| Lai Chan v Chinese-American Planning Council HomeAttendant Program, Inc. |
| 2015 NY Slip Op 25308 [50 Misc 3d 201] |
| September 9, 2015 |
| Edmead, J. |
| As corrected through Wednesday, April 20, 2016 |
[*1]
| Lai Chan et al., Individually and on Behalf of All OthersSimilarly Situated, Plaintiffs, v Chinese-American Planning Council HomeAttendant Program, Inc., Defendant. |
Supreme Court, New York County, September 9, 2015
Hogan Lovells LLP, New York City (Kenneth H. Kirschner ofcounsel), for defendant.
Serrins Fisher LLP, New York City (Liane Fisher of counsel), forplaintiffs.
[*2]In this class action suit alleging, inter alia,violations of the Labor Law, defendant Chinese-American Planning Council HomeAttendant Program, Inc. moves pursuant to CPLR 3211 (a) (1), (5) and (7) to dismissplaintiffs' complaint or, in the alternative, to compel arbitration pursuant to CPLR 7503(a).
Plaintiffs (or class members) are current and former employees of defendant, anot-for-profit corporation that provides home health care services to elderly and disabledresidents of New York City.[FN1] Plaintiffs assert claims againstdefendant for unpaid minimum wages under Labor Law § 652 and 12NYCRR 142-3.1 (count 1), unpaid overtime wages under Labor Law§ 650 and 12 NYCRR 142-3.2 (count 2), unpaid spread of hours wagesunder Labor Law § 650 and 12 NYCRR 142-3.4 (count 3), wages due andattorneys' fees, costs, and interest under Labor Law § 653 (count 4), andfailure to comply with proper notification requirements set forth in Labor Law§§ 195 and 661, and 12 NYCRR 142-3.8 (count 5). Plaintiffs alsoassert a third-party beneficiary claim for breach of contract (count 6) and unjustenrichment (count 7) for failing to properly pay plaintiffs pursuant to Public Health Law§ 3614-c, also known as the Home Care Worker Wage Parity Act (WageParity Act), and New York City's Fair Wages for New Yorkers Act, also known as theLiving Wage Law (Fair Wages Act), as required under defendant's various contracts withgovernment agencies.
A motion to dismiss pursuant to CPLR 3211 (a) (1) on the basis of a defense foundedupon documentary evidence may be{**50 Misc 3d at204} granted "only where the documentary evidence utterly refutes [thecomplaint's] factual allegations, conclusively establishing a defense as a matter of law"(Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Mill Fin., LLC v Gillett, 122AD3d 98 [1st Dept 2014]). "[D]ismissal pursuant to CPLR 3211 (a) (1) is warrantedonly if the documentary evidence submitted . . . conclusively establishes adefense to the asserted claims as a matter of law" (Mill Fin., LLC v Gillett, 122AD3d at 103; Art &Fashion Group Corp. v Cyclops Prod., Inc., 120 AD3d 436 [1st Dept2014]).
When considering a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure tostate a cause of action, the pleadings must be liberally construed (see CPLR3026; Siegmund Strauss, Inc. vEast 149th Realty Corp., 104 AD3d 401 [1st Dept 2013]) and the court must"accept the facts alleged in the pleading as true," accord plaintiffs "the benefit of everypossible favorable inference," and "determine only whether the facts as alleged fit withinany cognizable legal theory" (Siegmund Strauss, Inc. v East 149th Realty Corp.,104 AD3d at 403 [internal quotation marks omitted]; Nonnon v City of New York, 9 NY3d 825 [2007]; Leonv Martinez, 84 NY2d 83, 87-88 [1994]).
However, "allegations consisting of bare legal conclusions as well as factual claimsflatly contradicted by documentary evidence" or evidentiary material, includingaffidavits, are not presumed to be true or accorded every favorable inference (David v Hack, 97 AD3d437, 438 [1st Dept 2012]; Biondi v Beekman Hill House Apt. Corp., 257AD2d 76, 81 [1st Dept 1999], affd 94 NY2d 659 [2000]; Kliebert vMcKoan, 228 AD2d 232 [1st Dept 1996], lv denied 89 NY2d 802 [1996]),and the criterion becomes "whether the proponent of the pleading has a cause of action,not whether he has stated one" (Guggenheimer v Ginzburg, 43 NY2d 268, 275[1977]; see also Leon v Martinez, 84 NY2d 83, 88 [1994]; Ark Bryant ParkCorp. v Bryant Park Restoration Corp., 285 AD2d 143, 150 [1st Dept 2001];WFB Telecom. v NYNEX Corp., 188 AD2d 257, 259 [1st Dept 1992], lvdenied 81 NY2d 709 [1993]).
