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Prevailing Wage Law Not Preempted by Federal Telecommunications Act or Labor Relations Act

In upholding the finding that petitioner had failed to pay the prevailing wage for work done for a school district, the Third Department determined the prevailing wage law was not preempted by the federal Telecommunications Act and the Labor Management Relations Act:

Generally, a federal law may supersede a state law where Congress explicitly declares preemption as its intent …, or where the federal law is “‘so pervasive as to make reasonable the inference that Congress left no room for the [s]tates to supplement it'” …. The Court of Appeals has observed, however, that “[t]he presumption against preemption is especially strong with regard to laws that affect the states’ historic police powers over occupational health  and safety issues” …. While the Telecommunications Act is intended to exclusively govern the field of telecommunications service (see 47 USC § 253 [a]), the prevailing wage law is a minimum labor standard … .As such, it falls within the Telecommunications Act’s safe harbor provision, which provides that  “[n]othing  in this section  shall affect the  ability of  a [s]tate to impose, on a competitively neutral basis . . . requirements necessary to . . . protect the public safety and welfare” (47 USC  §  253  [b]). … Nor is the prevailing wage law preempted by the federal Labor Management Relations Act. That statute provides that federal law governs suits to enforce collective bargaining agreements (see 29 USC § 185 [a]). While it is true that the Department  of Labor refers to collective bargaining agreements  to determine  prevailing wages,  those  agreements  are  not  necessarily determinative, and the rights conferred by the prevailing wage law  are independent of those conferred by  such  agreements … . Matter of Pascazi v Gardner, 513528, 3rd Dept, 5-2-13

 

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Transit Authority Employee Properly Found Negligent In Not Summoning Help for Police Officers Injured While Making an Arrest in a Subway Station

The First Department reinstated a verdict in favor of police officers who were injured in the course of making as arrest in a subway station. As the officer chased the suspect, he asked a New York City Transit Authority employee to call for police back up.  The theory of the case was that the employee negligently did not call for back up. The trial judge granted the Transit Authority’s motion for judgment finding the employee was under no duty to call for assistance.  In reversing, the First Department wrote:

Public Authorities Law § 1212(3) imposes liability upon the Transit Authority for the negligence of its employees in the operation of the subway system. Although it is a common carrier, the Transit Authority is held to a duty of ordinary care under the particular circumstances of each case …. In Crosland v New York City Tr. Auth. (68 NY2d 165 [1986]), the Court of Appeals held that the Transit Authority could be held liable for the negligent failure of its employees to summon aid as they watched a gang of thugs fatally assault a passenger. As the Court stated, “Watching someone being beaten from a vantage point offering both safety and the means to summon help without danger is within the narrow range of circumstances which could be found to be actionable” (id. at 170 [citation omitted]). The trial court held that Crosland had no application here because plaintiffs were police officers. This was error.

The broad definition of onlooker liability articulated by the Crosland Court does not lend itself to any exception based upon an injured party’s status as a police officer. To be sure, General Obligations Law § 11-106 gives police officers as well as firefighters, who are injured in the line of duty, a distinct right of action against tortfeasors that cause such injuries. Accordingly, plaintiffs’ recovery is not barred by their status as police officers and the Transit Authority’s liability was established at trial. The Transit Authority also argues that the evidence did not establish that a timely response on Corbin’s part would have prevented plaintiffs’ injuries. We decline to consider this argument as it was raised for the first time on appeal. Were we to consider the argument, we would find it unavailing. Filippo v New York City Tr Auth, 2013 NY Slip Op 03025, 1st Dept, 4-30-13

 

 

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Dismissal as Time-Barred Is a Dismissal On the Merits for Purposes of Res Judicata

In an article 78 action challenging the prohibition (by the Buffalo Fiscal Stability Authority) of the implementation of a wage increase pursuant to a collective bargaining agreement, the Fourth Department noted that the dismissal of an action as time-barred is a determination on the merits for res judicata purposes:  “It is well established that a dismissal of a proceeding as time-barred “ ‘is equivalent to a determination on the merits for res judicata purposes’”… . Matter of Buffalo Professional Firefighters Association, Inc…, CA 12-02126, 371, 4th Dept, 4-26-13

 

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Criteria for Appellate Review of Arbitrator’s Award 

The Fourth Department explained the criteria for review of an arbitrator’s award (which involved the writing of a collective bargaining agreement) as follows:

Respondents failed to meet their “heavy burden of demonstrating that the arbitrator[s’] award is . . . totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” … . Where, as here, the role of the arbitration panel is to “write collective bargaining agreements for the parties . . . , [i]t follows that such awards, on judicial review, are to be measured according to whether they are rational or arbitrary and capricious” … . “[I]t need only appear from the decision of the arbitrators that the criteria specified in the statute[, i.e., the Taylor Law,] were ‘considered’ in good faith and that the resulting award has a ‘plausible basis’ ” … . We conclude that the decision of the arbitrators meets that standard here.  Matter of Arbitration …, CA 12-02127, 377, 4th Dept, 4-26-13

 

 

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NYC Department of Education Must Defend Employees Sued for Alleged Use of Corporal Punishment

The Court of Appeals, in a full-fledged opinion by Judge Smith, held that “employees of the [NYC] Department of Education who are sued for using corporal punishment are entitled to a defense provided by the City, even though the employees’ conduct violated a State regulation.”  Judge Smith wrote:

