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labor law prevailing wage requirement does not apply to construction work for a volunteer fire department which is a not-for-profit corporation.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissent, determined that the prevailing wage requirement of Labor Law 220 did not apply to construction work for the Bath Volunteer Fire Department (BVFD) which had procured its own funding for a new firehouse:

After an investigation, the Department of Labor (DOL) issued an opinion letter, concluding that the firehouse project was a public work subject to the prevailing wage law. Once the subcontractors learned of the DOL’s determination, work on the project halted. In December 2006, BVFD agreed to indemnify [the contractor] and its subcontractors against any liability resulting from their failure to pay the prevailing wages, and construction resumed and the project was completed. …

The prevailing wage law covers contracts involving each of four specific public entities: the state, a public benefit corporation, a municipal corporation or a commission appointed pursuant to law (see Labor Law § 220 [2]). It is undisputed that BVFD is a fire corporation as defined by the Not-For-Profit Corporation Law, and it is not one of the public entities named in the statute. Nevertheless, the Commissioner determined that BVFD could be deemed “the functional equivalent” of a “municipal department” within the meaning of the Labor Law. …

The “functional equivalent” test, however, was rejected by this Court in Matter of New York Charter School Assn. v Smith (15 NY3d 403 [2010]). There, the DOL deemed charter schools “public benefit corporations” because the schools serve a valuable public purpose and their existence is the result of a charter issued by a state or local municipal entity. Given those factors, the DOL determined that charter schools met the requirements established by the courts of this State for public work projects. We rejected that argument because while charter schools, like volunteer fire corporations, may be “quasi-public” in nature, they are not a specified public entity and thus, do not fit within the ambit of the statute (id. at 410).

Had the legislature intended to include volunteer fire corporations under the statute, it could easily have done so. Notably, in 2007, the legislature expanded the statute’s coverage to include contracts involving other types of entities, but only when it can be shown they were acting on behalf of the public entity … . Matter of M.G.M. Insulation, Inc. v Gardner, 2013 NY Slip Op 01017 [20 NY3d 469], CtApp 2-19-13

 

 

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