Legislative Memorandum Re: Construction Safety Act

INTRODUCTION

REBNY, representing over 17,000 owners, developers, managers and brokers of real property in New York City, is pleased to submit this Legislative Memorandum outlining our various positions on the Construction Safety Act – a compendium of 21 new and previously-introduced bills. REBNY applauds the New York City Council for its leadership to make construction sites safer and to insure that every worker goes home in the same condition they arrived to the site.

REBNY’s commitment and interest in construction safety is evident in our members’ long track records in building New York City’s and the world’s most complex and sophisticated buildings with industry-leading safety practices. Some of the Council’s bills reflect the practices that many of our members have already instituted on their sites. 

REBNY highlighted some of these practices in during our presentation on REBNY’s findings on construction safety to the City Council in November 2016. REBNY examined every violation and fatality that occurred on a construction site throughout the five boroughs from 2010 to 2015 and found that the vast majority of fatalities occurred on smaller sites of nine stories or less.[1] Our findings also concluded that accidents occurring on smaller sites are 43% more likely to receive a violation from the NYC Department of Buildings (DOB).[2]

The bills that constitute the Construction Safety Act can be categorized into Apprenticeship Training, Prevailing Wages, Site Safety, Crane Safety, Civil Penalties and Reporting Requirements, and this memorandum is organized accordingly. 

REBNY appreciates the opportunity to offer the following commentary:

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APPRENTICESHIP TRAINING

INTRO NO: 1432 

SUMMARY: Requires contractors working on certain projects receiving City financial assistance to participate in an apprenticeship program, and requires reporting of certain information concerning such projects.

SPONSORS: Kallos, Crowley, Miller

INTRO NO: 1447 

SUMMARY: Requires that all workers at building sites receive OSHA10 training, and requires that workers at virtually every construction site to either 1) be registered with a New York State or US Department of Labor approved apprenticeship program; 2) be a graduate of said program; or 3) have completed a bona fide construction site safety training program.

SPONSORS: Williams, Menchaca, Kallos, Crowley, Lancman, Miller, Dromm, Salamanca, Torres

REBNY OPPOSES Intro Nos 1432 and 1447. Apprenticeship programs promote craft training, not safety training. The two should not be confused with one another. Other than Intro No 1447’s requirement that workers on all sites receive OSHA 10 training, these bills do little to advance worker safety.

Mandating apprenticeship programs at virtually every construction site throughout the city and at city-financed projects will stop many projects in its tracks and/or from ever being realized. Otherwise-qualified construction workers will effectively be unemployed because they will not be able to meet Intro No 1447’s definition of qualified workers on building projects, or face the prospect of starting all over again by enrolling in an apprenticeship program in order to work. 

Apprenticeship programs also impact the MWBE and smaller contractor community. The New York State Department of Labor outlines a rigorous regulatory regime to qualify and approve an apprenticeship program.[3] MWBE firms and other smaller contractors might not have the resources to establish or participate in such apprenticeship program. Even if they did, they would face stiff competition as the building construction trades dominate the apprenticeship programs in New York City.

[4] And assuming that MWBE firms and smaller contractors were able to establish an apprenticeship program today, an apprentice could not be graduated from such a program within the next three years due to statutory requirements, thereby, erasing any gains made by MWBE firms and smaller contractors in the construction industry.

[5] Moreover, there must be other avenues for minority workers to gain entry into the construction trades other than union-sponsored apprenticeships as there are established patterns of discrimination against minority workers in being assigned work.

[6] Requiring apprenticeship programs on projects receiving city financial assistance will also negatively impact construction. The added wage costs will increase overall costs which could impede the progress made thus far toward affordable housing production. Other city-assisted projects such as educational and manufacturing facilities might be affected as the bill’s broad definition of city financial assistance includes “bond financing” which heavily subsidizes non-profit development through Industrial Development Agency (IDA) bonds. Finally, mandating apprenticeship programs on virtually every construction site throughout the city will adversely affect NYCHA’s fulfillment of Section 3 and other resident employment programs.[7]

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PREVAILING WAGES

INTRO NO: 744 

SUMMARY: Mandates that construction workers (employed for at least 90 days) on development projects receiving financial assistance from the City or on a city development is paid no less than the prevailing wage established for their respective trade. Excludes projects that receive as-of-right assistance, tax abatements or benefits; and excludes small businesses with revenues of less than $3 Million. 

