Determining if a private entity is required to pay its employees assigned to provide services to a public entity "prevailing wages and supplements"

Executive Cleaning Services Corporation [Cleaning] employed six individuals to perform cleaning services at the Ossining Public Library [Library] pursuant to a agreement between the parties. Library, however, "did not represent that it was a public agency or that the prevailing wage law applied" until a Cleaning employee told Library that "Cleaning had failed to provide compensation for the work performed under the contract."*  

Library then notified Cleaning that it, as a public employer subject to Article 9 of the New York State Labor Law, would withhold final payment under the agreement until the prevailing wage issue was resolved. Library also advised the Department of Labor [Department] of the employee's complaint. This resulted in the Department's Bureau of Public Work investigating the matter and concluding that the service Cleaning was providing Library was subject to the prevailing wage provisions of Article 9.

Ultimately the Commissioner of Labor affirmed, in full, its hearing officer's findings and recommendations that:

1. Assessed Cleaning for an underpayment of $16,671.57 in wages and supplements;

2. Determined that Cleaning's underpayment was non-willful "[g]iven [Cleaning's] inexperience, and [Library's] failure to provide a written contract and prevailing wage-rate schedules;" and

3. Cleaning be assessed interest at the rate of 6% per year on its underpayment, as well as a civil penalty in the amount of 5% of the underpayment and interest.

Cleaning filed a CPLR Article 78 challenging the Commissioner's decision coupled with a petition for declaratory judgment seeking, among other things, a court determination that its employees were not subject to the prevailing wage provisions of Labor Law Article 9 for services provided Library because [1] Library was not a public agency within the meaning of Labor Law §230(3) and [2] the work performed was not "construction-like" labor.

The Appellate Division agreed with Cleaning that the work performed for Library by its employees was not subject to the prevailing wage provisions of Labor Law Article 9, explaining that:

1. §17 of Article I, of the New York State Constitution provides, in pertinent part, 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;"

2. This constitutional mandate is implemented by Labor Law Article 8, which, in pertinent part, requires the payment of prevailing wages to "laborers, work[ers] or mechanics" performing construction-like labor in connection with certain public work contracts, citing Labor Law §220[3][a]; and

3. Article 9 of the Labor Law extended such prevailing wage protections to certain types of service contracts and, in particular, Labor Law §231[1] provides that "[e]very contractor shall pay a service employee under a contract for building service work a wage of not less than the prevailing wage in the locality for the craft, trade or occupation of the service employee" and  Labor Law §230[2] provides that "any person performing work in connection with the care or maintenance of an existing building ... for a contractor under a contract with a public agency** which is in excess of [$1,500]" and expressly encompasses "building cleaner[s]."

The Appellate Division, citing Matter of M.G.M. Insulation, Inc. v Gardner, 20 NY3d at 475, opined that the Court of Appeals rejected the proposition that "an entity may be considered the 'functional equivalent' of a public agency for prevailing wage purposes"***and held that "Executive Cleaning's contract with [Library] is not subject to the prevailing wage provisions of Labor Law Article 9," and annulled the Commissioner's determination.****

In the words of the court as Cleaning's agreement with Library was "not subject to the prevailing wage provisions of Labor Law Article 9, the Commissioner's determination must be annulled" and "in light of our determination, [Cleaning's] remaining contentions are academic." 

However, citing  Matter of Paladino v Board of Educ. for the City of Buffalo Pub. Sch. Dist., 183 AD3d 1043, the Appellate Division, noting that Cleaning's request for declaratory relief is not authorized in a proceeding transferred to it pursuant to CPLR 7804 (g), severed that part of its action and remitted the issue to Supreme Court "for entry of an appropriate judgment."

* The Appellate Division noted that "a payroll issue delayed the employee's payment, but the employee was eventually compensated."

** Labor Law §230 [3] defines a public agency as "the state, any of its political subdivisions, a public benefit corporation, a public authority or commission or special purpose district board appointed pursuant to law, and a board of education."

*** The Appellate Division, in a footnote in its opinion, confirmed "the existence of authority holding that, as education corporations, public libraries are generally considered to be "separate and distinct from the municipalit[ies] that created [them]."

