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Attorney Was an “Employee,” Not an Independent Contractor, for Puposes of the State and Local Employees’ Retirement System

The Third Department reversed the Comptroller’s ruling that petitioner, an attorney, was not an employee of the school district for purposes of benefits provided by the New York State and Local Employees’ Retirement System:

…”[W]here professional services are involved, the absence of direct control is not dispositive of the existence of an employer-employee relationship” … . “Rather, such an employment relationship may be evidenced by control over important aspects of the services performed other than results or means” … . In other words, “over-all control is sufficient to establish the employee relationship where [professional] work is concerned” … . Upon our review, we fail to find substantial evidence to support the Comptroller’s determination that petitioner was an independent contractor and not an employee of the school district.Here, the school district’s former superintendent, who worked with petitioner for nearly four decades, testified that during his tenure he supervised all staff at the school district, including petitioner. Matter of Brothman v DiNapoli, 517032, 3rd Dept 2-20-14

 

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Plaintiff Raised a Question of Fact About Whether Her Employment Was Terminated in Retaliation for Protected Activity

The Fourth Department concluded plaintiff had raised a question of fact about whether the termination of her employment with the county was in retaliation for protected activity. The wife of plaintiff’s boss was a special education teacher working with plaintiff’s son. Shortly after complaining to the school district about the special education plaintiff’s son was receiving, plaintiff’s job was eliminated. The Fourth Department summarized the applicable law as follows:

In order to make out a claim for unlawful retaliation under state or federal law, a plaintiff must show that “(1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action” … .In order to establish entitlement to summary judgment in a retaliation case, a defendant may “demonstrate that the plaintiff cannot make out a prima facie claim of retaliation” or, alternatively, a defendant may “offer legitimate, nonretaliatory reasons for the challenged actions,” and show that there are “no triable issue[s] of fact . . . whether the . . . [reasons are] pretextual”… . * * *With respect to the element of a causal connection, we note that such element “may be established either ‘indirectly by showing that the protected activity was followed closely by [retaliatory] treatment, . . . or directly through evidence of retaliatory animus directed against a plaintiff by the defendant’ ”… . Calhoun v County of Herkimer, 1303, 4th Dept 2-14-14

 

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Employer Which Hired Undocumented Workers Who Were Injured On the Job Protected from Suit by the Workers’ Compensation Law

In a full-fledged opinion by Judge Smith, the Court of Appeals determined the employer [Microtech] was entitled to the protection of the Workers’ Compensation Law and a suit against the employer by the hospital (which paid out Labor Law claims to the injured workers) was properly dismissed. The employer had hired undocumented workers [the Lemas] who were injured doing demolition work at the hospital. The workers were paid Workers’ Compensation benefits by the employer. The workers sued the hospital under the Labor Law and were awarded a verdict. The hospital then sued the employer which, the Court of Appeals held, was protected from suit by section 11 of the Workers’ Compensation Law:[Quoting the appellate division, the Court of Appeals wrote:]

…[T]o rule in the hospital's favor would “effectively deny [Microtech] the economic protections it acquired under the Workers' Compensation Law in return for providing [the Lemas] with compensation for their injuries,” as well as “relieve [the hospital] of its responsibility to ensure a safe construction site for workers under the Labor Law”… . New York Hospital Medical Center of Queens v Microtech Contracting Corp, 1, CtApp 2-13-14

 

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Labor Law Suit for Gratuities Not Preempted by Labor Management Relations Act or Prohibited by Collective Bargaining Agreement

In a full-fledged opinion by Justice Renwick, the First Department determined the plaintiffs, food and beverages servers at Madison Square Garden, had stated a cause of action against the defendant Garden under Labor Law 196-d. The plaintiffs alleged the Garden was not distributing to the plaintiffs all the “service charges” paid by customers who were led to believe the “service charges” were gratuities for the servers. The First Department rejected the Garden’s argument that the claims were preempted by federal law (Labor Management Relations Act [LMRA]) and, alternatively, subject to mandatory arbitration under the collective bargaining agreement [CBA].

