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May 17, 2012

Custodian-helpers hired by Custodian-engineers employed by the NYC Department of Education are not “building service employees” within the meaning of the Labor Law


Custodian-helpers hired by Custodian-enginers employed by the NYC Department of Education are not “building service employees” within the meaning of the Labor Law
Brown v Liu, 2012 NY Slip Op 03567, Appellate Division, First Department

Supreme Court dismissed an Article 78 petition seeking an investigation of wage complaints filed by certain members of Local 94 serving as "custodian-helpers" employed New York City Department of Education [DOE] "custodian-engineers.". The Appellate Division unanimously affirmed the Supreme Court’s ruling.

The Appellate Division explained that as the union members involved served as “custodian-helpers,” they were not entitled to the prevailing wage and benefits protection under Labor Law Article 9.* Such is the case because under the "indirect system" of custodial care, the DOE employs custodian-engineers in accordance with civil service regulations. These custodian-engineers, in turn, may employ custodian-helpers.

Indeed, the relevant collective bargaining agreement for the custodian-engineers' provides that they are employees of the DOE. 

Thus, said the court, the custodian-engineers are not "contractors" and the custodian-helpers employed by them are not "building service employees" of DOE’s custodian-engineers as those terms are defined in Labor Law §230.

* Article 9 of the Labor Law is captioned “Prevailing Wage For Building Service Employees.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03567.htm

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