The Race Case: Opposing Sides Cite Race in Scaffold Law Battle

The state’s Scaffold Law has long been a source of deep division and disagreement. The law’s supporters, including unions, trial lawyers and worker advocates, say that it is critical to ensuring the safety of construction workers. Building contractors, developers, insurers and other opponents say the legislation has dramatically raised project costs while allowing workers to avoid responsibility for any role they may have played in an accident.

Now, with another battle over the law brewing in Albany, proponents on both sides of the issue have an argument in common: that the law should be kept in place or, alternately, reformed, because of race.

“The fact of the matter is, this is an issue that is affecting construction workers of color—that is a fact,” said Assemblyman Francisco Moya, who strongly supports the law. “When you read about the accidents that happen, most of them are fatalities. A lot of them are immigrants. These workers come in here, they get hired, contractors don’t provide them with any safety training or the appropriate safety equipment, and we’ve seen it time and time again.”

The state law holds owners and contractors “absolutely liable” in the case of a gravity-related injury to a worker if the required safety equipment is not provided. One proposed reform would introduce a “comparative liability” standard, in which a worker could share some of the responsibility for an accident.

But supporters of the law say that construction workers are often ordered to work in unsafe conditions. Immigrants and Latinos may not speak the same language as their overseers, and also face the risk of being fired if they demand a safer working environment.

Moya cited the example of one immigrant injured on a construction site who was simply taken to a clinic and dropped off with a hundred dollars. The worker had no safety equipment, and an unsecured machine fell on him and injured him.

“They’re afraid to complain, because then they’ll get fired, or they’ll get threatened,” Moya said. “And should we pick safety over a paycheck? That’s what’s happening right now.”

A new study from the Center for Popular Democracy bolsters Moya’s arguments. Between 2003 and 2011 immi-grants or Latinos made up 60 percent of falls at construction sites, according to data from the federal Occupational Safety and Health Administration (OSHA). In New York City three out of four injured workers were Latino or immigrants, with higher rates in Queens and Brooklyn. In 86 percent of the cases, the employer was non-union.

“The fact that smaller, non-union companies tend to whack the oversight training and equipment necessary to keep safe disproportionately endangers workers of color and Latino and immigrant workers particularly,” said Connie Razza, the researcher on the report. “The Scaffold Law is a vital stopgap to the failure of OSHA to be able oversee and prevent such accidents.”

But critics argue that minorities who own small contracting businesses are also victims, since insurance costs have gone up with the Scaffold Law in place, often making it unaffordable to get involved in construction projects.

In New York City the School Construction Authority has been a pioneer in awarding building contracts to firms owned by minorities or women, or MWBEs. But Lorraine Grillo, the president of the SCA, is concerned that her agency will no longer be able to cover the rising insurance costs to continue its MWBE program.

“This is, without a doubt, the most critical issue we face right now,” Grillo said at a City & State conference earlier this year. “This is a lose-lose for everyone, in the private world as well as in the public sector. If we don’t join together and get this done, and get this done right away, our MWBE program goes away, our mentor program, which I’m extremely proud of, goes away.”

Like other Scaffold Law proponents, Moya is not persuaded.

“When they start going around and saying this is costing us money—listen, this won’t affect any company that’s doing the right thing,” the assemblyman said. “If you’re doing the right thing, if you’re providing your construction workers, the employees that you hire, with the appropriate safety equipment and the appropriate training, there’s nothing to worry about. We’re seeing now more and more that they’re using this as an excuse to repeal the Scaffold Law.”