CPD IN THE NEWS

Salon - October 29, 2013, by Josh Eidelson -

If the potential president does business's bidding on a new scaffolding bill, workers will die, an advocate warns.

Industry groups hope New York Gov. Andrew Cuomo – a presumed presidential aspirant who’s frequently defied liberals on economics – will back their push to “reform” the country’s toughest law holding contractors responsible when workplace falls end in injury or death.

“I think we’d be picking workers up off the street,” if the state’s “scaffold law” is gutted, said Joel Shufro, who directs the New York Committee for Occupational Safety and Health. “Because I think employers would cut corners in ways that would result in workers being injured or killed.” Cuomo’s office did not respond to inquiries.

In an Oct. 16 letter, dozens of business groups and the New York Conference of Mayors urged Cuomo to reform the stat’s “scaffold law,” a move they said would “help alleviate fiscal stress by saving taxpayer dollars, creating jobs, and increasing revenue to the state and localities.” Signatories included the Lawsuit Reform Alliance of New York, whose director Tom Stebbins told Salon that the group has made the issue a priority because “insurance rates put people of business, they take jobs away, and as we’re finding out more and more, it’s costing us more and more in our public projects.”

The 128-year-old “scaffold law” allows contractors to be held liable for “gravity-related” injuries suffered by their employees when management failed to comply with a safety rule, even (with certain exceptions) if the employee was also at fault. Stebbins contended there was “no data that supports” the claim that it improves safety, and argued that what he called the law’s “absolute liability” standard means “you’re assigned fault without negligence,” and actually “makes job sites less safe.”

“If you absolve employees from responsibility for their actions, they’re less responsible,” said Stebbins. “And if employers are guilty under almost any circumstances, they’re not as incentivized.”

NYCOSH’s Shufro countered that the law holds employers liable “if they violate OSHA regulations or other city, state ordinances, do not provide appropriate training, do not provide appropriate personal protective equipment … But if they are in compliance … they are not liable, they will not be found at fault.”

Stebbins acknowledged that “if you were the only cause of your injury, then that absolute liability doesn’t apply,” but he told Salon that “even the responsible contractor can’t stop every situation.” Stebbins cited the case of a worker who he said intentionally “jumped off the building in order to make a scaffold law claim.” Under current law, he said, a contractor “could be a fraction of a percent responsible and be held liable for 100 percent of the judgment,” rather than having “liability apportioned by fault.” He argued that the law also hurt workers because cash devoted to insurance costs is “money that’s not being spent on jobs, not being spent on union labor.”

Labor groups rejected such claims. “Opponents claim that the Scaffold Law drives up costs and is a job killer; the reality is that it helps prevent a job from being a worker killer,” New York AFL-CIO president Mario Cilento told Salon in an email. Cilento credited the law with “placing responsibility for providing adequate safety equipment and measures squarely in the hands of contractors and owners, ensuring that there is absolutely no ambiguity in who is responsible for maintaining a safe workplace in a very dangerous occupation.” He added that “insurers and contractors try to gut the Scaffold Law and in turn workplace safety” over and over, but “they’ve been rebuffed because the Legislature has recognized that there is no price tag on the lives and well-being of New Yorkers.” Cilento’s Illinois counterpart, state AFL president Michael Carrigan, emailed that the labor federation “regrets the repeal” of the similar Illinois Scaffolding Act, prior to which “Illinois had been the second safest state in construction deaths and accidents.” (The business groups’ letter to Cuomo credited the repeal of Illinois’ law for a subsequent 53 percent decline in construction injuries and said it gave the state “the 10th lowest injury rate in the country”; NYCOSH attributed the decline in injuries to overall national trends.)

“All this law says is that the employers shall be liable if they do not follow rules and regulations that govern safety on these jobs,” said NYCOSH’s Shufro. “So it seems to me that the best way of reducing their costs is to require employers to follow the law.” An NYCOSH analysis of OSHA data on New York state construction found that “At least one OSHA fall prevention standard was violated in nearly 80 percent of accidents in which a worker fell and was killed.”

A study released Thursday by progressive Center for Popular Democracy argued that the industry’s death and injury toll is disproportionately borne by immigrant workers and Latinos. CPD found that Latino and/or immigrant workers made up 60 percent of “fall from elevation fatalities” investigated by OSHA in New York State, and reported that “In 2011 focus groups, Latino construction workers reported fearing retaliation as a key deterrent to raising concerns about safety.”