SPONSORS: Crowley, Lancman, Miller, King, Kallos, Constantinides, Mendez, Gibson, Cabrera, Cornegy, Espinal, Gentile, Maisel, Mealy, Wills, Levine, Johnson, Koslowitz, Salamanca, Rose

REBNY OPPOSES Intro No 744. While the bill’s ability to promote construction safety is ambiguous at best, the bill will certainly increase project costs. A report from the Regional Plan Association found that open shops which are mix of union and non-union labor have steadily increased market share from 15% in the 1970s to about 40% in 2011.[8] Open shops’ market share has only increased since the report’s release.[9] And the report’s finding that open shops are less expensive that full-union shops still holds true with cost differentials of up to 20 percent. Intro No 744 will impose the cost structure a full-union shop on projects receiving financial assistance from the City including projects including those receive IDA bond financing such as educational and manufacturing facilities. If Intro No 744 is enacted, these projects might never be realized due to the financial infeasibility. 

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SITE SAFETY

REBNY is generally supportive of the following bills with certain qualifications as described below. Indeed, many of these legislative initiatives are rooted in our membership’s best construction practices that were shared with Council last November. However, language in the individual bills could be refined to reflect the realities of construction work because each construction site is different and one-size does not fit all.

INTRO NO: 1429 

SUMMARY: Requires construction workers to receive specific instructions and a review of all tasks during safety meetings at the beginning of each shift for work that is required to be supervised by a licensed person or involves a hazardous activity. Orientation is required to be made in worker’s primary language if requested. Records of all meetings must be kept.

SPONSORS: Ferreras-Copeland, Crowley

REBNY GENERALLY SUPPORTS Intro No 1429, however, more specificity is needed. It is not clear who at the site would be responsible for providing such instruction. Licensed site safety personnel may not have the requisite trade expertise to review all tasks and activities that every worker at the site may commence. For this reason, the bill should be limited to high risk operations such as work on foundations, superstructures, window/curtain walls, masonry, elevators, roofs, and on decks at specified time intervals.

Additionally, we are concerned about the bill’s requirement to communicate in the worker’s primary language if such worker is identifies as being unable to communicate meaningfully in English. REBNY appreciates and recognizes the diversity of the construction workforce but points out that construction supervisors and site safety personnel are already required to communicate effectively with all workers on site.[10] The demands of the bill might be duplicative. Moreover, it runs the risk of employers displacing non-native English speakers on projects to avoid the bill’s requirements.

 

INTRO NO: 1444 

SUMMARY: Requires workers at all construction sites receive site-specific safety orientations. 

SPONSORS: Treyger, Crowley, Miller, Salamanca

REBNY GENERALLY SUPPORTS Intro No 1444, however, as with Intro No 1429, REBNY is concerned about the bill’s possible negative impact on non-native English speaking workers. The bill should also be limited to high risk operations such as work on foundations, superstructures, window/curtain walls, masonry, elevators, roofs, and on decks on specified time intervals.

 

INTRO NO: 1445

SUMMARY: Requires safety netting systems and guardrails to protect floor openings. 

SPONSORS: Williams, Crowley, Miller, Salamanca

REBNY GENERALLY SUPPORTS Intro No 1445, however, the bill needs to reflect the practical realities of construction. Specifically, requiring vertical netting within shaftways is likely to disrupt work, and it would also complicate emergency exits from shaftways while creating new fall hazards when moved. REBNY does believe such netting would provide the same safety protections provided by the guardrail systems currently required by section 3308.7 of NYC Building Code. 

Similarly, the horizontal netting proposed for section 3308.6.1.1 would create a conflict with necessary access and egress to the floors and working deck above the last level of completed stairs. REBNY recommends creating a new section applying to all sites in lieu of the proposed changes to existing code. This would enable focusing the new protections on large openings not in use through the use of an additional definition for “floor openings.”

 

INTRO NO: 1448 

SUMMARY: Require buildings more than four stories in height to file site safety plans with the Department of Buildings and to enact and maintain a site safety monitoring program to implement such site safety plans. 

SPONSORS: Williams, Torres, Crowley, Salamanca

REBNY GENERALLY SUPPORTS Intro No 1448 and appreciates the Council’s recognition that projects below ten stories are more likely to have unsafe site conditions that contribute to fatalities. However, Intro No 1448 will meaningfully constrain DOB’s staff and resources given the large number of new plan submissions from affected projects. Given the shortage of licensed site safety personnel able to implement site safety plans, this proposal could also cause delays across a great number of projects throughout the city. More time is needed to evaluate the impact of the DOB’s new construction superintendent rules, which took effect on May 30, 2016, before increasing the personnel requirements. 

