Upload
allyson-alison-walker
View
215
Download
0
Embed Size (px)
Citation preview
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.
Liberty Mutual Insurance 3
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
Liberty Mutual Insurance 4
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.
Liberty Mutual Insurance 5
How NYLL Impacts Your Business
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
Liberty Mutual Insurance 6
How NYLL Impacts Your Business
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.
Liberty Mutual Insurance 7
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
Liberty Mutual Insurance 8
Specific Articles of Concern
Liberty Mutual Insurance 9
New York Labor Law: Sections 200, 241(1) and 241(6)
Liberty Mutual Insurance 10
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
Liberty Mutual Insurance 11
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
Liberty Mutual Insurance 12
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
Liberty Mutual Insurance 13
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
Liberty Mutual Insurance 14
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
Liberty Mutual Insurance 15
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
Liberty Mutual Insurance 16
Risk Reduction Strategies
Liberty Mutual Insurance 17
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
Liberty Mutual Insurance 18
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.
Liberty Mutual Insurance 19
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
Liberty Mutual Insurance 20
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
Liberty Mutual Insurance 21
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
Liberty Mutual Insurance 22
Helpful Tools
Safe Work Plan (SWP) Template and Example Work Site Inspection Log and Example Worker Safety Citation Template Stop Work Order Template
Liberty Mutual Insurance 23
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
Liberty Mutual Insurance 24
Open Discussion and Questions