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The Prevailing Wage Statute Applies To All Work Reasonably Interpreted to Be Covered by the Statute—The Fact that the Application of the Statute Is Unsettled At the Time the Public Works Contract Is Entered Does Not Allow the Employer to Escape Its Reach Once the Law Is Settled

The Court of Appeals, in an opinion by Judge Smith, answered two certified questions posed by the Second Circuit about the application of the prevailing wage statute to workers engaged in the testing and inspection of fire protection equipment.  The statute requires employees doing construction, maintenance or repair on public works be paid not less than the prevailing rate of wages. The Second Circuit was asked to review the Labor Department Commissioner's ruling that the statute applied to the testing and inspection of fire protection equipment, but only prospectively.  The Second Circuit asked the Court of Appeals whether deference to the Labor Department's prospective application should be accorded, and further asked whether an employer who agrees to be bound to pay prevailing wages pursuant to section 220 has agreed to pay such wages for all work covered by the statute as the statute is reasonably interpreted, as opposed to only the types of work about which the law is settled at the time of the agreement.  The Court of Appeals determined the law should apply as it is correctly understood, not as the parties may have misunderstood it.  Ramos v SimplexGrinnell LP, 2014 NY Slip Op 07198, CtApp 10-23-14

 

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Election of Remedies Provision in Labor Law 740 Precluded Retaliation Action Based Upon an Alleged Violation of NYC Administrative Code

The Second Department determined plaintiffs’ action for retaliation in employment in violation ov the NYC Administrative Code was barred by the election of remedies provision of Labor Law 740 (7):

[The Administrative Code-based] claim is barred by the election of remedies provision contained in Labor Law § 740(7). Labor Law § 740(7) provides that “the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law.” The waiver applies to causes of action arising out of or relating to the same underlying claim of retaliation … .

The plaintiffs in this action alleged retaliation pursuant to Labor Law § 740 in a prior action … . The claim asserted here pursuant to Administrative Code of the City of New York § 8-107 arises out of and relates to the same underlying claim of retaliation as asserted in the prior action. It is, therefore, barred by the Labor Law § 740(7) election of remedies provision … . The waiver may not be avoided by amending the complaint to withdraw the section 740 claim, as the plaintiffs did in the prior action … . Charite v Duane Reade Inc, 2014 NY Slip Op 06292, 2nd Dept 9-24-14

 

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Election of Remedies Provision of Labor Law 740 (Retaliation in Employment) Does Not Bar a Separate Claim Pursuant to Labor Law 203-c (Placement of Cameras in Employee Restrooms)

The Second Department determined the election of remedies provision of Labor Law 740 (retaliation in employment) did not bar a separate and independent claim pursuant to Labor Law 203-c (placement of video cameras in employee restrooms):

Labor Law § 740(7) provides that “the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law.” However, the waiver only applies to causes of action arising out of or relating to the same underlying claim of retaliation … . The Labor Law § 203-c cause of action here asserts the separate and independent claim of illegal placement of video cameras in employee restrooms. Thus, it is not barred by the Labor Law § 740(7) election of remedies provision … . Davis v Duane Reade Inc, 2014 NY Slip Op 06295 2nd Dept 9-24-14

 

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One Year Statute of Limitations in Labor Law 740 Trumps the One-Year-Ninety-Days Statute of Limitations in General Municipal Law 50-e(5) (Incorporated Into the Health & Hospitals Corporation Act)

The First Department, over a dissent, determined plaintiff’s action was time-barred pursuant to Labor Law 740 and was not covered by Labor Law 741. Plaintiff sued the NYC Health & Hospitals Corp (HHC) after she was terminated.  She alleged her termination was in retaliation for her objecting to the documentation submitted concerning human-subject research programs.  Plaintiff’s job entailed reviewing the documentation and did not involve caring for patients:

We turn first to the claim under Labor Law § 740. That cause of action is time-barred under the terms of the statute itself because …HHC terminated petitioner’s employment on April 6, 2009, and petitioner filed her petition for leave to file a late notice of claim on July 2, 2010, after the expiration of the one-year statute of limitations incorporated into the statute (see Labor Law § 740[4][a]). General Municipal Law § 50-e(5), made applicable to HHC by HHC Act § 20(2), permits a court to entertain a motion for leave to serve a late notice of claim only within the applicable limitations period, not, as here, after the limitations period has expired. Contrary to Supreme Court’s view, the one-year statute of limitations that is part of section 740 takes precedence over the one-year and 90-day limitations period set forth in the HHC Act … .

Although not time-barred, the claim under Labor Law § 741 is also without merit as a matter of law. Section 741 affords to a health care “employee,” as defined in the statute, a cause of action against the employer for “retaliatory action” (§ 741[2]) taken “because the employee does any of the following:

“(a) discloses or threatens to disclose to a supervisor, or to a public body an activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care; or

“(b) objects to, or refuses to participate in any activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care.”

