Employment Law – Page 82 – New York Appellate Digest

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

February 19, 2013

Administrative Law, Education-School Law, Employment Law, Municipal Law

residency requirements for school district employees are enforceable.

The Court of Appeals, in a full-fledged opinion by Judge Read, determined the requirement that employees of the School District of the City of Niagara Falls reside in the City of Niagara Falls serves a legitimate purpose and is not related to job performance. Therefore, only notice and an opportunity to respond to the allegation of a violation of the requirement are necessary to comply with due process. Matter of Beck-Nichols v Bianco, 2013 NY Slip Op 01015 [20 NY3d 540], CtApp, 2-19-13

February 19, 2013

Education-School Law, Employment Law

Full-Time Employment, No Matter How It Is Labeled, Counted Toward Teacher Seniority.

In a full-fledged opinion by Justice Peradotto, the Fourth Department determined that a teacher, for seniority purposes, deserved credit for the entire period during which she taught full-time, no matter how the type of employment was labeled (per diem, substitute, probationary, etc.). Although the teacher technically was asked to “resign” until she passed a particular exam, the fact that she continued to work full-time under in a different employee-category was determinative. Matter of Alessi vs Board of Education, Wilson School District, et al, 1380, CA 12-0119 Fourth Dept. 2-8-13

February 8, 2013

Arbitration, Contract Law, Education-School Law, Employment Law

Arbitrator’s Rulings Largely Unreviewable

An arbitrator’s interpretation of a collective bargaining agreement was vacated by the trial court. The Fourth Department reversed and confirmed the arbitration award. The decision includes a substantive discussion of the criteria that must be met before an arbitration award can be disturbed by a court. “[A]n arbitrator’s rulings, unlike a trial court’s, are largely unreviewable…”. An arbitrator’s interpretation of a contract may be set aside “only if the [arbitrator] gave a completely irrational construction to the provisions in dispute and, in effect, made a new contract for the parties…”. Matter of the Arbitration between Professional, Clerical, Technical, Employees Association and Board of Education for Buffalo City School District, 1317, CA 12-01143 Fourth Dept. 2-1-13

February 1, 2013

Contract Law, Employment Law, Fraud

At Will Employee Can Not Use “Fraudulent Inducement” Theory Re: Acceptance-of-Employment Offer.

Plaintiff brought a cause of action for “fraudulent inducement” alleging she accepted employment with defendant hospital based on a false claim the hospital had “passed” a survey related to accreditation when, in fact, it had received only a “conditional accreditation status.” The Second Department determined that the fraudulent inducement cause of action must be dismissed because plaintiff was an at-will employee. “The at-will employment doctrine … bars a cause of action sounding in fraudulent inducement, even where the circumstances pertain to a plaintiff’s acceptance of an offer of a position rather than his or her termination …”. The Second Department agreed with the trial court that the breach of contract cause of action should not be dismissed, but the Court dismissed the punitive damages aspect of the breach of contract cause of action because punitive damages do not attach to purely private wrongs. Guido v Orange Regional Medical Center, 2011-08527, Index No. 13123/10 Second Dept. 1-23-13

January 23, 2013

Civil Procedure, Employment Law, Medical Malpractice, Negligence

Medical Malpractice Against Hospital, No Need to Name Individual Doctors.

In a medical malpractice action, where the plaintiff has a respondeat superior claim against a hospital based on the actions of nonparty physicians, the failure to name the individual doctors upon whom the claim is based within the applicable statute of limitations period does not compel dismissal of the vicarious liability claim against the hospital. Parilla v Buccellato, et al, 2011-09045, Index No. 500001/08 Second Dept. 1-9-13

January 9, 2013