Affidavits submitted by a plaintiff may be considered for the limited purpose ofremedying defects in the complaint (Dollard v WB/Stellar IP Owner, LLC, 96 AD3d 533, 533[1st Dept 2012] [the "court may freely consider affidavits submitted by the (nonmovingparty) to remedy any defects in the complaint and the criterion is whether the proponentof the pleading has a cause of action, not whether he has stated one"], citing Leon v {**50 Misc 3d at 205}Martinez, 84 NY2d83, 88 [1994] [internal quotation marks and citation omitted]; R.H. Sanbar Projects vGruzen Partnership, 148 AD2d 316 [1st Dept 1989]; Rovello v Orofino RealtyCo., 40 NY2d 633, 635-636 [1976]; Arrington v New York Times Co., 55NY2d 433, 442 [1982]). Yet, as to affidavits submitted by the defendant/respondent,"[a]ffidavits submitted by a respondent will almost never warrant dismissal under CPLR3211 unless they 'establish conclusively that [petitioner] has no [claim or] cause ofaction' " (Lawrence vGraubard Miller, 11 NY3d 588, 595 [2008], citing Rovello v Orofino RealtyCo., 40 NY2d 633, 636 [1976]).
Defendant's contention that plaintiffs' claims require interpretation of a collectivebargaining agreement, and thus, must be submitted to the contractual grievance process,as required by section 301 of the Labor Management Relations Act (29 USC§ 185) lacks merit. Contrary to defendant's contention, plaintiffs' claimsare not preempted by section 301.
Section 301 of the Labor Management Relations Act provides that "[s]uits forviolation of contracts between an employer and a labor organization representingemployees . . . may be brought in any district court of the United Stateshaving jurisdiction of the parties, without respect to the amount in controversy or withoutregard to the citizenship of the parties" (29 USC § 185 [a]).
When "a state claim alleges a violation of a labor contract, the Supreme Court hasheld that such claim is preempted by section 301 and must instead be resolved byreference to federal law" (Vera v Saks & Co., 335 F3d 109, 114 [2d Cir2003]). Similarly, "[w]hen resolution of a state-law claim is substantially dependent uponanalysis of the terms of an agreement made between the parties in a labor contract, thatclaim must either be treated as a § 301 claim, or dismissed as pre-emptedby federal labor-contract law." (Id.)
However, not "every suit concerning employment or tangentially involving a[collective bargaining agreement] . . . is preempted by section 301"(id.).
"For example, if a state prescribes rules or establishes rights andobligations that are independent of a labor contract, actions to enforce such independentrules or rights would not be preempted by section 301. . . . Nor would astate claim be preempted if its application required mere referral to the [collectivebargaining agreement] for 'information such {**50 Misc 3d at206}as rate of pay and other economic benefits that might be helpful indetermining [*3]the damages to which a workerprevailing in a state-law suit is entitled' " (id. at 115 [citationomitted]).
In Vera, a collective bargaining agreement (CBA) between a retailer and aunion covering the retailer's shoe salespersons detailed plaintiff's commissioncompensation and the method for charging shoe returns against a salesperson'scommissions. Plaintiff filed suit alleging that the returns policy set forth in the CBA anddefendant's compliance with such policy violated the Labor Law and common lawconcerning commissions, wage deductions and charges against wages. The court foundthat the case required an interpretation of the CBA because the court had to determinewhether the CBA "embodies an agreement between the parties to alter the common lawrule regarding when commissions are earned" (id.). The court further held that,"[m]oreover," plaintiff challenged "the legality of a term of the CBA, namely, the. . . returns provision" and claimed that the provision violated the LaborLaw (id. at 115-116). Thus, the court held, plaintiff's "challenge to the lawfulnessof a term of the CBA will require substantial interpretation of the CBA" and held thatsection 301 preempted plaintiff's claim (id. at 116).
