new york labor law: what you need to know subcontractors, building service providers & vendors...

New York Labor Law: What You Need to KnowSubcontractors, Building Service Providers & Vendors

Commercial Insurance

Our risk control service is advisory only. We assume no responsibility for management or control of customer safety activities nor for implementation of recommended corrective measures. This presentation is based on information supplied by the customer and observations of conditions and practices at the time of the visit. We have not tried to identify all hazards. We do not warrant that requirements of any federal, state, or local law, regulation or ordinance have or have not been met. This report does not create coverage. Only your policy or contract provides coverage subject to its terms, conditions, and exclusions.

Liberty Mutual Insurance 2

Disclaimer

This presentation is an introduction and overview to the subject.

It is NOT legal advice. Any liability risk strategy involves legal matters which can be

intricate:– Subject to statute, case law, interpretation– Subject to jurisdictional variation

Consult with competent legal counsel and your insurance agent before acting on this information.


Overview

How NYLL impacts your business Introduction to the New York Labor Laws

– NYLL 240(1) – The “Scaffold” or “Gravity” Law– NYLL 241(6)– NYLL 200

Risk Reduction Strategies– Prevention– Transfer of risk financing– Management Practices Critical to Defense

Tools and References Discussions/ Questions


How NYLL Impacts Your Business

An injured “worker”, either a sub-tier contractor’s or your own…

Can sue a “property owner, manager or their agent” (often the General Contractor)

For damages beyond what workers’ compensation allows:

– Pain and suffering– Emotional distress– Loss of consortium– Etc.



The property owner, manager and GC are likely indemnified by YOUR COMPANY

Injured worker’s WC Insurance Carrier recovers via lien or direct legal action

YOUR Company’s CGL Insurance Carrier can be obligated to pays ALL, pursuant to NYLL



Damage awards can be significant:

$18,334,226 - Carpenter alleged spine, ankle injuries from 15-foot fall.

$13,000,000 - Makeshift scaffold's failure had paralyzing result.

$12,561,772 - Laborer hit by falling piece of scaffold.

$4,000,000 - Worker hit and injured by slab that fell off of forklift.

$1,150,000 - Modified saw caused facial laceration.

$1,100,000 - Drilling accident left worker blind in one eye.


New York State Labor Laws

Part of the Consolidated Laws of New York State A collection of almost 100 statutes passed by the NYS

legislature Govern many aspects of business in the state:

– Taxes– Traffic– Liquor sales


Specific Articles of Concern


New York Labor Law: Sections 200, 241(1) and 241(6)


NYLL Section 240(1)

NYLL 240(1) = “Scaffold Law”. Burdened Parties: Property owners,

managers and their agents Applicability: All “workers” performing

erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure

Duty: Protect workers from gravity related falls or being struck by falling objects


NYLL Section 240(1)

Liability triggers:– Not affording “proper” protection – Protection afforded was defective or failed

Limited defenses– Recalcitrant Worker– Sole Proximate Cause

If liability is determined, injured worker’s negligence does not reduce damage award


NYLL Section 241(6)

Burdened parties: Property owners, managers and their agents

Applicability: All “workers” performing construction, demolition, excavation

Duty: Provide “reasonable and adequate protection and safety”

Injured worker’s negligence can reduce damage award


NYLL Section 241(6)

Liability triggered by violation of certain NY State Code Rules the courts deem “specific” enough to constitute statutory violation:

– 12 NYCRR Part 23 PROTECTION IN CONSTRUCTION, DEMOLITION AND EXCAVATION OPERATIONS

Examples:– Inadequate personal protective equipment– Insufficient illumination.– Tripping hazards in walkways– Faulty power equipment– Unguarded floor openings


NYLL Section 200

Burdened parties: All commercial enterprises in NY Applicability: All “workers”, regardless of direct employer Duty: Provide “reasonable and adequate protection” Injured worker’s culpability can reduce damage award


NYLL Section 200

Liability is triggered by hirer’s negligence in retained control over “means and methods” - “how” the work in performed

Examples of hirer’s negligence in retained control:– Hiring party created the dangerous condition– Hiring party had actual or constructive notice of a dangerous

condition – Hiring party retained control over the work being performed, was

aware of a dangerous condition, and failed to abate


Risk Reduction Strategies


Prevention

Plan and design work to decrease work at heights– Consider construction and maintenance in design– Prefab rather than build in place

Hire sub-tier contractors with demonstrated safety competence and low injury experience

Establish strict safety performance standards for work at heights and falling object hazards

– Consistent expectations for both employees and sub-tier contractors:

• Alternatives to ladders

• Protection of elevated work surfaces

• Personal Fall Arrest System use on unprotected elevations

• Meticulous housekeeping


Transfer of Risk Financing

Retain or develop in-house expertise in NYLL, contractual liability and insurance.

Design and institute an effective contracts management process – understand your risk financing obligations

Understand and communicate limitations of your own insurance coverage.

Limit risk financing obligations to your own operations and negligence.


Transfer of Risk Financing

Pre-qualify sub-tier contractors Consistently assert standard contracts with effective risk

transfer and insurance provisions with sub-tier contractors.– Confirm risk transfer and insurance demands on sub-tier contractors

were satisfied; No paperwork = No work = No pay!!!– Monitor insurance renewals to ensure continuity of protection– Meticulous recordkeeping


Management Practices Critical to Defense

Monitor sub-tier contractor conformance to contract specifications

Stop work for non-conformance Avoid retaining control over the sub-tier contractor’s “means

and methods” In Contract:

– Assign accountability for site safety to the sub-tier contractor– Reserve right to inspect and stop the work for non-conformance with

contract terms– Establish performance-based safety expectations (i.e. compliance

with “All Laws”)– Frame “safety process” expectations


Management Practices Critical to Defense

Utilize a sound “safety process” and require the same of sub-tier contractors:

– Designate someone with responsibility for site safety– Coordinate site safety, security, emergency preparedness, etc.– Educate supervisory staff in NYLL liabilities and controls– Craft and implement written Safe Work Plans (SWPs)– Document worker training in SWPs– Perform routine site safety inspections– Document worker safety violations– Perform NYLL protective investigations– “Injury Free” daily worker sign-off


Helpful Tools

Safe Work Plan (SWP) Template and Example Work Site Inspection Log and Example Worker Safety Citation Template Stop Work Order Template


Related References

RC 6504 NYLL: Subcontractors, Building Service Providers & Vendors

RC 5349 - Contractual Liability RC 5603 - Guidelines for Vendor/Contractor/Concessionaire

Authorization RC 5800 - Contract Manager Risk Transfer Audit RC 5608- General Liability Incident Response Kit RC 5607 - General Liability Risk Improvement Tool for

Construction Operations RC 943 - Scaffolds and Work Platforms RC 858 - Portable Ladders RC 868 - Ladders RC946 - Contracting Work Performed on Company Premises - A

Guide for Contractors


Open Discussion and Questions

new york labor law: what you need to know subcontractors, building service providers & vendors...

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