**** Citing  Matter of Paladino v Board of Educ. for the City of Buffalo Pub. Sch. Dist., 183 AD3d 1043, the Appellate Division noted that as Cleaning's request for declaratory relief is not authorized in a proceeding transferred pursuant to CPLR 7804(g), it severed  that part of this action and remitted it to Supreme Court for entry of an appropriate judgment.

Click HERE to access the Appellate Division's decision.

 

Forfeiture of entitlement to vested retirement benefits by operation of law

Supreme Court denied the CPLR Article 78 petition filed by a former New York City police officer [Plaintiff] seeking a court order annulling the determination of the New York City Police Pension Fund [Fund] denying Plaintiff's application for vested retirement benefits. Plaintiff appealed the Supreme Court's decision, which decision was sustained by the Appellate Division. 

Plaintiff had been earlier terminated by operation of law pursuant to Public Officer Law §30(1)(e) upon his felony conviction of perjury in the first-degree. Although Plaintiff's conviction was subsequently vacated,* his application seeking reinstatement to the New York City Police Department [Department] following the vacation of his conviction was denied. 

Citing Matter of Durudogan v City of New York, 134 AD3d 452, the Appellate Division ruled that Supreme Court had correctly determined that although  Plaintiff had slightly more than 10 years of service with the Department, he forfeited any entitlement to vested retirement benefits upon his dismissal by operation of law pursuant to Public Officers Law §30(1)(e).

The court explained that notwithstanding the vacation of Plaintiff's conviction, the Department, following a hearing, determined that Plaintiff had "committed misconduct unrelated to his perjury conviction that raised serious questions regarding his fitness to serve" and denied his application for reinstatement. The Appellate Division ruled that as Plaintiff failed to appeal the Department's denial of his application for reinstatement, he "remained ineligible for any vested benefits."

Further, the Appellate Division noted that Plaintiff:

1. Failed to comply with the requirement under Administrative Code of City of NY §13-256(a)(4) that he file an application for benefits at least 30 days before "discontinuance of service;" and

2. Did not qualify under Administrative Code §13-256.1(a) to receive benefits "aside from his dismissal, since he lacked at least 20 years of service [in the New York City Police Pension Fund].

The Appellate Division also rejected Plaintiff''s contention that the forfeiture of his pension benefits was "a harsh penalty that shocks one's sense of fairness,"** because this argument was asserted for the first time on appeal and thus "is unpreserved ...  and would not be considered."

* See People v Hadid, 121 AD3d 811

** See Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222.

Click HEREto access the Appellate Division's decision in the instant appeal.

 

Audits and reports issued by the New York State Comptroller during the week ending January 29, 2021

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending January 29, 2021.

Click on the text highlighted in color to access the complete audit report.

SCHOOL DISTRICT AUDITS

New York State Comptroller Thomas P. DiNapoli today announced the following school district audits were issued.

Clyde-Savannah Central School District – Network Access Controls (Seneca County and Wayne County) District officials did not ensure that the district’s network access controls were secure. Officials did not regularly review network user accounts and permissions to determine whether they were appropriate or needed to be disabled. Sensitive information technology (IT) control weaknesses were communicated confidentially to officials. Protecting IT assets becomes more critical as the district moves to increased reliance on a remote learning environment and administrative operations due to the COVID-19 pandemic.

Van Hornesville-Owen J. Young Central School District – Financial Management (Herkimer County and Otsego County) The board and district officials did not effectively manage financial condition. The practice of over-estimating appropriations each year and annually appropriating fund balance that was not needed to finance operations contributed to the district maintaining a surplus fund balance that exceeded the statutory limit by $1.5 million and resulted in higher tax levies than necessary.

Fiscal Stress Monitoring System Report

Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System indicates that 31 school districts are susceptible to some level of fiscal stress for the school year ending on June 30, 2020. DiNapoli said “This is a time of unprecedented uncertainty as the COVID-19 pandemic continues to disrupt school district operations and finances” and urged school district leaders to closely monitor their financial conditions, "even if their fiscal stress scores were low in the early days of the crisis.”

Click HEREto access the Comptroller's report.

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