Intro No 1448 should be amended so that projects below ten stories would be required to create site safety plans to be implemented by a Competent Person for Site Safety as approved by the construction superintendent.[11] This change would mirror DOB’s 2015 rules regarding façade project site safety plans. Increasing DOB’s full-time staff would also be necessary before DOB could approve these new plans. In the interim, the requirement could call for plans to be kept on site for random inspection. 

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CRANE SAFETY

INTRO NO: 443

SUMMARY: Imposes age limitations on cranes used in New York City. Cranes younger than 25 years would be operational effective 10/1/14, excluding: a) instances where crane is already in use or permits have already been filed by effective date; b) projects with cranes younger than 25 years at the time of DoB inspection and not exceeding 28 years; c) DoB Commissioner approval for cranes under 30 years old. Each crane shall be equipped with a load cycle counter by 7/1/15.

SPONSORS: Kallos, Rose, Constantinides

REBNY TAKES NO POSITION.

 

INTRO NO: 1403

SUMMARY: Requires anemometers to be installed on the boom of cranes to be operational.

SPONSORS: Williams, Chin

REBNY GENERALLY SUPPORTS Intro No 1403 and believes that the installation of anemometers will institute the use of local wind measurements rather than relying on remote readings. However, REBNY believes that the bill should be amended to 1) specify the placement of the anemometer to the highest floor of crane operations; and 2) to measure sustained wind speed over a specified duration of time rather than 3-second wind gusts. 

 

INTRO NO: 1421

SUMMARY: Requires all crawler cranes to be equipped with GPS devices or similarly approved devices by DOB to be operational.

SPONSORS: Chin, Crowley

 

INTRO NO: 1435

SUMMARY: Require all crawler cranes to be equipped with data logging devices capable of tracking crane configuration, radius of the load, status of limit switches and operator overrides, and be able to track the name and license of individuals operating the crane.

SPONSORS: Maisel, Crowley

REBNY OPPOSES 1421 and 1435 because the technology is not readily available. Moreover, REBNY raises concerns over privacy concerns, specifically, how will the collected information be used, accessed and stored.

 

INTRO NO: 1422

SUMMARY: Requires that cranes which require actions to be taken at 20 MPH wind speeds or less to operate within a safety zone; requires that cranes which require actions to be taken between 20 MPH and 30 MPH to operate within a safety zone, and to submit a plan for monitoring and securing the crane is submitted to DOB, FDNY and DOT; and requires orientation for assembly/disassembly directors, lift directors and hoisting machine operators

SPONSORS: Chin, Crowley (in conjunction with the Mayor)

REBNY OPPOSES Intro No 1422. While REBNY appreciates the challenges that certain wind events can impose upon construction safety, the various crane manufacturers take these situations into account in designing the machinery and tabulating the load charts. REBNY believes that manufacturers’ specifications should be referenced and adhered to during wind events. The implementation of a safety zone is impractical and will only restrict construction activity, lengthening project completion. Further, REBNY raises the question of simulator availability in New York City. 

 

INTRO NO: 1431

SUMMARY: Requires registration of lift directors of cranes where on-site inspection or licensed master rigger is required, and specifies qualifications and duties of role.

SPONSORS: Grodenchik, Crowley (in conjunction with the Mayor)

REBNY GENERALLY SUPPORTS Intro No 1431; however, the specific duties of the lift director should adhere to ANSI standards. Furthermore, the bill needs to more specific as to the chain of command for crane operations decisions which presently contradict OSHA standards and to whom the lift director will be reporting. 

 

INTRO NO: 1446

SUMMARY: Requires a licensing endorsement for class B hoisting machine operators operating cranes with a long boom or jib. Class B1 and B2 applicants must demonstrate competency. In addition, class B1 applicants should have 2 years of experience under a class B licensed hoisting machine operator. Class B2 applicants shall have a class B1 license and demonstrate the ability to operate cranes with complex booms.