While business groups have long sought changes in the scaffold law, both sides said this year’s showdown on the issue could be particularly acute. “More and more we’re seeing the cost to the public,” said Stebbins, including insurers “leaving because they can’t sustain an absolute liability and it’s impossible for them to gauge risk.” Shufro countered that insurers “have refused” when asked by legislators to “open the books” and document their losses; NYCOSH also notes that New York experienced only a 9.1 percent drop in construction employment from 2006 to 2011, while the national decline was 28.4 percent.

Cuomo has previously clashed with labor on issues ranging from public workers’ pensions to an expiring (ultimately partially extended) millionaire’s tax. Salon’s Blake Zeff argued in a January BuzzFeed essay that Cuomo’s “approach to balancing two competing interests – piling up points to advance in a Democratic primary for president, while steering to the center in key areas (and carefully avoiding antagonizing monied interests who fund campaigns and influence elite opinion) – has consisted of aggressive advocacy of ‘cultural’ or ‘social’ progressive causes, while downplaying economic ones.” Cuomo this month appointed GOP former Gov. George Pataki to co-chair a commission on reducing tax rates, a move that Michael Kink, who directs the labor-backed coalition A Strong Economy for All, compared in a Capital New York interview to “bringing in Godzilla to oversee the rebuilding from a Godzilla attack.”

Shufro said the scaffold question would “be one of the major political battles that will go on and dominate Albany for the next session,” and so Cuomo was “going to have to make a certain decision about which side he’s going to come out on … I know that this is an important issue to labor, just as it seems to be an important issue to the business community.” Shufro predicted Cuomo’s approach to the scaffold law would be “one of the major issues that will help unions make decisions about how they see him going forward.” He added, “It’s not an easy place to be in.”

Source:

Gap follows Abercrombie & Fitch, Starbucks and Victoria’s Secret in promising to end on-call scheduling. It took strong public and regulatory pressure to get the companies to change, but change they have.

Unfortunately, unpredictable scheduling is still widespread.According to federal data, 66 percent of food service workers, 52 percent of retail workers and 40 percent of janitors and house cleaners have at most a week’s notice of their schedules.

On-call scheduling is but one of many dubious pay and scheduling practices. Workers who show up for a scheduled shift may be sent home without pay if business is slow. Schedules can fluctuate from week to week, making it hard to manage family life or calculate a budget.

Victoria’s Secret engages in still another questionable practice. Salespeople are offered a bonus based on a formula that takes into account sales per hour. But the calculation includes hours when the store is closed — hours spent tidying up, for instance, when there is obviously no chance to make sales. By reducing the sales-per-hour number, this formula can put a bonus out of reach. Victoria’s Secret would not comment on its bonus policy.

The fundamental problem is that as scheduling has become a tool for higher profits, it has also generated unfair practices. Software lets employers calibrate maximum profit at minimum labor cost. Managers are often compensated on the efficiency of their staff. A retail manager’s best employee would not necessarily be the top seller, but rather the one who sells the most at the lowest pay.

Then, too, there is abuse of overtime, in which a company shifts work from hourly workers eligible for time-and-a-half pay to salaried workers who are ineligible for overtime pay. A former salaried executive assistant manager at Walgreens, Caleb Sneeringer, said his hours ballooned to up to 70 a week when the chain stopped scheduling most hourly workers for overtime around 2010. Walgreens says it does not have a no-overtime policy and tries to manage “overtime hours efficiently while providing a high level of customer service.”

 

 

A rule recently proposed by the Labor Department would be both fair and efficient. It would make salaried employees eligible for overtime if they make less than $50,440 a year. (The current threshold, which has barely budged since 1975, is $23,660.) Retailers and other low-wage employers strongly oppose the proposal. Meanwhile, bills in Congress and some stateswould curb some of the most disruptive scheduling practices, including on-call shifts or sending workers home early without pay. Approving these bills will require lawmakers to put the interests of workers ahead of their corporate contributors.

 

Source: New York Times

At noon, members of the Hedge Clippers campaign, New York Communities for Change and The Center for Popular Democracy protest Blackstone, a company behind foreclosures in Puerto Rico, 345 Park Ave., Manhattan.

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Working at The Center for Popular Democracy (CPD), Kate has partnered with youth-led organizations on various policy initiatives and community organizing campaigns, and has represented young people facing school suspensions. At Proskauer, she has conducted trainings and served as a mentor and supervisor, enabling our lawyers to make a real difference in school suspension hearings.  Even when a suspension cannot be avoided, an attorney may be able to help reduce its duration or secure other benefits, such as help for a learning disability, or a transfer to a school that is better-suited to the student.

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