Proposed legislation in New York state that would see fines to building contractors skyrocket for safety violations causing injury or death has more than its share of critics.
The bill sets the dollar amounts of fines judges must apply.
For misdemeanors or minor violations, contractors would face fines of $300,000 to $500,000, a hyper-jump from current penalties.
“A contractor may get a minor injury (to a worker) and all of a sudden you have to pay a minimum (fine) of $300,000,” says Louis Coletti, president of the Building Trades Employers Association (BTEA).
He says that fine could “devastate” a small contractor putting them out of business.
The BTEA has 200 small contractors, many of which are minority and women-owned enterprises. With 1,200 members, the association has a wide range of unionized contractors including the state’s largest GCs and construction management companies.
Coletti argues a few simple revisions in the language of the bill could strengthen legislation and target “contractors who don’t provide a safe worksite.”
He says fines should not be set in stone, but rather be invoked at a judge’s discretion.
“Why not let a judge or a judge and jury make a determination based on the specific facts of that accident or fatality for what the penalty should be?”
The BTEA also wants the word “injury” removed from the bill and replaced with “serious physical injury” because the word injury is too broad in scope. A minor injury could result in a business-killing fine for a contractor, Coletti says.
The bill should also contain language stating it applies “prospectively,” and include the term “recklessly” so companies won’t face “drastic fines” for minor violations or misdemeanors.
“What we are proposing increases accountability and provides clarification for what the intent of the bill is,” he explains.
The proposed legislation stems from a case where a young immigrant was killed working in construction in New York City in 2015 in which the contractor and supervisor did not face stiff fines for unsafe conditions on the job, says Coletti.
Jacques DeGraff, chair of the Minority and Business Enterprise (MBE) Leadership Summit, says it is disappointing that the bill was developed without the consultation of “available and accessible” members of the MBE, a New York City coalition that includes the Women’s Chamber of Commerce, One Hundred Black Men of New York, the Urban League, the NAACP, the Hispanic Chamber of Commerce and other influential groups.
“I think it is a flawed and inadequate legislation with a lofty goal.”
DeGraff, who says worker safety is a core fundamental of the MBE, expresses concern over how the legislation might be enforced and “who would be penalized when it is violated.”
“Good laws can be applied in an uneven fashion.”
He hopes judicial discretion will be exercised “so people will be treated with consistency and fairness across the board.”
First-time offenders, for example, should be judged differently than multiple offenders.
“A more thoughtful or comprehensive approach could have been constructed if we had been included,” DeGraff points out.
Coletti says over the past five years, 85 per cent of the construction fatalities in New York City have been on small non-union jobs, according to statistics by the Occupational Safety and Health Administration.
The New York City Department of Buildings created a special investigative squad for projects 10 storeys or less because its statistics show that sector has the highest number of site safety violations, he adds.
One of the BTEA’s fears is that the Carlos Bill could be on a par with New York Labor Law 240, The Scaffold Law, which states a contractor has “absolute liability” for any injury or fatality on a jobsite, regardless of the conditions.
“We have no ability to offer a defence.”
The Scaffold Law is “one-of-a-kind in the U.S.,” Coletti says. It is why the cost of liability insurance in New York is so high – $41 a square foot for a new build compared to $4 and $5 in New Jersey and Connecticut respectively.
“Minority and women-owned firms either can’t get insurance or the cost is so prohibitive it hurts their ability to grow. The scaffold law is a job killer in New York State. It is what drove our concerns with this bill.”
Approved by state legislators, the Carlos Bill is before Governor Kathy Hochul who has until year’s end to sign it into law.