Section 741 defines the term “employee,” as used in that statute, as “any person who performs health care services for and under the control and direction of any public or private employer which provides health care services for wages or other remuneration” (§ 741[1][a] [emphasis added]). The Court of Appeals, describing this definition as “exactingly specific” … . Matter of Moynihan v New York City Health & Hosps Corp, 2014 NY Slip Op 06038, 1st Dept 9-4-14

 

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Complaint Pursuant to the “Whistleblower” Statute Need Not Identify the Particular Statute or Regulation Alleged to Have Been Violated by the Employer

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a complaint brought under the “whistleblower”  provision of the Labor Law (section 740) need not identify the particular statute or regulation alleged to have been violated by the employer:

Labor Law § 740 (2), commonly referred to as the “whistleblower statute,” provides, in relevant part, that “[a]n employer shall not take any retaliatory personnel action against an employee because such employee . . . discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation” that either “creates and presents a substantial and specific danger to the public health or safety, or . . . constitutes health care fraud” (Labor Law § 740 [2] [a]). The narrow issue on this appeal is whether a complaint asserting a claim under that provision must identify the specific “law, rule or regulation” allegedly violated by the employer. We conclude that there is no such requirement. * * *

To be sure, in order to recover under a Labor Law § 740 theory, the plaintiff has the burden of proving that an actual violation occurred, as opposed to merely establishing that the plaintiff possessed a reasonable belief that a violation occurred … . And, the violation must be of the kind that “creates a substantial and specific danger to the public health or safety” … . However, for pleading purposes, the complaint need not specify the actual law, rule or regulation violated, although it must identify the particular activities, policies or practices in which the employer allegedly engaged, so that the complaint provides the employer with notice of the alleged complained-of conduct. Webb-Weber v Community Action for Human Servs Inc, 2014 NY Slip Op 03428, CtApp 5-13-14

 

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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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Interplay Between New York Labor Law and Federal Longshore Workers’ Compensation Act Discussed

Plaintiff was injured when he fell on a “float stage” which was used to transport workers and materials on navigable waters.  The First Department discussed the interplay between the Labor Law (elevation-related fall) and the Longshore Workers’ Compensation Act:

Since the accident in which plaintiff Joseph Pipia (hereinafter plaintiff) was injured occurred in navigable waters, and plaintiff, an employee who was covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA) (33 USC § 901 et seq.), has been receiving benefits thereunder, federal maritime law is applicable to this case … . Plaintiff may not sue his employer, JES, since the LHWCA “precludes recovery of damages against [the injured worker’s] employer” …. . …

Plaintiff is also barred from asserting any claims other than Labor Law § 200 and common-law negligence claims against Trevcon, the vessel owner (see 33 USC § 933…). Contrary to plaintiff’s contention, the float stage involved in his accident constituted a “vessel” for purposes of the LHWCA … . While it consisted of wooden planks bolted together, had limited weight capacity and could only be moved short distances from the pier, it was regularly used to carry workers and materials around the water. Although it generally was tied to land structures with a line, it sometimes was untied to allow a worker to move to a different location to pick up materials from the pier. … “[A] reasonable observer, looking to the [float stage]’s physical characteristics and activities, would . . . consider it to be designed to [a] practical degree for carrying people or things on water”… . Pipia v Turner Constr Co, 2014 NY Slip Op 00612, 1st Dept 2-4-14

 

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Commissioner of Labor Can Not Be Sued for Her Exercise of Discretionary Judgment Even Where Action Taken by Commissioner Resulted from a Mistaken Interpretation of Labor Law Statutes

The Third Department determined that the Commissioner of Labor was immune from a lawsuit stemming from her orders to seize and destroy fireworks.  At the time of the seizure and destruction, the Commissioner believed the fireworks were “explosives” within the meaning of Labor Law 451 and that the storage of the fireworks violated Labor Law 453.  It was subsequently determined by the Industrial Board of Appeals (IBA) that the fireworks were not “explosives” within the meaning of the Labor Law. In finding that the Commissioner could not be sued for her exercise of discretion (seizing and destroying the fireworks), the court wrote:

As relevant here, this statute authorizes the Commissioner “to seize and impound any explosives found within this state . . . which are in apparent violation” of Labor Law article 16, “where the [C]ommissioner has reason to believe that public safety is endangered by such explosives” (Labor Law § 460 [1] [emphases added]).  Further, “where, in the opinion of the [C]ommissioner, the . . . storage . . . or location of explosives . . . [represents] a danger to public safety, the [C]ommissioner may, without [a] hearing and without liability . . . to the owner . . . direct the seizure and destruction of such explosives” (Labor Law § 460 [5] [emphasis added]).

Under the … statutory authority, the Commissioner was empowered – in her discretion – to seize explosives that appeared to be in violation of Labor Law article 16 if she had reason to believe that they endangered public safety, and to order their destruction “without liability.”  Under settled law, “the common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions” …  That is, “[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the [claimant]” … .  The Commissioner’s determination under Labor Law § 460 to order the seizure and, later, the destruction of the fireworks on the belief – albeit later determined by the IBA to be mistaken – that they constituted “explosives” within her jurisdiction under Labor Law former § 451 (1) was the epitome of a discretionary judgment call and an action taken in the performance of her official duties and governmental functions.  Esposito v State of New York, 515963, 3rd Dept 12-5-13

 

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Police Officer Not Injured by “Recognized Hazard”—No Recovery Under Municipal Law/Labor Law—Officer Injured by Suspect After Mace Canister Failed

In dismissing a Municipal Law/Labor Law cause of action brought by a police officer against the city after she was injured by a suspect when her mace canister failed, the Second Department explained:

Although Labor Law § 27-a(3) may serve as a proper predicate for a cause of action alleging a violation of General Municipal Law § 205-e …, the plaintiff failed to allege that her injuries resulted from a “recognized hazard[ ]” within the meaning of the Labor Law (Labor Law § 27-a[3][a][1]…).  Blake v City of New York, 2013 NY Slip Op 05608, 2nd Dept 8-14-13

 

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