Faso bill to undo NY’s Scaffold Law heads to House vote

Rep. John Faso’s push from Washington to undo New York’s 133-year-old Scaffold Law cleared its first hurdle on Tuesday, when a House committee approved his bill to deny federal funding to construction projects that use New York’s “absolute liability” standard for workplace injuries caused by falls.

The House Judiciary Committee voted 16-14 along party lines on Faso’s bill, following an unusual debate that mixed arguments about federalism and tort law with unrelated, partisan clashes over the Trump-Russia probe and its spinoffs. Faso’s “Infrastructure Expansion Act,” cosponsored by four other New York Republicans, heads next to the House floor for a final vote. There is no Senate sponsor yet for the bill.

The Scaffold Law, enacted to protect workers erecting skyscrapers in New York City in the 1880s, required employers to ensure their workers’ safety, and courts have determined that to mean that employers and property owners are fully responsible for gravity-related falls at work sites that lacked adequate safety measures. Contractors and business groups have long railed against the law, arguing it inflates construction costs in New York by raising liability insurance costs, while unions have defended it as a reasonable and vital protection for workers in dangerous jobs.

That longstanding Albany debate migrated to Washington on Tuesday. Jerry Nadler, a New York City Democrat who started his political career as as assemblyman, and whose tenure in the Assembly overlapped with Faso’s, recalled debating the Scaffold Law 30 years ago, and defended it by pointing out that employers are held liable only if they fail to provide a safe work environment. He called Faso’s bill a congressional “end run” around New York’s lawmakers.

“The key point is this is a decision for New York to make, and not for Congress,” Nadler said.

Faso, whose district includes Ulster and Sullivan counties, and the four New York co-sponsors don’t serve on the Judiciary Committee and couldn’t take part in the debate. That left Republicans from distant states, such as Steve King of Iowa, Louie Gohmert of Texas, and Bob Goodlatte of Virginia, to argue against New York’s Scaffold Law. Their arguments and the Democrats’ counter-arguments reversed their parties’ usual postures on federalism, with Republicans defending Washington’s involvement in the liability standards of a single state.

One Republican, Ted Poe of Texas, wasn’t buying it. “This is not our issue,” Poe said, after bemoaning the erosion of the 10th Amendment’s principle of states’ rights. “It’s a state issue. I don’t think Congress ought to be involved in this at all.”

But other Republicans argued that the application of Faso’s bill to construction work that receives federal funding – directly or indirectly – made the issue a legitimate concern for Congress.  “We’re chasing federal dollars that my constituents could otherwise be on the hook for,” said Andy Biggs of Arizona.

That ticked off Hakeem Jeffries, another New York City Democrat who also got his start in the Assembly. He heatedly pointed out that New York is a major “donor state” that sends about $40 billion more in taxes to Washington each year than it gets back in services. The congressmen defending Faso’s bill could not make that same claim about their own states, he said.

“Don’t lecture us about taxpayers you represent being on the hook,” he said. “That’s a joke.”

The debate got more complicated when Goodlatte, the committee chairman, broadened the bill to require states to apply either a “comparative negligence” or “contributory negligence” standard for falls on federally subsidized projects. Jamie Raskin of Maryland protested that with that change, the bill could now upend tort laws in every state. Goodlatte countered that state courts would be free to preserve whichever of those two standards is already in place.

In a press release last week about the upcoming committee vote, Faso provided letters of support for his bill from organizations that included Habitat for Humanity of New York State and Associated General Contractors of New York.

“New York’s Scaffold Law is a regulation for the sake of regulation,” Faso said in that release. “It provides no measurable safety improvements and costs our state dearly. By passing this legislation, every dollar of federal funding going towards repairing roads, bridges, airports, and building affordable housing will go further. With infrastructure investment upcoming, there is no time like now to fix this burdensome regulation.”

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