…[W]e conclude that the authors of Education Law § 3028 intended to provide a defense even where an employee’s use of corporal punishment violated regulations. Section 3028 requires the City to provide an attorney not just in civil, but also in criminal cases — suggesting that the Legislature wanted even employees who engaged in highly questionable conduct to be defended at public expense.  Matter of Deborah Sagal-Cotler v Board of Education … Nos 73 & 74, CtApp, 4-25-13

 

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Contractual Shortened Statute of Limitations Okay

The Second Department held that a shortened statute of limitations agreed to in an employment contract was enforceable:

“The parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations” (…see CPLR 201…). “ Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced” … . Hunt v Raymour & Flanigan, 2013 NY Slip Op 02715, 2nd Dept, 4-24-13

 

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Defendant Was Not Plaintiff’s “Special Employer”

In finding defendant was not plaintiff’s (Vasquez’) “special employer” (and therefore could not take advantage of the exclusive-remedy provision of the Workers’ Compensation Law), the First Department wrote:

Defendant’s motion for summary judgment, made on the ground that the complaint is barred by the exclusivity provision of the Workers’ Compensation Law (see Workers’ Compensation Law § § 11, 29[6] …, was properly denied. Defendant maintains that it was Vasquez’s special employer because it hired all building employees, including Vasquez, and was also responsible for firing. However, plaintiff asserts the evidence establishes that defendant was not Vasquez’s special employer. Specifically, the property owner, not defendant, paid and provided benefits to Vasquez. Defendant’s evidence failed to establish as a matter of law that it “control[led] and direct[ed] the manner, details and ultimate result of” Vasquez’s work …, and plaintiff acknowledges questions of fact exist on this issue. If the issue of defendant’s status as a special employer is resolved in plaintiff’s favor, plaintiff is entitled to partial summary judgment on liability on her Labor Law § 240(1) claim. Vasquez v Cohen Bros Realty Corp, 2013 NY Slip Op 02682, 1st Dept, 4-23-13​

 

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Employee-Status Proven and Workers’ Compensation Exclusivity Provision Applied; Employee’s Jumping from Stalled Elevator Was Superseding Cause of Accident

The First Department determined the respondent, Plaza Residences, could assert the Workers’ Compensation defense even though petitioner believed he was working for a nonparty (Wavecrest Management, Inc) which directed and controlled his work:

The Workers’ Compensation exclusivity provision applies to those employers, and their agents, that exercise supervision and control over an employee …. Here, the evidence establishes that an actual employment relationship exited between plaintiff and Plaza Residences. Such evidence includes Plaza Residences’ payroll records, state withholding tax and unemployment returns, plaintiff’s own W-2 form, and copies of cancelled paychecks. Each of these documents identified Plaza Residences as plaintiff’s employer, and the fact that Plaza Residences relinquished all authority to nonparty Wavecrest Management, Inc., which directed and controlled plaintiff’s work, did not preclude Plaza Residences from asserting the Workers’ Compensation defense.

The First Department also determined petitioner’s jumping from a stalled elevator was “an unforeseeable, superseding cause of his accident” and dismissal of his complaint was therefore warranted. Clifford v Plaza Hous Dev Fund Co, Inc, 2013 NY Slip Op 02695, 9871, 305519/08, 1st Dept, 4-23-13

 

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Proof Requirements for “Breach of Employment Contract” and “Labor Law Article 6” Actions

In reversing the verdict for the defendant in a “breach of an employment contract” and “Labor Law article 6” action, the Second Department explained the proof requirements for both as follows:

The elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s performance under the contract, the defendant’s breach of the contract, and resulting damages …. “The elements of an effective employment contract consist of the identity of the parties, the terms of employment, which include the commencement date, the duration of the contract and the salary'” …. Moreover, where the duration of a contract exceeds one year, in order to satisfy the statute of frauds “a writing must identify the parties, describe the subject matter, state all the essential terms of an agreement, and be signed by the party to be charged” … .  * * *

…”[T]he purpose of Labor Law article 6 is to strengthen and clarify the rights of employees to the payment of wages'” …. To recover under that article, “a plaintiff must first demonstrate that he or she is an employee entitled to its protections” … . Although an independent contractor is not considered an employee for the purposes of Labor Law § 190 …, “[t]he critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results” … .  Kausal v Educational Prods Info Exch Inst, 2013 NY Slip Op 02545, 2011-07924, Index No 5953/04, 2nd Dept, 4-17-13

 

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“Special Employee” Status Defined

Finding that the defendant company had not demonstrated as a matter of law that plaintiff was a “special employee” within the meaning of the Workers’ Compensation Law, the Second Department explained:

The protection against lawsuits brought by injured workers which is afforded to employers by Workers’ Compensation Law §§ 11 and 29(6) extends to special employers … . Thus, an injured person who elects to receive Workers’ Compensation benefits from his or her general employer is barred from maintaining a personal injury action against his or her special employer …. “A special employee is described as one who is transferred for a limited time of whatever duration to the service of another. General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer” …. The determination of special employment status is usually a question of fact and may only be made as a “matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact” … . “Although no one [factor] is decisive,’ the question of who controls and directs the manner, details and ultimate result of the employee’s work’ is a significant and weighty feature’ of the analysis” …. The exclusivity provisions of the Workers’ Compensation Law also extend to entities which are alter egos of the injured worker’s employer ….  Abreu v Wel-Made Enters, Inc, 2013 NY Slip 02524, 2012-03166, Index No 36405/07, 2nd Dept 4-17-13

 

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