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A PUBLIC LIBRARY IS NOT SUBJECT TO THE PREVAILING WAGE REQUIREMENTS OF THE LABOR LAW; THEREFORE THE CLEANING CONTRACTOR HIRED BY THE LIBRARY WAS NOT REQUIRED TO PAY ITS EMPLOYEES THE PREVAILING WAGE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, reversing Supreme Court, determined the public library was not subject to the prevailing wage requirements of the Labor Law, Therefore the petitioner cleaning service, hired by the library, was not required to pay its employees the prevailing wage:

Although we are mindful that the prevailing wage law “is to be interpreted with the degree of liberality essential to the attainment of the end in view”… , that mandate does not permit an overly-broad reading of the statute that expands its reach to noncovered entities … . The library at issue undoubtedly performs a public function and is closely intertwined with the school district that it serves, but it is not itself “a municipal corporation, school district, district corporation [or] board of cooperative educational services” — the entities that are considered to be “[p]olitical subdivision[s]” of the state for purposes of public contracts … . By statute, an “education corporation” and a “school district” are separately defined, indicating “that they are mutually exclusive” … . An “education corporation” is a type of corporation formed for reasons “other than for profit” … , whereas a “school district” is a type of “municipal corporation” … . Reflecting its status as a distinct entity, the library’s Board of Trustees is vested with independent decision-making authority and operational control … . Nor do we view the library as “operat[ing] a public improvement” so as to be considered a public benefit corporation within the embrace of Labor Law § 230 (3) … , or as constituting any of the other public entities included within Labor Law article 9. Consequently, we hold that the library at issue is not a public agency within the meaning of Labor Law § 230 (3). Matter of Executive Cleaning Servs. Corp. v New York State Dept. of Labor, 2021 NY Slip Op 00461, Third Dept 1-28-21

 

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CLAIMS BY CORRECTIONS OFFICERS SEEKING TO REQUIRE THE DEPARTMENT OF CORRECTIONS TO PROVIDE TRAINING AND EQUIPMENT FOR DEALING WITH VIOLENT PRISONERS WERE NOT JUSTICIABLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the allegations by the plaintiff corrections officers concerning training and equipment for dealing with violent prisoners were not justiciable:

These claims are not justiciable. In seeking an order that would require the Department of Correction (DOC) to make specific decisions on staffing, training, and equipment, plaintiffs would have the courts involved in the management of DOC policy, thereby interfering with the discretion granted to DOC under the New York City Charter … . Unlike the claims brought in Center for Independence of the Disabled v Metropolitan Transp. Auth. (184 AD3d 197 [1st Dept 2020]), plaintiffs’ claims, that DOC’s current training/equipment scheme for correction officers fails to satisfy the statutory safe workplace requirement, are not well suited for judicial review, because they do not involve the protection of a fundamental right to be free from discrimination but would instead embroil the judiciary in extensive consideration of policy, and the remedy sought would require the courts to take on the improper task of mandating the specifics of DOC’s plans and operations. Correction Officers’ Benevolent Assn., Inc. v City of New York, 2021 NY Slip Op 00109, First Dept 1-12-21

 

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CLAIMANT TRUCK DRIVER WAS AN EMPLOYEE OF FLS UNDER THE COMMON LAW AND UNDER THE LABOR LAW, DESPITE THE FACT THAT FLS DID NOT MAINTAIN A FLEET OF TRUCKS; CLAIMANT WAS THEREFORE ENTITLED TO UNEMPLOYMENT BENEFITS (THIRD DEPT).

The Third Department determined Fundamental Labor Strategies (FLS) was claimant truck driver’s employer, pursuant to common law and the Labor Law (NYS Commercial Goods Transportation Industry Fair Play Act), despite the fact FLS did not maintain a fleet of trucks:

Labor Law § 862-b (1) provides, in relevant part, that “[a]ny person performing commercial goods transportation services for a commercial goods transportation contractor shall be classified as an employee of the commercial goods transportation contractor unless” such person is either a separate business entity as defined by Labor Law § 862-b (2) or an independent contractor within the meaning of Labor Law § 862-b (1) (a)-(c). The statutory scheme further defines “commercial goods transportation services” as “the transportation of goods for compensation by a driver who possesses a state-issued driver’s license, transports goods in . . . New York, and operates a commercial motor vehicle” (Labor Law § 862-a [3]), and a “commercial goods transportation contractor” includes any legal entity that compensates a driver for performing such services (Labor Law § 862-a [1]). …

FLS falls squarely within the definition of a commercial goods transportation contractor as set forth in Labor Law § 862-a (1). Hence, the statutory presumption of employment applies in the first instance (see Labor Law § 862-b [1]).

