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WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT).

The First Department determined plaintiff’s whistleblower (Labor Law 740) cause of action in the amended complaint was not time-barred because defendant had timely notice of the facts underlying the claim in the original complaint. The relation-back doctrine applied. The court further held that the gender discrimination action under the Human Rights Law was separate and distinct from the whistleblower cause of action:

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The court properly applied the relation back doctrine (CPLR 203[f]) to plaintiff’s whistleblower claim pursuant to Labor Law § 740, which requires such actions to be commenced within one year of the alleged retaliatory action (Labor Law § 740[4][a]). Although that claim was not asserted until the Second Amended Complaint, filed on October 19, 2015, more than one year after her termination on February 4, 2014, the original complaint, filed on January 31, 2015, alleged that on February 3, 2014, plaintiff reported to the defendants’ Business Practices Office defendants’ improper practices regarding its procurement of chemicals to manufacture its highest grossing drug, and that those practices did not comply with FDA regulations. It further alleged that she was terminated the next day in retaliation for that conduct. …

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The motion court correctly concluded that Labor Law § 740(7), the “election-of-remedies” provision, does not waive plaintiff’s claim of discrimination under the New York State Human Rights Law (State HRL) (Executive Law § 296) because, in alleging discrimination on account of plaintiff’s gender, national origin, and religion, plaintiff does not seek the same rights and remedies as she does in connection with her whistleblowing claim, notwithstanding that both claims allege that she was wrongfully terminated … . Demir v Sandoz Inc., 2017 NY Slip Op 07961, First Dept 11-14-17

 

EMPLOYMENT LAW (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/LABOR LAW (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/HUMAN RIGHTS LAW (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/CIVIL PROCEDURE (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/CPLR 203 (RELATION BACK, WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/DISCRIMINATION (HUMAN RIGHTS LAW, EMPLOYMENT LAW, WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))

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PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT).

The Second Department determined the plaintiff home health care workers were properly certified to bring a class action suit alleging inadequate pay in violation of the minimum wage requirements of the Labor Law. The plaintiffs worked at clients’ residences in 24-hour shifts. They were paid an hourly rate for the 12 daytime hours of their 24-hour shifts and a flat rate for the 12 nighttime hours. The plaintiffs argue they were entitled to the minimum wage for each hour of their 24-hour shifts:

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The plaintiffs were required to be at the clients’ residences and were also required to perform services there if called upon to do so. To interpret that regulation to mean that the plaintiffs were not, during those nighttime hours, “required to be available for work” simply because it turned out that they were not called upon to perform services is contrary to the plain meaning of “available” … . …[T]o the extent that the members of the proposed class were not “residential” employees who “live[d] on the premises of the employer,” they were entitled to be paid the minimum wage for all 24 hours of their shifts, regardless of whether they were afforded opportunities for sleep and meals … . …

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… [T]he plaintiffs established the existence of the five prerequisites to class certification … , and none of the factors listed in CPLR 902 warranted a denial of the motion … . Andryeyeva v New York Health Care, Inc., 2017 NY Slip Op 06421, Second Dept 9-13-17

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Similar issues and result in Moreno v Future Care Health Servs., Inc., 2017 NY Slip Op 06439, Second Dept 9-13-17

 

EMPLOYMENT LAW (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/LABOR LAW (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/CIVIL PROCEDURE (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/CLASS ACTIONS (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/HOME HEALTH CARE WORKERS (EMPLOYMENT LAW, PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/MINIMUM WAGE (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))

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INSUFFICIENT EVIDENCE PUBLIC FUNDS WERE USED TO PAY FOR CONSTRUCTION AT THE SARATOGA RACE COURSE, THEREFORE THE PREVAILING WAGE REQUIREMENT OF LABOR LAW 220 DID NOT APPLY.

The Third Department annulled the determination of the Department of Labor finding that the New York Racing Association (NYRA) was required to pay the prevailing wage to a construction contractor working at the Saratoga Race Course. The Third Department held there was insufficient proof public funds were used to pay the contractor:

