Notice of Claim | Volunteer Firefighters | Resident Janitors

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Substance Over Form – The Notice of Claim

Substance Over Form – The Notice of ClaimIn DTM Dev. Ltd. v. Yorktown Cent. Sch. Dist., the dispute arose out of a contract between plaintiff and the defendant school district to perform environmental remediation work at a district owned site. The bid specifications for the project called for the removal of approximately 400 tons of material, but during the project it became clear that an additional 216 tons of material must be removed.

Upon discovery of the additional tonnage in October 2012, the plaintiff submitted a “change order” to the school district, with a demand for $132,313 for removal of the additional tonnage. The District denied the alleged discrepancy, and on November 27, 2012 sent plaintiff a letter disapproving the change order, alleging that there was no basis for the additional monies demanded. On December 7, 2012, the plaintiff’s attorney wrote a letter explaining the basis for the additional charge and demanding payment. Ultimately, after months of negotiations, the parties were unable to reach a settlement. On October 2, 2013, the plaintiff served a notice of claim and commenced the action.

The School District moved to dismiss the Complaint, alleging that plaintiff did not abide by Education Law § 3813 which “requires a party to serve a notice of claim upon a school district within three months after the accrual of such claim as a condition precedent to the commencement of an action.” A notice of claim affords municipalities the opportunity to perform a prompt investigate into the alleged occurrence. The first step in ruling on the School District’s motion to dismiss was to determine when the cause of action accrued. “A breach of contract can be said to occur when the claimant’s bill is expressly rejected, or when the party seeking payment should have viewed his claim as having been constructively rejected.” Here, the School District sent a letter to plaintiff “disapproving” the change order and rejecting the additional charge on November 27, 2012. The Court concluded that this is the date the cause of action accrued.

Plaintiff served a formal notice of claim on October 2, 2013 — way past three months from accrual — which the court held was untimely. However, the rule with respect to “notices of claim” is one of function over form, and substantial compliance with the statutory notice provision is all that is required. “A paper which is not denominated as a notice of claim may satisfy that requirement if it provides the necessary information as to the claim, the time when, the place where, and the manner in which the claim arose.” Here, plaintiff’s attorney’s December 7, 2012 letter to the School District provided notice of the plaintiff’s claim for additional compensation demanded in the change order during the plaintiff’s remediation work. “The letter stated that the bid proposal misrepresented the weight and/or volume of soil to be removed from the site. Specifically the weight of the materials removed exceeded the contract amount by 216 tons. Notably, the letter specifies a precise monetary demand, and further threatens ‘the commencement of legal action’ in the event that the demanded payment is not made.” The Court held that under the circumstances, the letter satisfied the purpose of the notice of claim requirement, and thus the School District’s motion to dismiss was denied.

Sex Offender Screening For Volunteer Firefighters

Sex Offender Screening For Volunteer FirefightersGov. Andrew Cuomo recently signed legislation that requires prospective volunteer firefighters and those who seek transfer as a member to another fire company to be screened for sex offense conviction records. This is an amendment to the law which only required such screening for arson conviction records. The bill introduced by Sen. John Bonacic, R-Mount Hope, and assemblywoman Aileen Gunther, D-Forestburgh, requires candidates for volunteer firefighter positions to undergo a background check for sex offenses and allows the fire departments to reject them based upon an analysis of eight factors.

The bill was introduced at the request of the Firemen’s Association of the State of New York and had previously been passed by the Senate three times, but denied by the assembly committee. It now takes effect in four months.

The law provides that when such criminal history information includes conviction of a crime which requires the person to register as a sex offender under the Correction Law, a fire company must determine whether or not such person shall be eligible to be elected or appointed as a volunteer member of such fire company. Such determination must be made in accordance with the criteria already established under the Correction Law.