Section 301 of the LMRA provides that “[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce … may be brought in any district court of the United States having jurisdiction of the parties” (29 USC § 185[a]. The Supreme Court has interpreted this section to preempt state law claims “founded directly on rights created by collective bargaining agreements” as well as “claims substantially dependent on an analysis of a collective bargaining agreement'”… . * * *

Section 301 [of the LMRA] … does not preempt state claims when state law confers an independent statutory right to bring a claim … .Even if resolution of a state-law claim “involves attention to the same factual considerations as the contractual determination … such parallelism [does not mandate preemption]” … .

A defendant’s reliance on the CBA is not enough to “inject—a federal question into an action that asserts what is plainly a state-law claim”… . * * *

A CBA cannot preclude a lawsuit concerning individual statutory rights unless the arbitration clause in the agreement is “clear and unmistakable” that the parties intended to arbitrate such individual claims … . “A clear and unmistakable’ waiver exists where one of two requirements is met: (1) if the arbitration clause contains an explicit provision whereby an employee specifically agrees to submit all causes of action arising out of his employment to arbitration; or (2) where the arbitration clause specifically references or incorporates a statute into the agreement to arbitrate disputes” … . “Arbitration clauses that cover any dispute concerning the interpretation, application, or claimed violation of a specific term or provision’ of the collective bargaining agreement do not contain the requisite clear and unmistakable’ waiver because the degree of generality [in the arbitration provision] falls far short of a specific agreement to submit all federal claims to arbitration'”… . Tamburino v Madison Sq Garden LP, 2014 NY Slip Op 0895, 1st Dept 2-11-14

 

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Florida Choice of Law Provision Re: Covenants Not to Compete Unenforceable in New York/the Nonsolicitation Covenant at Issue Was Overbroad and Unenforceable

In a full-fledged opinion by Justice Whalen, the Fourth Department determined that Florida law re: covenants not to compete was “truly obnoxious” to New York law and the nonsolicitation covenant at issue was overbroad and unenforceable:

…[W]e conclude that Florida law prohibiting courts from considering the hardship imposed on the person against whom enforcement is sought is “ ‘truly obnoxious’ ” to New York public policy …, inasmuch as under New York law, a restrictive covenant that imposes an undue hardship on the employee is invalid and unenforceable for that reason ‘’’ .  Furthermore, while New York judicially disfavors such restrictive covenants, and New York courts will carefully scrutinize such agreements and enforce them “only to the extent that they are reasonably necessary to protect the legitimate interests of the employer and not unduly harsh or burdensome to the one restrained”…, Florida law requires courts to construe such restrictive covenants in favor of the party seeking to protect its legitimate business interests (see Florida Statutes § 542.335 [1] [h]). * * *

A non-solicitation covenant is overbroad and therefore unenforceable “if it seeks to bar the employee from soliciting or providing services to clients with whom the employee never acquired a relationship through his or her employment” … .  Here, the non-solicitation covenant purported to restrict [defendant] from, inter alia, soliciting, diverting, servicing, or accepting, either directly or indirectly, “any insurance or bond business of any kind or character from any person, firm, corporation, or other entity that is a customer or account of the New York offices of the Company during the term of [the] Agreement” for two years following the termination of Johnson’s employment, without regard to whether defendant acquired a relationship with those clients. We conclude that the language of the non-solicitation covenant renders it overbroad and unenforceable … . Brown and Brown Inc… v Johnson…, 1109, 4th Dept 2-7-14

 

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Medical Corporation Not Responsible for Unauthorized Disclosure of Medical Information by Employee Acting Outside the Scope of Employment

In a full-fledged opinion by Judge Pigott, over a dissent, the Court of Appeals answered a certified question from the Second Circuit in the negative.  The question was: “Whether, under New York law, the common law right of action for breach of the fiduciary duty of confidentiality for the unauthorized disclosure of medical information may run directly against medical corporations, even when the employee responsible for the breach is not a physician and acts outside the scope of her employment?”:

… [A] medical corporation's duty of safekeeping a patient's confidential medical information is limited to those risks that are reasonably foreseeable and to actions within the scope of employment.  Doe v Guthrie Clinic Ltd, 224, CtApp 1-9-14

 

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Crude Conduct Not Motivated by Petitioners’ Gender/Case of Same Sex Discrimination Not Made Out

