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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. 2018 NY Slip Op 06963
Regular Panel Decision
Oct 18, 2018

International Union of Painters & Allied Trades, Dist. Council No. 4 v. New York State Dept. of Labor

This case addresses the interpretation of New York's prevailing wage law, Labor Law § 220 (3-e), concerning apprentice wages on public work projects. The International Union of Painters & Allied Trades and glazing contractors challenged the New York State Department of Labor's (DOL) policy which stipulates that apprentices must perform tasks within their registered trade classification to be paid apprentice rates. Plaintiffs argued this policy increased costs and limited on-the-job training for glazier apprentices whose curriculum included tasks classified as ironwork. The Court of Appeals reversed the Appellate Division, upholding the DOL's interpretation as rational. The Court reasoned that the statute's language was ambiguous, and the DOL's policy prevented employers from using apprentices as cheap labor outside their specific trade, thereby ensuring proper training and maintaining construction standards.

Prevailing Wage LawApprentice WagesPublic Work ProjectsGlazier ApprenticesIronworker TasksStatutory InterpretationAdministrative DeferenceLabor Law § 220Trade ClassificationWorkforce Development
References
17
Case No. ADJ1543435
Regular
Feb 04, 2013

Sergio Cordero vs. Michael Bernier dba Pacific Services, Stellrecht Company, State Compensation Insurance Fund, Uninsured Employers Benefit Trust Fund

The Workers' Compensation Appeals Board denied reconsideration, upholding the finding that the applicant was injured in the course and scope of employment with an unlicensed contractor, Michael Bernier. The Board gave great weight to the Workers' Compensation Judge's credibility determination regarding the employer's testimony. The applicant's injury occurred while he was directed by Bernier to remove solar panels from a property owned by Stellrecht Company. The Board clarified the distinction between "course of employment" and "scope of employment" in workers' compensation law to affirm the decision.

Workers' Compensation Appeals BoardPetition for ReconsiderationWCJ credibilitycourse and scope of employmentunlicensed contractoruninsured contractorgeneral-special relationshipLabor Code §2750.5B&P §7125.2Blew v. Horner
References
5
Case No. MISSING
Regular Panel Decision

Lippman v. Public Employment Relations Board

This proceeding involved the Unified Court System (UCS) challenging a determination by the Public Employment Relations Board (PERB). PERB had found that UCS violated the Taylor Law by unilaterally issuing an administrative order in December 1997 that amended regulations (22 NYCRR part 108) related to court reporters' fees for selling transcripts to litigants. The court reviewed PERB's findings that the new page-rate guidelines and a mandatory "Minute Agreement Form" constituted an improper practice by altering terms of employment. The court concluded that there was no substantial evidence to support PERB's finding that the page-rate guidelines actually limited reporters' compensation. Furthermore, while the Agreement Form did alter some aspects of employment, its impact was minimal and outweighed by UCS's broader mission to ensure understandable, uniform, timely, and affordable access to justice. Therefore, the court annulled PERB's determination and granted the petition.

Public Employment RelationsTaylor LawCourt ReportersTranscript FeesAdministrative OrderCollective BargainingTerms of EmploymentJudicial AdministrationAccess to JusticePublic Policy
References
24
Case No. MISSING
Regular Panel Decision

Claim of Lashlee v. Pepsi-Cola Newburgh Bottling

The Special Disability Fund appealed a decision by the Workers’ Compensation Board concerning a claimant's average weekly wage calculation. The claimant, injured while employed by Pepsi-Cola, also had concurrent employment with Mid-Hudson Limousine Service, Inc. and Robert H. Auchmoody Funeral Homes, Inc. A Workers’ Compensation Law Judge (WCLJ) included Auchmoody as a concurrent employer, increasing the claimant's average weekly wage. The Fund argued that Auchmoody should not be considered a "covered" employer because there was no proof of workers' compensation insurance. The Workers’ Compensation Board affirmed the WCLJ’s decision. The appellate court affirmed the Board's decision, clarifying that "covered" employment under Workers’ Compensation Law § 14 (6) refers to an employer subject to the Workers’ Compensation Law, irrespective of whether they actually carried an insurance policy, and that the law must be liberally construed in favor of employees.

Workers’ CompensationConcurrent EmploymentAverage Weekly WageCovered EmploymentIndependent ContractorSpecial Disability FundInsurance PolicyLiberal ConstructionAppellate DivisionWCLJ Decision
References
4
Case No. MISSING
Regular Panel Decision

Tri-State Employment Services, Inc. v. Mountbatten Surety Co.

The United States Court of Appeals for the Second Circuit certified a question to the New York Court of Appeals regarding whether a professional employer organization (PEO) may be a proper claimant under a labor and materials surety bond. Plaintiff Tri-State Employment Services, Inc., a PEO, provided employee leasing services to Team Star Contractors, Inc. for a construction project, covering payroll, taxes, and insurance. When Team Star failed to pay, Tri-State filed a claim with the surety, Mountbatten Surety Company, Inc., which was dismissed by the District Court. The New York Court of Appeals determined that a PEO's primary role as an administrative services provider and payroll financier creates a presumption that it does not provide labor for the purpose of a payment bond claim. The Court found that Tri-State failed to overcome this presumption by demonstrating sufficient direction and control over the workers. Consequently, the Court answered the certified question in the negative, ruling that Tri-State Employment Services, Inc. is not a proper claimant under the surety bond in the circumstances presented.