To overcome the statutory presumption, FLS needed to establish that claimant was “free from control and direction in performing [his] job,” both under the terms of his letter agreement with FLS and “in fact” (Labor Law § 862-b [1] [a]), that the services rendered by claimant were “performed outside [FLS’s] usual course of business” (Labor Law § 862-b [1] [b]) and that claimant was “customarily engaged in an independently established trade, occupation, profession, or business that is similar to the service” he performed for FLS (Labor Law § 862-b [1] [c]). All three criteria — commonly referred to as the ABC test — had to be met in order for claimant to be classified as an independent contractor (see Labor Law § 862-b [1]).

… [S]ubstantial evidence supports the Board’s finding that FLS failed to establish that claimant was free from direction and control in performing his job. Matter of Doster (Fundamental Labor Strategies–Commissioner of Labor), 2020 NY Slip Op 05262, Third Dept 10-1-20

 

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DESPITE THE ALLEGATION THAT THE DRIVER HAD LOGGED OFF THE UBER APP PRIOR TO THE PEDESTRIAN-VEHICLE ACCIDENT, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON THE VICARIOUS LIABILITY THEORY; THE UNEMPLOYMENT INSURANCE APPEAL BOARD’S FINDING THAT THE DRIVER WAS EMPLOYED BY UBER WAS NOT ENTITLED TO PRECLUSIVE EFFECT; ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this pedestrian-vehicle accident case, determined: (1) a ruling by the Unemployment Insurance Appeal Board finding that defendant driver was an employee of defendant Uber was not entitled collateral-estoppel effect pursuant to Labor Law 623( 2); (2) although the Labor Law 623(2) argument was not raised below, it raised a question of law which could not have been avoided below and therefore was considered on appeal; (3) the claim that defendant driver had logged off the Uber app at the time of the accident did not warrant summary judgment in favor of Uber on the vicarious liability theory:

An action may be considered to be within the scope of employment, thus rendering an employer vicariously liable for the conduct, when “the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment” … . Whether an employee was acting within the scope of his or her employment is generally a question of fact for the jury … .

Here, contrary to Uber’s contention, the averments [that the driver] had logged off of the Uber app 40 minutes before the accident were simply insufficient, without more, to eliminate all questions of fact as to whether Hussein was acting within the scope of his alleged employment with Uber at the time of the incident … . Uy v Hussein, 2020 NY Slip Op 05080, Second Dept 9-23-30

 

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PLAINTIFF ENTITLED TO UNPAID SALARY, PREJUDGMENT INTEREST AND ATTORNEYS FEES PURSUANT TO LABOR LAW 198 AND CPLR 5001 IN THIS BREACH-OF-A-WRITTEN-EMPLOYMENT-CONTRACT ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to salary, prejudgment interest and attorney’s fees stemming from plaintiff’s employer’s breach of a written employment agreement:

Pursuant to CPLR 5001 et seq., the plaintiff is entitled to such statutory prejudgment interest based on the defendant’s breaches of the written agreement. Moreover, contrary to the defendant’s contention, the plaintiff’s unpaid wages … and the severance wages fall within the definition of wages as set forth in Labor Law § 190(1) … . Therefore, such wages are protected by the provisions set forth in Labor Law § 193 and fall within the ambit of remedies provided by Labor Law § 198 … . * * *

… [F]or the same reasons that the plaintiff is entitled to prejudgment interest, the plaintiff also established his entitlement to judgment as a matter law on so much of the second cause of action as sought an award of reasonable attorney’s fees under Labor Law § 198(1-a) … . Gertler v Davidoff Hutcher & Citron , 2020 NY Slip Op 04731, Second Dept 8-26-20

 

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IN LIGHT OF THE REVERSAL BY THE COURT OF APPEALS, PLAINTIFF HOME HEALTH CARE AIDES WERE NOT ENTITLED TO CLASS CERTIFICATION ON THE QUESTION WHETHER THEY SHOULD BE PAID FOR THE SLEEP AND BREAK HOURS DURING 24-HOUR SHIFTS (SECOND DEPT).