The Third Department determined a case of “same sex” sex discrimination had not been made out.  The petitioners (Bargy and Colon) are male.  The conduct complained of related to the supervisor’s (Andross’) bringing a woman to the hotel room in which all three men were staying during a construction project and having sex with her.  After a dispute between the petitioners and the woman, the supervisor fired them:

Here, neither the written complaints nor testimony of Bargy or Colon set forth any allegations or indication of how Andross’ conduct was motivated by their gender or that their grievances to petitioner were ignored because of their gender.  The ALJ’s decision does not refer to any proof supporting a finding that complainants’ gender was relevant to, or a reason for, the conduct.  Of the recognized paths for showing same-sex discrimination, the only one even arguably applicable is harassment based on gender-stereotyping.  However, the ALJ made no such finding.  … We fully agree that Andross’ conduct was crude, coarse and grossly unprofessional; nevertheless, in the absence of proof of gender-based discrimination, such conduct does not establish a claim.  We are constrained by the record to conclude that there is not substantial evidence that the conduct was caused by or related in any relevant fashion to complainants’ gender … . Matter of Arcuri v Kirkland…, 516735, 3rd Dept 1-9-14

 

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Court Does Not Have the Power to Determine Whether Arbitrator Misinterpreted Collective Bargaining Agreement/Court Can Not Review Merits of Arbitrator’s Determination

The Second Department determined Supreme Court should not have vacated the arbitrator’s award because the award was not “irrational:”

“[J]udicial review of arbitration awards is extremely limited” … . In determining any matter arising under CPLR article 75, “the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute” (CPLR 7501). Accordingly, it is ” not for the courts to interpret the substantive conditions of [a] contract or to [otherwise] determine the merits'” … . “An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached'” … .

The Court of Appeals has recognized “three narrow grounds that may form the basis for vacating an arbitrator’s award—that it violates public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power”… . As relevant here, an arbitrator exceeds his or her power if the award “g[ives] a completely irrational construction to the provisions in dispute and, in effect, ma[kes] a new contract for the parties” …

The petitioner’s contention that the arbitrator misinterpreted the terms of the collective bargaining agreement constitutes a challenge to the merits of the arbitrator’s determination … . Since the arbitrator’s determination was not “completely irrational” … , the petitioner’s challenge to the merits of the arbitrator’s determination does not provide a ground for vacating that determination… . Matter of Sheriff Officers Assn Inc v Nassau County, 2014 NY Slip Op 00108, 2nd Dept 1-8-14

 

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Administrative Decision Maker, Who Had Previously Ruled Against Petitioner/Employee in Disciplinary Proceedings, Should Have Been Disqualified from Reviewing Hearing Officer’s Recommendations Made in a Related Subsequent Proceeding

The Third Department, over a partial dissent, determined the mayor (Bertoni), who ruled against the petitioner/employee on disciplinary charges, should have been disqualified from reviewing the hearing officer’s recommendations made in a subsequent PERB hearing.  After noting petitioner could properly be punished for testifying falsely in the hearings, the Third Department explained:

Reversal is required … because Bertoni should have been disqualified from reviewing the Hearing Officer’s recommendations.  To be sure, an administrative decision maker is not deemed biased or disqualified merely on the basis that he or she reviewed a previous administrative determination and ruled against the same employee, or presided over a prior proceeding involving a similar defense or similar charges … .  However, where, as here, there is evidence indicating that the administrative decision maker may have prejudged the matter at issue, disqualification is required… . Botsford v Bertoni, 516709, 3rd Dept 12-26-13

 

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Police Officer’s Actions In a Private Dispute Could Not Be Invoked Against Municipality Under Doctrine of Respondeat Superior

The Third Department determined that the doctrine of respondeat superior could not be invoked against a municipality for the actions of an off-duty police officer, even where the officer characterized his actions as an arrest.  Here the police officer injured the plaintiff in a private dispute that had nothing to do with the officer’s official duties:

“The doctrine of respondeat superior renders an employer vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment” … .  Thus, “where an employee’s actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment” … .  Notably, and as is relevant to the matter before us, “[a] municipality cannot be held vicariously liable for acts perpetrated by a member of its police force in the course of engaging in a personal dispute, without any genuine official purpose, whether or not the police officer characterizes such conduct as an arrest or incident to an arrest” … . Stevens v Kellar, 516875, 3rd Dept 12-19-13

 

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