SPONSORS: Williams, Crowley, Miller

REBNY TAKES NO POSITION. However, the bill aims to create a sub-classification for operators of larger, more complex cranes. REBNY reiterates its long-standing position that in order to recruit and retain the most qualified operators, the applicant pool must be expanded to include operators with out-of-city experience. This was codified in Section 104-09 of Title 1 of the Rules of the City of New York but hastily abandoned when the City of New York appealed a 2015 New York County Supreme Court (Wooten, J.) decision to invalidate licensing regulations that would have allowed certain applicants to receive credit for work experience gained in other large cities. Even though the City of New York ostensibly did not agree with the Court’s decision, the City declined to appeal that part of the decision but proceed to appeal other components of the decision.[12] If the Council is intent on insuring that the most qualified operators are available for larger, more complex cranes, it should advocate for reinstatement of the prior rule.

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CIVIL PENALTIES

INTRO NO: 1404

SUMMARY: Increases fines for immediate hazardous and site safety provisions of the building and administrative codes up to $25,000 for immediately hazardous, and up to $15,000 for major violations.

SPONSORS: Williams, Richards, Chin (by request of the Manhattan Borough President)

 

INTRO NO: 1419

SUMMARY: Increases the fines for building code violations of chapter 33 of the Building Code that result in a serious physical injury and/or fatality. Fines range from $500 for lesser violations up to $25,000 for immediately hazardous violations. Fines for violations resulting in serious physical injury or death range from $500,000 up to $1,500,000. Exceptions to the bill include building code violations as a result of natural or man-made disasters or work done by a city employee or city-contracted work if violations are corrected within 60 days.

SPONSORS: Mark-Viverito, Crowley, Salamanca

REBNY GENERALLY SUPPORTS Intro Nos 1404 and 1419 as increased civil penalties are effective means to discourage bad behavior. The bill’s imposition of fines for serious physical injury and death do not include any provision for relief if said injury or death are the results of a worker’s negligence. Although regulatory and punitive fines are generally not covered by insurance, fines, along with other market factors, have an impact upon insurance premium rate-setting. Insurance carriers have already exited the New York City market due to strict liability laws such as the Scaffold Law.

[13] At present, there are only a few insurance carriers willing to service the New York City construction market. These factors have led to rising insurance premiums that make up towards 10 to 12 percent of the entire construction budget.

[14] REBNY urges to the Council to meet with insurance carriers to determine an appropriate increase amount to encourage safer practices that will not unnecessarily raise premiums. 

 

INTRO NO: 1437

SUMMARY: Increases fines for construction sites in excess of the violation ratio (number of immediately hazardous violations and major violations for the past 12 months divided the site’s square footage). Applicable to sites where violation ratio exceeds at least 90% of construction site violation ratios.

SPONSORS: Menchaca, Crowley, Salamanca

REBNY OPPOSES Intro No 1437. Using a strict ratio standard will include many violations that are being challenged and/or litigated that could unfairly skew the site toward heavier penalties. If the bill’s intention is to target specific bad actors and to shut down problematic sites, existing law and regulations allow DOB to do such. 

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REPORTING REQUIREMENTS

REBNY is generally supportive of reporting that reinforces and implements safety training, but not of reporting that imposes additional demands upon city and federal agencies. If additional reporting is required, REBNY asks that 1) DOB is appropriately resourced to carry out such functions, and 2) the additional data is meaningful and can be used toward implementing change.

 

INTRO NO: 81

SUMMARY: Requires DoB to notify OSHA of any violations of the building code the Commissioner believes potentially endangers workers; and to submit an annual report to the Mayor and the City Council Speaker on the nature and number of these violations.

SPONSORS: Lancman, Koo, Rosenthal

REBNY GENERALLY SUPPORTS Intro No 81. This bill would broaden the responsibility of DOB to report on any violations it believes may “potentially” result in workplace injury and danger. The ambiguity of the term “potentially” is especially problematic because it may result in the reporting of minor workplace violations. 

 

INTRO NO: 1442

SUMMARY: Establishes a tiered system for enforcement of safety registration numbers based on performance of contractors required to hold safety registration numbers.

SPONSORS: Rosenthal, Crowley, Salamanca

REBNY OPPOSES Intro No 1442. While this bill attempts to promote workplace safety by classifying “good” and “bad” contractors, REBNY believes that the individual worker’s professional responsibility and adherence to supervisor instruction and generally-accepted safety protocols must also be considered. As such, Intro No 1442 may unfairly place safety registration holders who make the best efforts to provide and implement workplace safety at risk for harsh penalties and potential revocation of their registration privileges when the violation or hazardous condition could be attributed to the worker. Furthermore, the bill does not prevent a contractor whose safety registration has been revoked from establishing another company under a different name, a practice commonly known as “shirt-changing.” And finally, Intro No 1442 would also disproportionately impact larger contractors who do more projects and are thereby, subject to receiving more violations. 

