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October 20, 2011

Workfare with a public agency not public employment


Workfare with a public agency not public employment
McGhee v City of New York, NYS Supreme Court, Ia Part 5, Justice Stallman, 2002 N.Y. Slip Op. 50332(U), [Not selected for publication in the Official Reports]

According to the ruling by Justice Stallman in the McGhee case, individuals receiving public welfare benefits while working for the City of New York under a Work Experience Program [Workfare] are not employees for the purposes of bringing a lawsuit under the State's Human Rights Law.

McGhee alleged that she had been sexually harassed during a Workfare assignment. The City, contending that Workfare participants are not employees, moved to dismiss McGhee's complaint.*

Justice Stallman dismissed McGhee's complaint. The court decided that under the facts of this case, McGhee's Workfare participation did not create any employment relationship between the participants and the City.

The court noted that "in a different context," the Court of Appeals concluded that Workfare participants were not "employees," citing Brukhman v Giuliani, 94 NY2d 387.

In Brukhman, the Court of Appeals ruled that the prevailing wage provision of the State Constitution -- Article I, Section 17 -- does not apply to Workfare participants because participation in the Workfare program is the statutory "condition of continued receipt of public assistance grants."

Section 330.5 of the Social Services Law specifically list certain limited circumstances under which Workfare participants are deemed "public employees" and categories of "work activities" under which public assistance recipients are to be given the benefits and protections of similarly-situated employees. None applied to McGhee.

However, McGhee did have a possible remedy available to her. Justice Stallman pointed out that she "could have filed a grievance concerning the alleged sexual harassment with the New York City Human Resources Administration, the local service district under the Social Services Law" and if dissatisfied with its ruling, she could have "appealed to the State for a fair hearing."

* A federal court had previously dismissed McGhee's Title VII harassment claim after finding that she was not an employee within the meaning of the Personal Responsibility and Work Opportunity Reconciliation Act. This Act mandated adoption of "Workfare" programs by public entities.

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