Labor Law § 220 provides that “[t]he wages to be paid for a legal day’s work . . . to laborers, work[ers] or mechanics upon . . . public works, shall be not less than the prevailing rate of wages” (Labor Law 220 § [3] [a]), defined as the rate paid to “workers, laborers or mechanics in the same trade or occupation in the locality where the work is being performed” (Labor Law § 220 [5]). The NY Constitution further provides that “[n]o laborer, worker or mechanic, in the employ of a contractor or sub-contractor engaged in the performance of any public work, shall . . . be paid less than the rate of wages prevailing in the same trade or occupation in the locality within the state where such public work is to be situated, erected or used” (NY Const, art I, § 17). The Court of Appeals has recently clarified the meaning of a public work: “[f]irst, a public agency must be a party to a contract involving the employment of laborers, workers, or mechanics. Second, the contract must concern a project that primarily involves construction-like labor and is paid for by public funds. Third, the primary objective or function of the work product must be the use or other benefit of the general public” … . W.M. Schultz Constr., Inc. v Musolino, 2017 NY Slip Op 01425, 3rd Dept 2-23-17

LABOR LAW (INSUFFICIENT EVIDENCE PUBLIC FUNDS WERE USED TO PAY FOR CONSTRUCTION AT THE SARATOGA RACE COURSE, THEREFORE THE PREVAILING WAGE REQUIREMENT OF LABOR LAW 220 DID NOT APPLY)/EMPLOYMENT LAW INSUFFICIENT EVIDENCE PUBLIC FUNDS WERE USED TO PAY FOR CONSTRUCTION AT THE SARATOGA RACE COURSE, THEREFORE THE PREVAILING WAGE REQUIREMENT OF LABOR LAW 220 DID NOT APPLY)/PREVAILING WAGE INSUFFICIENT EVIDENCE PUBLIC FUNDS WERE USED TO PAY FOR CONSTRUCTION AT THE SARATOGA RACE COURSE, THEREFORE THE PREVAILING WAGE REQUIREMENT OF LABOR LAW 220 DID NOT APPLY)/NEW YORK RACING ASSOCIATION (INSUFFICIENT EVIDENCE PUBLIC FUNDS WERE USED TO PAY FOR CONSTRUCTION AT THE SARATOGA RACE COURSE, THEREFORE THE PREVAILING WAGE REQUIREMENT OF LABOR LAW 220 DID NOT APPLY)

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GLAZIERS ENROLLED IN AN APPRENTICE PROGRAM SHOULD BE PAID AS APPRENTICES EVEN IF THE WORK FOR WHICH THEY ARE PAID IS NOT IN THE SAME TRADE AS THE APPRENTICESHIP PROGRAM.

The Fourth Department, over a dissent, determined the Department of Labor’s interpretation of a statute was wrong and reversed. The case concerned whether glaziers enrolled in an apprentice program should be paid as apprentices even if the work for which they are paid is not in the same trade or occupation as the apprenticeship program:

In reviewing Labor Law § 220 as a whole, we conclude that nothing in that statute establishes any basis for a different interpretation of section 220 (3-e). Rather, we note that the very limitation defendants seek to impose on section 220 (3-e), i.e., a limitation to work in the same trade or occupation, was added to other subdivisions of Labor Law § 220 (see § 220 [3] [a], [b]). When “the Legislature uses unlike terms in different parts of a statute it is reasonable to infer that a dissimilar meaning is intended” … . The fact that the Legislature did not add similar restrictive language to section 220 (3-e) further supports our conclusion that no such restriction was intended, and this Court will not “amend [the] statute by inserting words that are not there” … .

Inasmuch as “the language of [the] statute is clear and unambiguous, [we] must give effect to its plain meaning” … , and we may not “resort to extrinsic material such as legislative history or memoranda” … . We thus conclude that Labor Law § 220 (3-e), by its terms, permits glazier apprentices who are registered, individually, under a bona fide glazier apprenticeship program to work and be paid as apprentices even if the work they are performing is not work in the same trade or occupation as their apprenticeship program. International Union of Painters & Allied Trades v New York State Dept. of Labor, 2017 NY Slip Op 01112. 4th Dept 2-10-17

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COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR.

The Third Department, in a full-fledged opinion by Justice Devine, determined the Commissioner of Labor had the authority to mandate a minimum wage ($15 an hour) for certain fast food workers in New York:

The Commissioner is authorized to make the assessment as to whether the minimum wage should be increased for employees in specific occupations, does so with help from an agency having special competence in the area and a wage board tasked with investigating the relevant questions as set forth by the Legislature, and thereafter issues a wage order setting a minimum wage in a specific occupation if such would further the policy objectives delineated by statute. The Commissioner complied with that procedure, and the fact that the Legislature failed to agree on an increase in the statutory minimum wage in the leadup to the issuance of the wage order in no way reflects dispute or confusion as to the longstanding authority of the Commissioner to set a minimum wage for employees in a given occupation … . Matter of National Rest. Assn. v Commissioner of Labor, 2016 NY Slip Op 04498, 3rd Dept 6-9-16

EMPLOYMENT LAW (COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR)/LABOR LAW (COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR)/MINIMUM WAGE (COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR)/FAST FOOD WORKERS (COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR)

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PLAINTIFF ENTITLED TO WHISTLEBLOWER PROTECTION UNDER LABOR LAW 741.