The Second Department, on remittal after reversal by the Court of Appeals, determined plaintiffs, home health care aides,  were not entitled to class certification on the question whether they were entitled to be paid for the sleep and break hours during 24-hour shifts. The Court of Appeals ruled that the NYS Department of Labor’s (DOL’s) finding that the flat-rate pay did not violate the Minimum Wage Order (Wage Order) was not irrational or unreasonable:

On March 26, 2019, the Court of Appeals reversed this Court’s decision and order, concluding that the DOL’s interpretation of the Wage Order did not conflict with the promulgated language and was not irrational or unreasonable … . The Court of Appeals remitted the matter to this Court to determine whether the plaintiffs’ class certification motion was properly denied, considering the DOL’s interpretation of the Wage Order as well as alternative bases for class certification asserted by the plaintiffs.

The proponent of a motion for class certification bears the burden of establishing the requirements of CPLR article 9 … . CPLR 901 sets forth five prerequisites to class certification. “These factors are commonly referred to as the requirements of numerosity, commonality, typicality, adequacy of representation and superiority” … . “A class action certification must be founded upon an evidentiary basis” … .

… [I]n light of the DOL’s interpretation of the Wage Order, the plaintiffs have failed to demonstrate entitlement to class certification on the question of whether the defendants violated the law by failing to pay them for all hours of a 24-hour shift. Although a worker must be paid minimum wage for the time he or she is “required to be available for work at a place prescribed by the employer,” under the DOL interpretation of the Wage Order, a worker is not considered to be “available for work at a place prescribed by the employer” during designated meal and sleep breaks, totaling 11 hours of a 24-hour shift … . Moreno v Future Health Care Servs., Inc., 2020 NY Slip Op 04473, Second Dept 8-12-20

 

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ALTHOUGH DISFAVORED, DISCLOSURE OF REDACTED TAX RETURNS WAS WARRANTED IN THIS CASE (FIRST DEPT).

The First Department noted that the disclosure of tax returns is disfavored, but agreed with Supreme Court that disclosure of the redacted returns in this Labor-Law/employment-law dispute was warranted:

Plaintiffs claim that between 2010 and 2016 defendant employed them as a caretaker for her ailing aunt and that defendant violated, inter alia, several sections of the Department of Labor Regulations (12 NYCRR) requiring overtime pay, a minimum wage, and additional pay for split shifts. Defendant denies that she was plaintiffs’ employer for purposes of the regulations and provisions of the Labor Law, but admits that she paid plaintiffs by check from 2014 to 2016, albeit on her aunt’s behalf. Plaintiffs claim they were paid in cash by defendant between 2010 and 2013. Defendant, who denies that she was the source of the cash payments, seeks plaintiffs’ federal and state tax returns for 2010 to 2013, claiming she needs the returns to verify the cash amounts, as well as plaintiffs’ assertion that they were employees, and not independent contractors.

… [D]efendant demonstrated both that the specific information ordered disclosed was necessary to defend the action, and unavailable from other sources … . Since plaintiffs were paid in cash between 2010 and 2013 and there is no other evidence in the record establishing who paid their wages and how much they were paid during those years, defendant showed a specific need for the production of the three years of tax returns, which might show the amounts claimed by plaintiffs as income from the caretaker work, as well as whether they claimed the income as wages or as money earned through self-employment. Defendant demonstrated that investigating plaintiffs’ bank accounts would be inconclusive, since pay deposited in the accounts could have been commingled with other amounts, and because one of the plaintiffs claimed that she used several banking institutions and did not make deposits on a predictable basis. We note that the court already inspected the tax returns in camera and deemed them relevant. Currid v Valea, 2020 NY Slip Op 03590, First Dept 6-25-20

 

