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Shields Disaster Contractors
Bill Bars Employee Suits Over Clean-Up
By
GINGER ADAMS OTIS
A group of Republican lawmakers has proposed legislation that would prohibit
employees from suing contractors hired by the Federal Government to clean up
after natural or man-made disasters.
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| BILL HENNING:
Bill bad for workers.
| | Introduced by
South Dakota Sen. John Thune and Pennsylvania Sen. Rick Santorum, the bill's
preamble says its primary goal is to "clarify the liability of government
contractors assisting in rescue, recovery, repair, and reconstruction work in
the Gulf Coast region."
No Recourse for Workers
The legislation seeks, among other things, to bar contract employees
from suing government contractors, eliminate financial pay-outs for emotional
suffering or non-physical damages, and prohibit courts and juries from granting
monetary awards for such injuries.
At the moment it pertains only to Katrina-related clean-up projects, but if
enacted into law, the bill's tenets could in the future be applied to any
disaster with projected recovery costs exceeding $15 billion.
Private-sector contract hires would be most affected by the proposed changes,
but according to Suzanne Mattei, a lawyer with the Sierra Club, the rights of
public-sector workers could also be curtailed.
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| JOEL SHUFRO:
'No reason for immunity.'
| | "Municipal
employees can't sue their employers for on-the-job injuries - they have Workers'
Compensation for that," she explained. "But, as we saw at Ground Zero, very
often private contractors work side by side with city agencies, or their work
intersects with that of city agencies. If a public employee is hurt at a job
site because of a private contractor's negligent conditions, this bill says that
worker can't sue the contractor - and that includes all sorts of things,
dangerous scaffolding, broken levees, even toxic emissions. A private contractor
could negligently manage toxic fumes, exposing public- and private-sector
workers on a job site, and none of them could sue."
The legislation has provoked outraged responses from many environmental and
public health advocacy groups, who see it as a sop to corporations looking to
evade liability laws.
'Camel's Nose in Tent'
"We have to be very careful; this is the camel's nose in the tent.
These corporations want to use tragedies in much the same way that forces have
used 9/11 that ultimately in the long run work to our detriment," said Bill
Henning, vice president of Communication Workers of America Local 1180. "People
fly the flag and say terrorism, and now they fly the flag and say natural
disaster and hurricane, and all bets are off - but their profits aren't off.
These aren't charitable organizations, they're going in to make money, and they
want indemnification if they harm someone. That's just plain wrong."
Local 1180, along with the United Steelworkers of America, the New York
Committee for Occupational Safety and Health, and several other concerned
groups, wrote a letter to the Senate Waste Management Subcommittee that held
hearings on the bill Nov. 8.
They charged that the bill would free Federal contractors from restrictions
under several environmental laws, including the Clean Air Act and Oil Pollution
Act.
'Hold Them Accountable'
"Federal contractors, who are paid by the taxpayers for the work
that they do, should be held fully accountable to the public if they behave
carelessly and cause harm to people or the environment," said Joel Shufro, the
Executive Director of NYCOSH, reading from the letter. "No public policy reason
justifies Congress granting Federal contractors legal immunity for negligence or
illegal activity. This is especially true for Federal contractors hired to
respond to natural disasters like Hurricanes Katrina, Rita, and Wilma, where
contractors' actions can either assist people - or imperil their health and
safety."
The Senate subcommittee also heard from several
contractors who are currently working with the Federal Government on clean-up
efforts in the Gulf Coast. One of them, Bovis Lend Lease, was hired to help with
the Ground Zero recovery effort in New York. It's one of the defendants in a
class-action lawsuit brought by workers injured there.
A spokeswoman at Bovis Headquarters declined to comment, saying the company
won't discuss matters related to pending litigation.
Lauds Contractors
But the Gulf Coast Recovery Act spells out in detail the concerns of the
corporate contractors.
'In the wake of a disaster, public officials have to depend on private
contractors for logistical and other support [...] historically, private
contractors have answered the call, providing valuable service to the public in
times of disaster," the bill states.
It goes on to say that the expertise and equipment private contractors
contributed to Sept. 11 "greatly enhanced" that response, and made it safer for
police, firefighters and other rescue workers to handle the disaster.
"It is in the national interest to have private contractors assist public
officials in times of natural disaster," the bill continues, before noting that
class-action lawsuits have been brought against the private contractors that
"supervised the heroic response" to the Sept. 11 terrorist attacks.
'Suits a Deterrent'
Those companies now have "well-founded fears of future litigation
and liability under existing law [that] discourage contractors from assisting in
times of disaster," the Act claims.
To insure the involvement of Federal contractors, the bill concludes, the
government should limit the legal expenses that "regrettably but inevitably"
inflate the recovery costs, and temporarily insulate private contractors from
any liability that private parties may seek to impose.
But Sen. Hillary Clinton, who testified at the subcommittee hearings, said
her experiences as an elected official in New York post-9/11 made her question
many of the bill's claims.
'No Reason for This'
"An August 2003 EPA Inspector General Report concluded that the
White House interfered with [U.S. Environmental Protection Agency]
communications about air pollution hazards in lower Manhattan. And it is
possible that the government's missteps contributed to the fact that proper
precautions were not taken as much as they should have been," she stated. "A
Centers for Disease Control study issued last September found that in the three
days after September 11, when exposure was greatest, only 21 percent of the
study's participants reported using respirators. There are lessons to be learned
from all this. But the lesson is not that we need to provide unprecedented and
sweeping liability waivers for contractors."
Senator Clinton called for the EPA and Occupational Safety and Health
Administration to do a better job advising contractors and workers about the
hazards they face. She suggested creating a system to track the health of
first-responders and recovery workers, and urged the passage of a bill
addressing the medical needs of workers who develop health problems but can't
get assistance through programs like Workers' Compensation.
"I am sympathetic to the challenges that contractors face in getting
liability insurance. That's something we went through in New York," she
concluded. "And to the extent that contractors cannot obtain the liability
insurance that they need to do the work, then Congress should consider stepping
in."
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