Walter Olson, he also of Overlawyered fame. I won’t take issue with his conclusions on trial lawyers, but rather, upon one of the “facts” that his opinion is based upon. Notice those scare quotes around “facts?” That’s where we’re headed.

In condemning trial lawyers, Olson writes:

I got interested in Silver originally because of his distinctive role as protector of New York’s trial lawyers and their various schemes for using liability law to keep up a steady flow of redistribution through the court system.

But what factual support does he cite? It apparently comes, if you follow his links, to a 2012 column in the Daily News by Bill Hammond regarding the scaffold law, and these comments from a defense lawyer and contractor (with the bolding provided by me):

“The problem with the law is it’s so expansive that virtually every accident on the job site is going to result in civil liability,” said defense attorney William Greagan of Goldberg Segalla in Albany. “I tell my contractors, if an ambulance comes to your site, you’re going to get sued.”

The result, according to Michael Elmendorf of the General Contractors Association, is that New York contractors have to pay an extra 30% for their liability insurance.

For the $5 billion Tappan Zee project, that senseless cost equates to a whopping $100 million.

That claim of 30%, however, is wholly unsupported. In other words, Olson’s theory is supported by an unsupported anecdote, and not empirical evidence.

So here’s the funky part, and the reason that I write today. The actual data that is needed to reach a conclusion as to how much, if any, additional cost is caused by the scaffold law is kept secret by the insurance industry. The insurers simply lump the scaffold law lawsuits in with all the others: motor vehicle injuries, trips/slips and falls, electrical injuries, chemical injuries, and food poisoning from the company food truck.

When the insurance companies, therefore, claim that premiums are going up due to scaffold law lawsuits, the only proper response is: Show me the claims data. And they won’t. They refuse.

The conclusion of a 30% hike based on the scaffold law is nothing more than a wild guess. It has just as much validity as me typing up 2%.

In a Twitter discussion over the weekend, Olson defends his argument by writing that”Customers, not just carriers, can measure how much more it costs to insure certain kinds of job in New York.” But this is error. The customer doesn’t know, because the customer can’t know, because the data is kept secret.

Hammond does the same thing, citing to a 2013 Crains’ article by Daniel Geiger on rising school construction insurance costs. But that article suffers from the same problem: opinions are given without actually looking at the data to determine the reason for the costs. There is no way to determine how many claims, or payments, are due to height-related injuries where the contractor failed to provide safety equipment.

Conclusions based on undocumented anecdotes are worthless, for as we all learned in grade school, “garbage in, garbage out.”

But wait, there is a remedy for this! I’m not going to leave you hanging.

And it sits in the form of legislation proposed by Assemblyman Francisco Moya. This legislation calls for transparency by the insurance industry, so that it opens its books so that the claims can be examined. For only then can an intelligent discussion even begin. Moya writes:

“The Sunshine Bill will shed much needed light on insurance industry pricing and practices. For years the industry has claimed that New York’s strong workplace safety regulations drive up insurance rates, but have never provided any actual proof.”

If I showed up for a trial and asked the jury to just “trust me” they would toss me out on my ear. As they should. I can only help my clients by presenting evidence.

And if the insurance industry claims that hikes are based on the scaffold law — but it steadfastly refuses to support that case with actual evidence — it too should be tossed out on its ear.

Unsupported claims shouldn’t be used by people who care about public policy.

So here’s the magic question: If you were a legislator, or advocate for policy change, wouldn’t you want to know what the data said before trying to fashion a solution?

As Louis Brandeis once said, “Sunlight is said to be the best of disinfectants.”