New York City contractor found to have failed to pay prevailing wages to employees working public works projects

New York City's Office of Administrative Trials and Hearings Administrative Law Judge Faye Lewis found that a contractor working on public works projects in the City of New York had failed to pay certain of its employees the "prevailing wage rates. 

Judge Lewis recommended payment of restitution to the workers, imposition of  a 25% civil penalty, and a five-year debarment form bidding on public works projects consistent with the provisions of New York State's Labor Law §220-b(3)(b)(1)].

Section 220* of the Labor Law provides that entities that enter into public works contracts with the City must pay their employees “not less than the prevailing rate of wages” for work on the public works projects and set out penalties to be paid by a contractor who willfully failed to pay prevailing wages and supplemental benefits to the contractor's workers  employed to work on public works projects. 

Judge Faye Lewis, in finding the workers were employed to work on public works projects, rejected the contractor's claim that the workers were warehouse workers and credited the worker's testimony about their performing their work "in the field".

* Section 220.3 of the Labor Law provides that entities that enter into public works contracts must pay their employees “not less than the prevailing rate of wages” for work on the public works projects".

Click HERE to access the full text of Judge Lewis' findings and recommendation in OATH Index No. 2174/21.

 

Entitlement to paid COVID related quarantine leave requires an inquiry into the specific circumstances surrounding such request for leave

Petitioners in this combined proceeding pursuant to CPLR Article 78 and action for declaratory judgment, challenged the employer's determinations regarding the individual petitioners' paid leave requests after a period of quarantine or isolation due to COVID-19. The employer moved to dismiss the petition.

Citing Matter of Spence v New York State Off. of Mental Health, 211 AD3d 1430, the Appellate Division held that "the determination as to whether an individual ... is entitled to paid quarantine leave requires an inquiry into the specific circumstances surrounding such request for leave".

Click HERE to access the Appellate Division's decision posted on the Internet.

 

U. S. Supreme Court declined to review 4th Circuit decision striking down charter school's dress code

On June 26, 2023, the United States Supreme Court declined to consider a North Carolina charter school's challenge of an appeals court's ruling striking down the charter school's dress code requiring its female students to wear skirts while attending school.

"The 4th U.S. District Court of Appeals threw out the dress code, ruling that North Carolina charter schools are "state actors" working on the government's behalf, so they can't impose rules that won't fly in traditional public schools. The ACLU and several parents of female students had sued Charger Day School, which emphasizes "traditional values" and gets 95% of its funding from the state, arguing that its dress code violated the Constitution's equal protection clause and federal anti-discrimination law, Title IX."

Source: Politico, NPR

The claimant for retirement benefits pursuant to the Retirement and Social Security Law bears the burden of proving entitlement to such claimed benefits

A correction officer [Plaintiff] for a county sheriff's department [Employer] filed an application for service retirement benefits under a special retirement plan set out in  §89-f of the Retirement and Social Security Law claiming creditable service for a period that included the period from December 10, 1990 to February 19, 2016. Based on information received from Plaintiff's Employer, the Retirement System deemed Plaintiff eligible for §89-f benefits and he began receiving retirement benefits based on such data.

A subsequent federal investigation resulted in Plaintiff's indictment and conviction of theft of funds and wire fraud stemming from Plaintiff's submission of time sheets and overtime slips indicating that he was working for Employer when he was "actually playing golf, frequenting a casino or engaging in political activities," all of which resulted in Plaintiff's defrauding Employer of approximately $200,000.

Employer advised the Office of the State Comptroller of Plaintiff's fraudulent time submissions. Ultimately the Retirement System concluded that Plaintiff had only 24.50 years of total creditable member service and discontinued his §89-f retirement allowance benefits. Plaintiff requested hearing and redetermination of the System's action.

A Hearing Officer found that the compilation of member service credit report prepared by Plaintiff's attorney failed to demonstrate that Plaintiff had achieved the 25 years of total creditable service required and, further, that neither standby hours nor overtime hours were proper for inclusion in calculating Plaintiff's total member service credit.

The Comptroller sustained the denial of Plaintiff's application for service retirement benefits whereupon Plaintiff initiated this CPLR Article 78 proceeding challenging the Comptroller's decision.

Addressing the merits of Plaintiff's appeal, the Appellate Division noted that "[t]he comptroller is charged with the responsibility of determining service credits for retirement purposes and [the] determination will be upheld if rational and supported by substantial evidence", citing Matter of Rispoli v DiNapoli, 180 AD3d 1127. Further, the court opined that "it is the [Plaintiff] who bears the burden of demonstrating entitlement to the additional retirement service credit claimed".