"[T]he boundary between claims requiring interpretation of a CBA and ones thatmerely require such an agreement to be consulted is elusive" (Vera, 335 F3d at115; see also e.g. Ferrara v Leticia, Inc., 2012 WL 4344164, *3, 2012 US DistLEXIS 135684, *12 [ED NY, Sept. 21, 2012, No. 09-CV-3032 (RRM)(CLP)] [same]).However, case law indicates three categories under which plaintiffs' claims have beenpreempted under section 301: (1) cases in which a plaintiff alleges that defendantviolated the CBA itself; (2) cases in which a plaintiff claims that a provision of the CBAitself violates state law; and (3) cases in which a CBA provision relevant to the plaintiff'sclaim is ambiguous, none of which apply to the first, second, third, and fourth counts ofthe complaint (Kaye v Orange Regional Med. Ctr., 975 F Supp 2d 412, 423 [SDNY 2013] [citations omitted]).
Kaye is instructive. In Kaye, the court noted how one districtcourt
"attempted to clarify this 'elusive' line by crafting a two-part test todetermine whether a claim is preempted: 'First, a court must analyze the "legal {**50 Misc 3d at 207}character" of the claim and whether it istruly independent of rights under the [CBA]. The starting point in making such adetermination is consideration of the elements of [plaintiff's] stated claims' "(Kaye, 975 F Supp 2d at 421, quoting Levy v Verizon Info. Servs. Inc.,498 F Supp 2d 586, 596 [ED NY 2007]).
" 'Second, even if the right exists independently of theCBA, the court must still consider whether it is nevertheless substantially dependent onanalysis of a [CBA]. If such dependence exists, the claim is preempted by§ 301 . . . .' " (Kaye, 975 F Supp 2d at 421,citing Levy [citations and internal quotation marks omitted].)
Here, plaintiffs' complaint alleges the following:
From 2009 to the present, defendant assigned class members to work 24-hour shifts,and required them to remain in the clients' home for the entire 24-hour period to provideservices, monitor the clients' location, and be "on call" to immediately provide services tothe client as needed; all 24 hours were compensable work hours (complaint¶¶ 28-29). Defendant had a "policy and practice of paying" class members thehourly rate "for only 12 hours of work" during such 24-hour shift, plus a flat, "per diemamount currently set at $16.95," regardless of the number of hours actually worked orwhether the class members were on call (complaint ¶¶ 30-31). Also,defendant assigned class members to work more than 40 hours per week, but had a"policy and practice" of failing to pay them overtime, as well as a "policy and practice" offailing to pay them their regular rate for all hours up to 40 in weeks they workedovertime hours (complaint ¶ 32). Defendant also had a "policy and practice" offailing to pay class members "spread of hours"[FN2] pay when they worked a spread ofhours in excess of 10 hours a day (complaint ¶ 33).[FN3]
{**50 Misc 3d at 208}The class members furtherallege that defendant required them to attend training sessions, but had a "policy andpractice" of paying only some, and not all, of the required hours (complaint ¶42).
And, defendant's pay statements given to plaintiffs failed to indicate (1) dates ofwork covered by the payment of wages, (2) rates and basis of pay, (3) whether they werepaid by the hour, shift, day, week, salary, piece, commission or other, (4) the regularhourly rate or rates of pay, (5) the overtime rate of pay, (6) the number of hours worked,and (7) number of overtime hours worked as required by Labor Law § 195and accompanying regulations, including 12 NYCRR 142-3.8.
Plaintiffs allege that under the Wage Parity Act, Public Health Law, and Fair WagesAct, defendant, as a home health care service agency, is required, as a condition of itscontract with government agencies, to certify that they are in compliance with both Acts.However, defendant failed to comply with such acts.
The "legal character" of plaintiffs' claims sound in violations of the Wage Parity Act,Public Health Law, and Fair Wages Act and the elements of such claims indicate thatthey are truly independent of rights under the CBA.
It is undisputed that article X of the CBA provides that "[e]mployees assigned as a'live in' to remain in a Patient's home for a full twenty-four hours in a day will be paid aPer Diem Rate" of $117 and that "Per Diem Rates are Paid without reference to theactual hours worked per day" (¶ 3) (emphasis added). The memorandum ofagreement (MOA) modified this provision, such that as of March 1, 2014, "Employeesassigned to clients designated as 'Live-in' cases shall be paid a minimum of twelve(12) hours per day, plus a $16.95 per diem premium" (¶ 6 [emphasis added]).Upon reading the CBA and MOA together, it appears that employees required to "remainin a Patient's home for a full twenty-four hours in a day" will be paid for 12 hours, plus$16.95, without reference to the actual hours worked for the remaining 12hours.