Professional Employer OrganizationSurety BondLabor and Materials BondClaimant StatusEmployee LeasingPayroll ServicesAdministrative ServicesConstruction ContractCertified QuestionNew York Law
References
16
Case No. MISSING
Regular Panel Decision

New York City Transit Authority v. New York State Public Employment Relations Board

The New York City Transit Authority (NYCTA) initiated a CPLR article 78 proceeding to challenge a June 16, 2009, determination by the New York State Public Employment Relations Board (PERB). PERB's determination reversed an earlier administrative law judge's decision, finding that the NYCTA had committed an improper labor practice by unilaterally implementing new standards for off-duty secondary employment without negotiating with the Transport Workers Union of Greater New York, Local 100. PERB directed the NYCTA to make whole certain employees and subsequently filed a cross-petition to enforce its order. The court found that PERB's determination was supported by substantial evidence, noting that an employer's restriction on nonworking time is generally a mandatory subject of negotiations under the Taylor Law. Consequently, the court confirmed PERB's determination, denied the NYCTA's petition, dismissed the proceeding on the merits, and granted PERB's cross-petition for enforcement of its remedial order.

Public EmploymentLabor RelationsCollective BargainingImproper Labor PracticeOff-Duty Secondary EmploymentCivil Service LawTaylor LawJudicial ReviewSubstantial EvidenceAdministrative Law
References
21
Case No. MISSING
Regular Panel Decision

Equal Employment Opportunity Commission v. Rappaport, Hertz, Cherson & Rosenthal, P.C.

The Equal Employment Opportunity Commission (EEOC) and Melissa Castillo brought claims of sex discrimination, retaliation, and constructive discharge against Rappaport, Hertz, Cherson & Rosenthal, P.C., William Rappaport, and Herbie Gonzalez under Title VII. Castillo sought to intervene in the EEOC's action and assert additional state and city claims, while the defendant moved to compel arbitration of Castillo's claims based on an employment arbitration agreement. The court granted Castillo's motion to intervene and permitted her state and local claims to proceed under supplemental jurisdiction. The court also granted the defendant's motion to compel arbitration for all of Castillo's claims, determining that the arbitration agreement was an employer-promulgated plan and the associated costs would not be prohibitively expensive. The EEOC's action was not stayed, as it was not a party to the arbitration agreement, but Castillo's individual proceedings were stayed pending arbitration.

Sexual HarassmentRetaliationConstructive DischargeTitle VIIArbitration AgreementInterventionEmployment DiscriminationFederal Arbitration ActSupplemental JurisdictionEEOC Enforcement Action
References
51
Case No. MISSING
Regular Panel Decision

Claim of Connon v. W.J. Grande & Sons, Inc.

Claimant's decedent, a part-time painter-laborer, collapsed and died at work from a probable myocardial infarction. The Workers’ Compensation Board awarded death benefits, concluding his death arose out of and in the course of employment. The employer's insurance carrier appealed, arguing the Board erred in its conclusion. The court, however, found substantial evidence supporting the Board's decision, including testimony from the decedent's treating physician linking the strenuous work activity of unloading sheetrock to his death. The employer's report also corroborated the decedent's work activity prior to his collapse. Consequently, the Appellate Division affirmed the Board's award of benefits.

Workers' CompensationDeath BenefitsMyocardial InfarctionStrenuous ActivityCausationMedical Expert TestimonyAppellate ReviewInsurance CarrierEmployment-Related DeathWork Injury
References
5
Case No. MISSING
Regular Panel Decision
Mar 29, 1978

Town of Huntington v. Public Employment Relations Board

This proceeding, pursuant to CPLR article 78, reviews a determination by the Public Employment Relations Board (PERB) dated March 29, 1978. PERB had certified Local 342, Long Island Public Service Employees as the representative for a unit of workers employed by the Town of Huntington. The court confirmed the determination and dismissed the proceeding on the merits. The decision noted that substantial evidence supported PERB's designation of a negotiating unit for 53 blue-collar employees and the senior beach manager. The court found a rational basis for PERB's determination, reflecting careful consideration of appropriate factors.

Public EmploymentCollective BargainingEmployee RepresentationLabor RelationsPERBNegotiating UnitBlue-collar employeesJudicial ReviewAdministrative LawGovernment Employees
References
1
Case No. MISSING
Regular Panel Decision

Loblaw, Inc. v. Employers' Liability Assurance Corp.

Loblaw, Inc., a self-insured retail chain, sued its excess insurer, Employers’ Liability Assurance Corporation, for reimbursement under a workers’ compensation policy. The dispute centered on whether Loblaw timely notified Employers’ of an employee's escalating injury claim. Loblaw initially believed the claim would not exceed its $25,000 self-retention, delaying notice until June 1972, despite warnings from its agent and mounting costs. The Supreme Court, Erie County, initially sided with Loblaw, but the Appellate Division reversed, ruling Loblaw had an ongoing obligation to notify the insurer and was derelict by May 1969. This court affirmed the Appellate Division's dismissal of Loblaw's complaint, holding that the notice given in June 1972 was too late as a matter of law, given the claim had exceeded $21,000 by December 1970.

Insurance policy interpretationWorkers' compensationExcess insuranceNotice provisionSelf-insurerTimely noticeAppellate reviewContract constructionObjective standardSubjective judgment
References
22
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