Tuesday, August 09, 2011

Unpaid student workers: are they volunteers or employees?

Unpaid student workers: are they volunteers or employees?
Onondaga-Cortland-Madison BOCES v McGowan, 285 AD2d 36

The Onondaga-Cortland-Madison County BOCES attempted to augment the workforce training programs available to public high school students by involving its construction technology students in the actual construction of an office building being built for the West Genesee Central School District.

Under the immediate supervision of their instructors, BOCES student workers erected exterior and interior walls, installed sheet rock and placed insulation. The commercial contractors, using skilled union workers, performed the majority of the construction work, including all plumbing, electrical, foundation, truss and roofing work.

Following a union officer's complaint, the State Labor Department held that the students could not be classified as volunteers in connection with the project and, therefore, they would be considered employees subject to the prevailing wage provisions of Labor Law Section 220.

The Department's conclusion: BOCES had failed to pay the participating students “prevailing wages and supplements.” The amount to be paid to the students was determined to be $44,012. BOCES appealed.

The Appellate Division said that the basic questions are whether the BOCES students should be considered employees of a contractor on the project. Its answer: the students should not be considered employees of the project's contractors for the following reasons:

1. Education Law Section 4606(6) provides that students participating in school-to-employment programs are not employees within the purview of the Labor Law.

2. There is a public policy to exempt unpaid student workers from classification as employees under circumstances where the primary purpose of the work is instructional training for future employment.

3. The BOCES students were not hired, were not paid or otherwise compensated for their work, did not work a regular workday, and performed no work without the direct and constant supervision of their instructors.

4. The students were assigned tasks in order to fulfill the requirements of their technology class and receive credit from their home school districts.

The Appellate Division then annulled the Labor Commissioner's determination.
 

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