The Second Department determined plaintiff was properly found to have been entitled to whistleblower protection under Labor Law 741. Plaintiff complained about an infusion procedure during liver transplant surgery which plaintiff believed threatened the safety and health of the patient. Thereafter plaintiff was demoted and given no further work:

Labor Law § 741 prohibits an employer from taking retaliatory action against an employee because the employee discloses, threatens to disclose, 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” (Labor Law § 741[2][a], [b]). ” Improper quality of patient care' means, with respect to patient care, any practice, procedure, action or failure to act of an employer which violates any law, rule, regulation or declaratory ruling adopted pursuant to law, where such violation relates to matter which may present a substantial and specific danger to public health or safety or a significant threat to the health of a specific patient” (Labor Law § 741[1][d]). It is a defense that “the personnel action was predicated upon grounds other than the employee's exercise of any rights protected by this section” (Labor Law § 741[5]). Galbraith v Westchester County Health Care Corp., 2016 NY Slip Op 04176, 2nd Dept 6-1-16

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO WHISTLEBLOWER PROTECTION UNDER LABOR LAW 741)/EMPLOYMENT LAW (PLAINTIFF ENTITLED TO WHISTLEBLOWER PROTECTION UNDER LABOR LAW 741)/WHISTLEBLOWER STATUTE (PLAINTIFF ENTITLED TO WHISTLEBLOWER PROTECTION UNDER LABOR LAW 741)

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UNEMPLOYMENT INSURANCE EXPERIENCE RATINGS PROPERLY TRANSFERRED TO NEW BUSINESS ENTITIES DOING THE SAME WORK, EMPLOYING SOME OF THE SAME PEOPLE, AND OPERATING FROM THE SAME ADDRESS.

The Third Department determined that the unemployment insurance experience ratings of businesses which had ceased operation and then reopened under new names were properly transferred to the new businesses:

 

Labor Law § 581 (7) (a) (1) states that “[i]f an employer transfers its organization, trade or business, or a portion thereof, to another employer and, at the time of the transfer, there is at least a ten percent common ownership, management or control of the two employers, then the unemployment experience attributable to the transferred organization, trade or business shall be transferred to the employer to whom such organization, trade or business is so transferred,” and “[f]or purposes of this subdivision ‘organization, trade or business’ shall include the employer’s workforce.” Matter of Prod. Processing Inc. (Commissioner of Labor), 2016 NY Slip Op 00565, 3rd Dept 1-28-16

 

UNEMPLOYMENT INSURANCE (EXPERIENCE RATINGS PROPERLY TRANSFERRED TO NEW BUSINESS ENTITIES)/LABOR LAW (UNEMPLOYMENT EXPERIENCE RATINGS PROPERLY TRANSFERRED TO NEW BUSINESS ENTITIES)

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PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENDANT’S VOCATIONAL REHABILITATION EXPERT.

The Third Department, overruling its own precedent, determined plaintiff, in this Labor Law 200, 240(1) and 241(6) action, could properly be compelled to submit to an examination by defendant's vocational rehabilitation expert:

CPLR 3101 “broadly mandates full disclosure of all matter material and necessary in the prosecution and defense of an action” … . “The words 'material and necessary' as used in [CPLR] 3101 must 'be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity'” … . To properly exercise such discretion, a trial court must balance the need for discovery “against any special burden to be borne by the opposing party” … . If the trial court has engaged in such balancing, its determination will not be disturbed in the absence of an abuse of discretion … .

… While we previously held that there is “no statutory authority to compel the examination of an adverse party by a nonphysician vocational rehabilitation specialist” … , the Court of Appeals has since confirmed that the mandate for broad disclosure is not necessarily limited by the more specific provision of the CPLR that allows a defendant to demand that a plaintiff submit to a physical or mental examination “by a designated physician” (CPLR 3121 [a]) where his or her medical condition is at issue … . Accordingly, the circumstances of a case may allow such a demand even in the absence of express statutory authority … . We agree with the conclusion reached by the other Departments that such circumstances are not limited to those cases where a plaintiff has retained a vocational rehabilitation expert to establish damages, although, generally, such testing “might well be unduly burdensome”… .