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CRITERIA FOR DETERMINING WHETHER A CLAIMANT IS A SEPARATE BUSINESS ENTITY PURSUANT TO THE FAIR PLAY ACT CLARIFIED; MATTER REMITTED TO THE UNEMPLOYMENT INSURANCE APPEAL BOARD FOR A DECISION WHETHER CLAIMANT WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR USING THE CORRECT ANALYTICAL CRITERIA (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Devine, reversing the Unemployment Insurance Appeal Board and remitting the matter, clarified the meaning of the first criterion for determining whether claimant is an employee or an independent contractor pursuant to the so-called separate business entity test under the Fair Play Act. Here, the Board found that the claimant was an employee of Adelchi entitled to unemployment benefits, but the Third Department, agreeing with Adelchi’s argument, held the Board had not applied the proper criteria to its analysis:

The issue [is] whether claimant could be viewed as a separate business entity and, in that regard, Adelchi argues that the Board misconstrued the first criterion of the separate business entity test by demanding proof of a total lack of direction or control over a business entity (see Labor Law § 861-c [2] [a]). Adelchi contends that this criterion of the separate business entity test instead codifies the common-law rule that “[a]n employer-employee relationship exists when the evidence demonstrates that the employer exercises control over the results produced by claimant or the means used to achieve the results” … , which involves a fact-specific inquiry where “the relevant indicia of control will necessarily vary depending on the nature of the work” … . * * *

We … conclude that the first criterion in the separate business entity test does not require a contractor to show a total lack of direction or control over a business entity, but instead that their relationship as a whole did not show sufficient “control over the results produced or the means used to achieve the results” by the contractor to reflect an employer-employee relationship … . Although the factual findings already made by the Board would appear to permit the determination that Adelchi did not meet the first criterion under the proper analysis, we are constrained to reverse and remit so that the Board may answer that question in the first instance … . Matter of Tuerk (Adelchi Inc.–Commissioner of Labor), 2020 NY Slip Op 03441, Third Dept 6-18-20

 

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A PART-TIME COLLEGE INSTRUCTOR SHOULD NOT HAVE BEEN AWARDED UNEMPLOYMENT BENEFITS BECAUSE HE HAD BEEN ASSURED OF EMPLOYMENT IN THE SEMESTER FOLLOWING THE SUMMER BREAK; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, over a two-justice dissent, determined claimant, a part-time community college instructor, should not have been awarded unemployment benefits because he had been notified he would be employed in the semester after the summer break. The dissenters argued his employment depended upon course-enrollment which was uncertain:

Pursuant to Labor Law § 590 (10), “professionals who are employed by educational institutions are precluded from receiving unemployment insurance benefits during the period between two successive academic periods if they have received a reasonable assurance of continued employment” … . “A reasonable assurance has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period … . * * *

On the record before us, the Board’s decision was not supported by substantial evidence … . inasmuch as claimant received a reasonable assurance of continued employment for the 2018 fall semester such that he was ineligible to receive unemployment insurance benefits … . Matter of Barnett (Broome County Community Coll.–Commissioner of Labor), 2020 NY Slip Op 02229, Third Dept 4-9-20

 

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LABOR LAW 198-b, WHICH PROHIBITS AN EMPLOYER’S COLLECTING KICKBACKS FROM AN EMPLOYEE, DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST THE EMPLOYER (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined Labor Law 198-b, which essentially prohibits an employer from collecting kickbacks from and employee, did not create a private right of action:

Plaintiff, a former teacher at defendant Utica Academy of Science Charter School (UASCS), commenced this action seeking to recover damages based upon allegations that there in which plaintiff was required to provide donations to [defendant] High Way in the form of illegal kickbacks of his salary under threat of demotion or termination. In his third cause of action, plaintiff alleged that defendants’ conduct violated Labor Law § 198-b, and plaintiff sought damages arising from that violation pursuant to Labor Law § 198. …

Although we offer no opinion with respect to whether other provisions within article 6 of the Labor Law afford private rights of action, we agree with High Way that the legislature did not intend to create a private right of action for violations of Labor Law § 198-b … , inasmuch as ” [t]he [l]egislature specifically considered and expressly provided for enforcement mechanisms’ in the statute itself” … . Indeed, by its express terms, a violation of section 198-b constitutes a misdemeanor offense … . Konkur v Utica Academy of Science Charter Sch., 2020 NY Slip Op 01827, Fourth Dept 3-13-20

 

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