Rather than testifying or calling any witnesses from the Employer to attest to the fact that, even after deducting the fraudulent time entries previously reported Plaintiff still had accrued sufficient total creditable member service to retire under the provisions of Retirement and Social Security Law §89-f, Plaintiff, instead, "opted to rely upon a one-page summary of total creditable member service prepared by his attorney who, in turn, utilized a selection of [Plaintiff's] payroll records to express his opinion that Plaintiff had accrued the 25 years of total creditable member service required."

The Appellate Division, as had the Hearing Officer, observed "absent detailed testimony as to the manner in which such calculations were performed, counsel's unsubstantiated interpretation of the limited payroll records supplied was insufficient to demonstrate [Plaintiff's] entitlement to the claimed [member] service credit — regardless of the nature of the hours utilized (regular, standby or overtime)."

As Plaintiff failed to meet his burden of proof in this regard, the Appellate Division opined that "his application for retirement benefits was properly denied upon this ground."

Despite Plaintiff's arguments to the contrary, the court explained that Plaintiff ignored  the fact that he, not the Retirement System, bore the burden of proof at the administrative hearing. As Plaintiff's counsel's one-page interpretation of selected portions of Plaintiff's payroll data was insufficient to establish the total required creditable member service claimed by Plaintiff, the Appellate Division said that it "need not consider whether, as [Plaintiff] contends, his standby or overtime hours should have been included in [his] counsel's calculations" and dismissed Plaintiff's appeal.

Click HERE to access the text of the Appellate Division's decision posted on the Internet.

Reasonable statements made in the course of defending a claim of unlawful discrimination do not violate the anti-retaliation provisions of Title VII

A former employee [Petitioner] filed a complaint with the New York State Division of Human Rights [SDHR] alleging his former employer, the Office of the Attorney General [OAG], had engaged in unlawful discriminatory practices when it did not promote him to certain positions because of his age and because of religious discrimination. DSHR dismissed Petitioner's complaints, finding no probable cause to believe OAG had engaged in any unlawful discriminatory practices with respect to Petitioner's employment. In the ensuing appeal, the dismissal was affirmed (Cagino v Levine, 199 AD3d 1103.

During the pendency of the lawsuit, Petitioner submitted a Freedom of Information Law request to OAG seeking records related to the use of identification cards by certain employees — two of whom were the named defendants — to gain access to State buildings. OAG's Records Access Officer denied the request, concluding that the records were exempt under Public Officers Law §87(2)(b) because disclosure would result in an unwarranted invasion of privacy. The Records Access Officer's decision was sustained in the administrative appeal that followed.

Petitioner then filed a CPLR Article 78 appeal challenged that administrative determination and certain statements made in OAG's opposition papers, which Petitioner contended defamed him, resulting in Petitioner filing a complaint with the federal Equal Employment Opportunity Commission, which was transferred to SDHR

SDHR dismissed Petitioner's retaliation complaint, finding no probable cause to substantiate such a claim insofar as the allegedly defamatory statements, made in court papers, did not form the basis for a viable retaliation claim. Supreme Court subsequently dismissed the Petitioner's Article 78 action, concluding, as relevant here, that SDHR's finding of no probable cause was supported by a rational basis and was neither arbitrary nor capricious. Petitioner appeals.

The Appellate Division affirmed the Supreme Court's decision, holding that "SDHR's determination that there was no probable cause to support the retaliation claim is not contrary to law, nor is it arbitrary or capricious." Citing Matter of Curtis v New York State Div. of Human Rights, 124 AD3d 1117, the court noted that upon investigating a complaint, SDHR may dismiss it without a hearing "if it concludes that no probable cause exists" and that "Courts give deference to SDHR due to its experience and expertise in evaluating allegations of discrimination, and will only disturb a determination of no probable cause if it is arbitrary [and] capricious or lacks a rational basis".

In this instance, the Appellate Division noted that the dispute focused on whether OAG's statements about Petitioner in court papers filed in the FOIL proceeding constituted an adverse employment action. The court's decision notes that Petitioner "characterizes as retaliatory certain statements made by OAG in defending the denial of his FOIL request, including statements in an affirmation by an Assistant Attorney General that Petitioner:

[1] Made "increasingly and repeated hateful and alarming allegations" against the individuals to whom the records pertained; and

[2] Referred to Petitioner as a "disgruntled former employee" who had a "vendetta against" the individuals who were the subject of the records.

Explaining that in the context of a case of unlawful retaliation courts have deemed an adverse employment action to one which might have dissuaded a reasonable worker from making or supporting a charge of discrimination but have declined to do so "where the action complained of was undertaken by the employer as an "[o]rdinary defensive measure[ ] ... for the very purpose of defeating the employee's claim".

Further, the Appellate Division opined that "[r]easonable defensive measures do not violate the anti-retaliation provision of Title VII, even though such steps are adverse to the charging employee and result in differential treatment", citing United States v New York City Tr. Auth., 97 F3d at 677.

Click HERE to access the full text of the Appellate Division's decision posted on the Internet.