… [Plaintiff] placed his ability to work in controversy by claiming that, as a result of his injuries, he suffered loss of future wages and reduced earning capacity and by testifying at his examination before trial that his future career opportunities were limited … . Hayes v Bette & Cring, LLC, 2016 NY Slip Op 00090, 3rd Dept 1-7-16

LABOR LAW (PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)/NEGLIGENCE (PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPDERT)/CIVIL PROCEDURE (PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)/VOCATIONAL REHABILITATION EXPERT (LABOR LAW, PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)/DISCLOSURE (LABOR LAW, PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)

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FIREFIGHTER RULE DID NOT PRECLUDE ACTION BY POLICE OFFICER STEMMING FROM A FALL AT THE OFFICE; GENERAL MUNICIPAL LAW 205-e ACTION PROPERLY BASED ON ALLEGED VIOLATION OF LABOR LAW 27-a.

The Second Department determined a police officer’s common law negligence and General Municipal Law 205-e actions should not have been dismissed.  The officer tripped over an electric cord at the office.  The firefighter rule did not bar the suit because the injury was not the result of the heightened risk associated with police work. The General Municipal Law 205-e cause of action was correctly based upon an alleged violation of Labor Law 27-a:

Here, the defendants failed to establish, prima facie, that the firefighter rule barred the plaintiffs’ cause of action alleging common-law negligence. The injured plaintiff’s injury did not occur during an act in furtherance of a police function which exposed her to a heightened risk of sustaining that injury. The performance of her duties merely furnished the occasion for the injury. Furthermore, the defendants failed to establish, prima facie, that they did not have constructive notice of the condition complained of … . Therefore, the Supreme Court erred in directing dismissal of the plaintiffs’ common-law negligence cause of action.

The Supreme Court also erred in dismissing the plaintiffs’ cause of action pursuant to General Municipal Law § 205-e. General Municipal Law § 205-e permits a police officer to assert a tort claim against a fellow officer or an employer. To establish a cause of action under General Municipal Law § 205-e, a police officer plaintiff must (1) identify the statute or ordinance with which the defendant failed to comply, (2) describe the manner in which the police officer was injured, and (3) set forth those facts from which it may be inferred that the defendant’s negligence directly or indirectly caused the harm … . As a prerequisite to recovery pursuant to a General Municipal Law § 205-e cause of action, “a police officer must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties” … .

Here, the plaintiffs predicate their General Municipal Law § 205-e cause of action on Labor Law § 27-a(3)(a)(1). The Supreme Court correctly determined that Labor Law § 27-a(3)(a)(1) may appropriately serve as a statutory predicate for a section 205-e cause of action, and does so here … . Kelly v City of New York, 2015 NY Slip Op 08808, 2nd Dept 12-2-15

NEGLIGENCE (POLICE OFFICER TRIPPED OVER ELECTRIC CORD AT WORK)/MUNICIPAL LAW ([POLICE OFFICER TRIPPED OVER ELECTRIC CORD AT WORK, FIREFIGHTER RULE)/FIREFIGHTER RULE (POLICE OFFICER TRIPPED OVER ELECTRIC CORD AT WORK)/GENERAL MUNICIPAL LAW 205-e (POLICE OFFICER TRIPPED OVER ELECTRIC CORD AT WORK)/LABOR LAW 27-a(3)(a)(1) (VIOLATION AS PREDICATE FOR GENERAL MUNICIPAL LAW 205-e ACTION)

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Claimant Who Cannot Afford Child Care Is Unavailable for Work and Is Not Entitled to Unemployment Insurance Benefits

The Third Department determined the claimant, who stopped working to care for her child, was not “available for work” under the Labor Law and was not, therefore, entitled to unemployment insurance benefits:

Pursuant to Labor Law § 591 (2), a claimant will not be deemed eligible to receive unemployment insurance benefits if he or she is “not ready, willing and able to work in his [or her] usual employment or in any other for which he [or she] is reasonably fitted by training and experience.” A claimant who is unable to work due to the lack of child-care arrangements may be considered to be unavailable for work for purposes of receiving unemployment insurance benefits … . Here, it is undisputed that claimant left her job to care for her son and she testified that, after she did so, her mother-in-law moved away and her husband took a job with long hours that precluded her from relying upon them for childcare. She further stated that she could not afford to put her son in day care and that he could not be placed in a Head Start program until he was three years old. In view of the foregoing, substantial evidence supports the Board’s finding that claimant was ineligible to receive benefits because she was unavailable for work. Matter of Peek (Commissioner of Labor), 2015 NY Slip Op 08029, 3rd Dept 11-5-15

 

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