Presently, under N.Y. Correction Law § 752, no application for any license or employment, and no employment or license held by an individual, “shall be denied or acted upon adversely by reason of the individual’s having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of ‘good moral character’ when such finding is based upon the fact that the individual has previously been convicted of one or more criminal offenses, unless: (1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or (2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”

N.Y. Correction Law § 753 provides further guidance in making a determination pursuant to Section 752. It provides that a public agency or private employer must consider the following factors:

(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.

(b) The specific duties and responsibilities necessarily related to the icense or employment sought or held by the person.

(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.

(d) The time which has elapsed since the occurrence of the criminal offense or offenses.

(e) The age of the person at the time of occurrence of the criminal offense or offenses.

(f) The seriousness of the offense or offenses.

(g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.

(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

The law further provides that in making a determination, the public agency r private employer shall also give consideration to a certificate of relief from disabilities or a certificate of good conduct issued to the applicant, which creates a presumption of rehabilitation in regard to the offense or offenses specified therein.

Case law addressing this Correction Law analysis has established that udicial review of an administrative determination is limited to whether such determination was “arbitrary or capricious or without a rational basis.” But when all eight factors set forth above are considered in making a determination pursuant to Correction Law § 752 concerning employment of a person with a criminal conviction and the positive factors are balanced against the negative factors, the resulting decision is neither arbitrary nor capricious nor does it constitute an abuse of discretion.

No Overtime for Resident Janitors

No Overtime for Resident JanitorsThe federal Fair Labor Standards Act (“FLSA”) and the New York State Labor Law, inter alia, protects workers from employment which pays “wages insufficient to provide adequate maintenance for [the employees] and their families.” One of such law is commonly known as the State overtime. The overtime law “generally require[s] employers to pay overtime wages for all hours worked in excess of forty hours per week, so long as the employees are not exempt under one of the various statutory categories.” In light of the remedial purpose of the law, these exemptions, however, are narrowly construed against an employer.

In Koljenovic v. Marx, two “building superintendents” in two different buildings sued their common employer for overtime wages, alleging that they worked approximately 80 hours per week or “around the clock,” respectively, but only received a salary of $400 per week, plus free rent and utilities in the building, regardless of the hours they worked.

The employer-building owner argued that these two employees were not entitled to overtime wages because the plaintiffs were employed as “live-in janitors” who are exempt from the overtime provisions of the New York Labor Law. The State Department of Labor has specific regulations for the “Building Service Industry,” and exempts “a janitor in a residential building” from the overtime requirements of the law. The State regulation provides:

A janitor is a person employed to render any physical service in connection with the maintenance, care or operation of a residential building. Where there is only one employee, such employee shall be deemed the janitor. Where there is more than one employee in the building, the employer shall designate an employee who lives in the building as the janitor. No building may have more than one janitor.

Here, both plaintiffs argued that their titles were “building superintendent,” and not “janitor.” Indeed, in one of the two buildings, another employee was designated as the “janitor.” The Court rejected this argument. The plain language of the regulation provides that “[w]here there is more than one employee” in a residential building, “the janitor” for purposes of New York’s overtime regulations must be an “employee who lives in the building.” Although both employees were not called “janitors” “in the common parlance of New York City” a “building superintendent” refers to a “resident janitor.”

Plaintiffs also argued that the janitorial exemption does not apply to their work because any “janitorial work” was, at most, de minimus. “This contention rests on the incorrect assumption that janitorial work is limited to tasks such as ‘cleaning duties,’ which plaintiffs assert they performed only when the part-time janitor or porter was unavailable.” The Department of Labor has issued orders explaining that a “janitor” refers to “any physical service,” — not just cleaning. Plaintiffs’ duties included making basic plumbing and electrical repairs, maintaining boilers and preparing vacated apartments for new tenants. These are physical services. Accordingly, despite the heavy burden an employer must meet when arguing that a position is exempt from overtime laws, the employer’s motion for summary judgment was granted; plaintiffs were not entitled to overtime.

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