 

INTRO NO: 1433

SUMMARY: Requires DoB to report and document on all construction related accidents that result in an injury or fatality to the public or a construction worker.

SPONSORS: Kallos, Rosenthal, Levine, Torres, Crowley, Miller, Salamanca, Barron, Gentile

REBNY GENERALLY SUPPORTS Intro No 1433. Currently, the DoB is required to report on construction related accidents that result in an injury to the public. While REBNY supports the Council’s effort to improve reporting of workplace injuries and fatalities, this bill will significantly expand DoB’s current reporting jurisdiction into areas that will require the site’s construction or general manager cooperation. Moreover, some of the data requested have questionable value toward promoting safety. For example, the bill calls for “whether or not the injured or deceased worker was a union member.” Rather, REBNY recommends including data points that would help safety research efforts such as what DOB permit(s) are associated with the site; total square footage of the site; and an analysis of worker responsibility to the accident, if applicable.

 

INTRO NO: 1436

SUMMARY: Would require DoB to report on the number of site safety managers and coordinators in addition to other statistics to the city council and post it to their website annually.

SPONSORS: Kallos, Rosenthal, Levine, Torres, Crowley, Miller, Salamanca, Barron, Gentile

REBNY GENERALLY SUPPORTS Intro No 1436. The availability of site safety professionals is essential to construction projects. Posting such information on a website might help the construction community to understand the general market landscape but such information can also be collected through the Mayor’s Management Report. It should also be noted that DOB has made great strides toward reviewing and approving site safety professional licenses, and that some of the factors toward license approval are outside of DOB’s control. Finally, as with any new mandate, DOB must be afforded the resources to competently implement the new responsibilities.

 

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[1] Real Estate Board of New York, Construction Safety Report. 2016. New York: Real Estate Board of New York. Retrieved January 30, 2017 from https://www.rebny.com/content/dam/rebny/Documents/PDF/News/Research/Policy%20Reports/2010-2015_Construction_Analysis_Safety_Steps.pdf

[2] Ibid.

[3] See, Article 23 of New York State Consolidated Laws, Section 810 et seq.; Part 601 of the New York Codes, Rules and Regulations.

[4] Fifty-nine percent of the 88 building construction trade apprenticeship programs are sponsored by unions or union affiliates, and nearly nine out of ten apprenticeship programs in the high-risk construction trades are sponsored by unions or union affiliates. (Sources: NYSDOL, Northeastern Subcontractors Association, and National Labor Relations Board)

[5] See, Part 601.8 of the New York Codes, Rules and Regulations – Program Probation, Monitoring, Re-Certification & Performance

[6] Swarns, Rachel. (2015, December 20). New York Sheet Metal Workers Case Highlight Persistence of Workplace Discrimination. The New York Times. Retrieved January 30, 2017 from https://www.nytimes.com/2015/12/21/nyregion/minority-sheet-metal-workers-in-new-york-start-getting-back-pay-after-decades-of-bias.html

[7] Durkin, Erin. (2017, January 24). NYCHA Tenants Oppose Apprentice Plan for Construction Workers. New York Daily News. Retrieved January 27, 2017 from http://www.nydailynews.com/new-york/nycha-tenants-oppose-apprentice-plan-construction-workers-article-1.2953990

[8] See, Vitullo-Martin, Julia and Cohen, Hope. Construction Labor Costs in New York City - A Moment of Opportunity. New York: Regional Plan Association. 2011. Retrieved January 30, 2017 from http://library.rpa.org/pdf/RPA-CUI-Construction-Costs.pdf

[9] Brenzel, Kathryn. (2016, March 1). Are Unions Losing Their Grip in NYC?? The Real Deal. Retrieved January 30, 2017 from https://therealdeal.com/issues_articles/are-unions-losing-their-grip-in-nyc/

[10] See, Section 3301-02 (c) (10) of Title 1 of the Rules of the City of New York

[11] Ibid.

[12] Brief of Appellant at 2, Edward L. Christian v City of New York, No. 102788/12 (1st Dept., February 22, 2016).

[13] Cavanaugh, Bonnie. (2013, May 10). N.Y. Labor Law for Construction Doubling Rates, Scaring Away Carriers, Property Casualty360, Retrieved January 27, 2017 from http://www.propertycasualty360.com/2013/05/10/ny-labor-law-for-construction-doubling-rates-scari

[14] Ibid.