John Faso was first elected to the New York State Assembly in 1987 and went on to serve as Minority Leader for four years. In 2002 he was the Republican nominee for State Comptroller, and in 2006 he was his party’s nominee for Governor. Though in both campaigns he was unsuccessful, in 2017 he made a triumphant return to elected office, winning a Congressional seat in the Hudson Valley. During his one term in office, he was ranked one of the most bipartisan members of Congress, taking on issues such as climate change, the opioid crisis, and immigration reform. In both the State Legislature and Congress, he was a leader in trying to reform New York’s Scaffold Law, a fight he continues to today.
BTEA: Tell us about what you’ve been doing since you left Congress.
Faso: Well, I’ve been doing consulting and I’m doing some federal lobbying. I’m also still involved in public policy, I participate in a public radio roundtable in Albany at least once a month, and I write occasional articles.
BTEA: Talk about your experience in the Assembly and then in Congress trying to bring about Scaffold Law reform.
Faso: Ever since I was elected to the State Assembly, where I served proudly for 16 years, I have taken an interest in reforming the Scaffold Law. It’s one of those man-made problems that lingers, it stays there, it doesn’t change. The political forces and the special interest efforts of the trial lawyers have kept it alive in Albany, despite the fact that 49 other states and the District of Columbia have shifted away from it. The last state that changed from a strict liability situation was Illinois in 1995. Successive efforts to bring it back have all failed, even though the Illinois legislature is strongly under control of the Democrats in both their houses, and it fails because they’ve come to realize it’s a needless, added cost. In New York’s case, it’s in essence taking hundreds of millions of dollars out into the street and burning it. The law doesn’t add anything. It doesn’t improve safety for workers. And it’s now brought about two very undesirable results in addition to the cost increase: we’ve seen a limited number of insurers that are willing to insure contractors in the state and big projects. And the second thing is we’ve seen a rash of staged fake construction accidents that are occurring only because we have this strict liability statute.
No one is talking about taking away the right of an injured worker to sue. We’re just saying that the standard of liability to judge the responsibility for the accident should be comparative negligence, not strict liability. Every other court in New York State, every other claim for damages, is considered based upon contributory negligence, not strict liability. It’s only this very narrow segment of legal cases in which this standard of strict liability is utilized and that has very negative consequences for everyone; contractors, owners, workers, and more importantly, the people of the state, we’re paying too much. Affordable housing, subways, roads, bridges, critical infrastructure, we’re wasting millions in taxpayer dollars unnecessarily on these projects because of the Scaffold Law. It is affecting everything. It affects the New York City Housing Authority, making renovations at NYCHA more expensive. It affects historic preservation projects. It’s a very costly burden that the people are having to bear and the vast majority of people in our state don’t know about it.
BTEA: Can you explain what the legislation that you’re currently advocating for in Congress would do?
Faso: The legislation is really very simple. It would say that if there’s an injury accident on a construction project in New York that is funded in whole or in part with federal funds that the venue for any court action on that accident claim would be federal court, not state court, and the federal court would be guided by principles of contributory negligence and not absolute or strict liability. That’s really the crux of how we would solve the Scaffold Law problem.
BTEA: You had the opportunity to try to change the law from the inside, both as Minority Leader of the Assembly and as a member of Congress. Why were your efforts unsuccessful when you were in office?
Faso: In Albany, it clearly was because the Speaker of the Assembly for most of the time I was there was Shelley Silver, who was himself a trial lawyer, and he was never going to give in on this issue. That was the biggest obstacle. We also didn’t have back then all these staged construction accidents occurring, that’s a relatively new phenomenon.
As for Congress, when I introduced this bill in 2017 I got it through the House Judiciary Committee, but it was difficult to get it to move beyond that because it only affected New York State and at the time there wasn’t any must-pass piece of legislation that I could attach it to. The situation is different now because the Surface Transportation bill is starting to be worked on now. It has to pass in 2026 and this will be a bipartisan bill. For all the talk about the polarization in Congress, there are some bills—and the highway and transportation bill is one of those—that has strong bipartisan support. It will pass in the House with over 350 votes. It’ll pass in the Senate with over 75 votes. Because so much of the Scaffold Law cost is in these transportation-related projects, we know that if we can’t pass a bill that affects all federal projects, there’s a version of the legislation we’re working on that could be attached to the transportation bill.
Ironically, the last time there was a preemption of a New York State statute in the highway bill was back in 2005, and it was sponsored by Congressman Sam Graves from Missouri. It preempted New York’s vicarious liability statute as it related to auto leasing. That statute meant that if you leased a car and you were in an accident, not just the lessee could be liable, but so was the lessor of the leasing company, even though the company had nothing to do with the accident. And yet New York law through vicarious liability held that company responsible. And you know what the result was? We had no market for auto leasing in New York State until that law was preempted by the Congress. And guess what? Sam Graves is now the chairman of the House Transportation and Infrastructure Committee, and he is well familiar with the problem of the Scaffold Law in New York State and what it means in terms of raising the cost of construction for transportation projects and also raising the cost for federal and state taxpayers.
So, I think we have a strong argument to include a version of this preemption in the transportation bill. Of course, I would like to see legislation that can preempt every federally funded project, whether the funding is for an affordable housing tax credit or an historic rehabilitation tax credit or a tech project—all of these projects are affected by the Scaffold Law. But to go back to your original question of why couldn’t we get this done in Albany, I think that if we got this federal preemption for transportation projects, even just that would force the governor and state legislature to change the law for everything else.
BTEA: Lastly, as you know, Scaffold law reform is very important to the BTEA’s members. What can BTEA members do to help pass the legislation that you’re advocating for in Congress?
Faso: The simple thing BTEA members can do is to lobby their federal representatives, their House members, Democrat and Republican, and talk to them about what this means to their businesses in dollars and cents, what it means to their employees, and how we could enhance build more New York if we reduce unnecessary costs for construction. And if we reduce unnecessary costs for construction, guess what? We create more construction jobs. The BTEA under Elizabeth Crowley’s leadership has been terrific in their support for this legislation, introduced by Representative Nick Langworthy, which is patterned, frankly, after the bill I introduced in 2017, though I think this bill is better than mine because it’s inclusive of more federal projects. In addition to talking to their representatives in Congress, BTEA members should talk to their union locals and explain to them if we get this enacted it will mean more union jobs. So, I think I think it’s a win-win for everyone regardless of where you are in New York State, and the time has come here in 2025 to repeal this vestige of a law that has been on the statute books in New York State since 1885. The time is now.