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.
 

New York State's Human Rights Law bars discrimination against heterosexual individuals

New York State's Human Rights Law bars discrimination against heterosexual individuals

Brennan v Metropolitan Opera Association, Inc, 284 AD2d 66

Martha Ellen Brennan claimed that “on the basis of her [heterosexual] sexual orientation, her former employer, the Metropolitan Opera Association (Met), her former supervisor at the Met, David Kneuss, and the Met's general manager, Joseph Volpe, refused to renew her contract and subjected her to a hostile work environment, in violation of New York City law.”

The essential elements of Brennan's multiple allegations: the Met refused to renew her employment contract and subjected her to a hostile work environment because of her age, her sex and her heterosexual orientation, thereby discriminating against her in violation of:

1. 42 USC 2000e-2[a][1], prohibiting discrimination “because of ... sex”;

2. 29 USC 623[a][1], prohibiting discrimination “because of ... age”;

3. New York's Executive Law Section 296[1][a], prohibiting discrimination “because of ... sex”; and

4. New York City's Administrative Code Section 8-107, prohibiting discrimination because of “actual or perceived ... sexual orientation”.

Following the dismissal of her federal age and sex discrimination claims by the U.S. Court of Appeals, Second Circuit, (Brennan v Metropolitan Opera Association, 192 F.3d 310), Brennan commenced an action in New York State Supreme Court action on her sexual orientation discrimination claims.

The Supreme Court justice, noting that this issue was one “of first impression,” ruled that Brennan “is protected, as a heterosexual female, under the New York City law against employment discrimination based on sexual orientation.” The court explained: The fact that discrimination against heterosexuals is not as pervasive as that found against homosexuals does not change the clear wording of the municipal law nor does it lessen the impact of such prejudices on the individuals involved.

After making this finding, the Supreme Court justice granted the Mets' motion for summary judgment on the grounds that Brennan failed to show that her sexual orientation created a hostile work environment or was the reason for non-renewal of her contract. The Appellate Division affirmed the lower court's determination.

The Appellate Division said that for Brennan to prevail on her claim of a hostile work environment she must show that she was subjected to harassment based on her sexual orientation and that the harassment was so severe or pervasive as to “alter the conditions of [her] employment and create an abusive working environment,” citing Meritor Savings Bank v Vinson, 477 US 57, 67.

The Appellate Division pointed out that “first and foremost is the evidence” and Brennan “simply did not adduce sufficient evidence to sustain her claim that [the Met] created an environment hostile to heterosexuals.”

Brennan's case involved the lack of evidence sufficient to state a prima facie case of discrimination.

In contrast, “unrebutted evidence” of the complainant's prima facie case precludes administrative dismissal of unlawful discrimination charges. In Sauer v NYS Division of Human Rights Appellate Division, 285 AD2d 372, the Appellate Division annulled the New York State's Divisions of Human Rights dismissal of Vincent A. Sauer's age discrimination complaint and remanded it to the Division for an administrative hearing.

The Appellate Division said that Sauer's allegations that he was not hired because of his age and that younger Pan American Airways mechanics with less seniority, whom he specifically identified, were hired by Delta Airlines in his stead, are unrebutted by any evidence in the record.

According to the ruling, “Delta's unsigned and unsworn position statement, submitted in an attempt to settle [Sauer's] complaint,” in which Delta said that Sauer was not hired because he lacked sufficient seniority to be considered, was inadequate for that purpose.

New York City police sergeants not “management” for the purposes of the FLSA and thus entitled to payment for overtime

New York City police sergeants not “management” for the purposes of the FLSA and thus entitled to payment for overtime

Edward D. Mullins, et al v City Of New York, US Court Of Appeals, Second Circuit, Docket No. 09-3435-cv

The Fair Labor Standards Act, subject to certain exceptions, mandates overtime pay for employees who work more than 40 hours per week. Specifically, 29 U.S.C. § 207(a)(1) of the Act provides that no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce,* for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."

Noting that the FLSA exempts workers who are “employed in a bona fide executive . . . capacity” from the Act’s overtime requirement, the Second Circuit supported the United States Secretary of Labor’s holding that New York City Police Department sergeants are not “management,” and thus the sergeants “do not qualify for the “bona fide executive” exemption from the overtime pay requirements of the Fair Labor Standards Act of 1938.”

The sergeants had sued the City, alleging denial of overtime pay under the FLSA to which they were entitled for overtime they worked from April 19, 2001 to the present.

* Presumably the Circuit Court found that the New York City Police Department is an employer “engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce.” 


 

Application for unemployment insurance after resignation rejected

Application for unemployment insurance after resignation rejected

Barry v Commissioner of Labor, 284 AD2d 701

Miriam R. Barry, a part-time teacher, applied for unemployment insurance benefits after resigning from her position. The Unemployment Insurance Appeal Board ruled that Barry was disqualified from receiving unemployment insurance benefits because she voluntarily left her employment without good cause.

The Appellate Division found that substantial evidence supported the Board's decision since Barry resigned from her part-time employment as a teacher to avoid possible scheduling conflicts with any potential new employment.

Although Barry was in the process of looking for a new job, she had no firm offer of new employment at the time she resigned. Since she resigned notwithstanding the fact that “continuing work was available,” the court said that it found “no reason to disturb the Board's decision.”