[1] Upon reading the complaint and CBA (and MOA), the court finds thatplaintiffs' allegations (i.e., paragraphs 28-41 regarding 24-hour work days, overtime forhours worked more{**50 Misc 3d at 209} than 40 perweek, and spread of hours pay for hours worked more than 10 per day) are notsubstantially dependent upon analysis of the terms of the CBA or MOA. Althoughdefendant's payments, in part, were "currently set" pursuant to the CBA and MOA, nosubstantial analysis of [*4]the CBA/MOA is required todetermine whether defendant's payments complied with the Labor Law or Public HealthLaw. In other words, even if defendant complied with its obligations under the CBA, it isalleged that defendant failed to meet the minimum wage and overtime standards set outunder state and local laws (see e.g. Severin v Project OHR, Inc., 2011 WL3902994, 2011 US Dist LEXIS 99839 [SD NY, Sept. 2, 2011, No. 10-Civ.-9696(DLC)]). It is also noted that the complaint's allegations (in para 15) in support of classaction treatment alleges, inter alia, that issues in this matter concern whether (1)defendant's "policy and practice of paying" class members for only 12 hours of workwhen they work a 24-hour shift violates the Labor Law minimum wage law; (2) all timeworked by class members during a 24-hour shift is compensable work time for purposesof the Labor Law; and (3) not paying overtime to class members for an extra hour ofwork for shifts exceeding 10 hours or more violates the Labor Law. However, again, thecourt need not interpret the provisions of the CBA to determine whether defendant'spayments violated the Wage Parity Act, Public Health Law, and Fair Wages Act. Nordoes the complaint cite to the CBA or MOA (Kaye, 975 F Supp 2d at 424, citingSeverin, 2011 WL 3902994, *4, 2011 US Dist LEXIS 99839, *12 ["Even ifresolving a dispute under a state law claim and the (CBA) would require addressing theprecisely same set of facts, as long as the state-law claim can be resolved withoutinterpreting the agreement itself, the claim is independent of the agreement for§ 301 pre-emption purposes"]; Polanco v Brookdale Hosp. Med.Ctr., 819 F Supp 2d 129, 134 [ED NY 2011] ["Regardless of whether the factsalleged by plaintiffs constitute a violation of the CBA, they may also make out anindependent claim under Article 19 of the Labor Law"]).
The same holds true for plaintiffs' claims regarding unpaid wages for requiredtraining meetings. Plaintiffs allege, in support of class status, that an issue exists as towhether "Defendant's policy and practice of not paying Plaintiffs . . . for allhours during which they are required to attend training meetings violates [Labor Law]minimum wage laws." (Complaint ¶ 15 [h].) Such claim is not substantiallydependent upon an{**50 Misc 3d at 210} interpretationor analysis of the CBA or MOA. Although, article XXII of the CBA requires defendantto pay class members "who are actively working for time spent in meeting the minimumtraining requirements in training programs required by the Employer." While plaintiffsallege that defendant's payments were pursuant to a "policy and practice" of paying themfor "some but not all of the required training hours," plaintiffs do not allege that suchterm of the CBA is invalid, and no analysis or interpretation of this CBA term isrequired.
Nor does plaintiffs' claim concerning the inadequacy of defendant's pay statementswarrant interpretation of the CBA or MOA, and is dependent solely on the LaborLaw.
Defendant concedes that plaintiffs omitted any reference to the CBA and MOA inthe complaint ("Plaintiff's complaint conspicuously omits any mention of the CBA,relying only characterizations of [defendant's] 'policy and practice' regarding wages"[mem of law at 7]). However, plaintiffs are not "required to plead the CBA" in theircomplaint, and they are "master[s] of [their] complaint, and . . . may assertstate law causes of action without reliance on the CBA" (Kaye v Orange RegionalMed. Ctr., 975 F Supp 2d 412, 419 [SD NY 2013] [stating, "it is inappropriate for acourt to consider a CBA in evaluating a motion to dismiss claims not dependent on theCBA and where no facts about the CBA are alleged in a plaintiff's complaint"]).
[*5]Thus, dismissal of the complaint on the ground that plaintiffs' claims are preemptedby section 301 is denied.[FN4] Defendant's request, in the alternative,that the court compel arbitration under CPLR 7503 (a) is denied.[FN5] Defendant's contention that plaintiffsare covered by a separate arbitration clause requiring the submission of all state lawclaims to arbitration lacks merit.
"A CBA cannot preclude a lawsuit concerning individual statutory rights unless thearbitration clause in the agreement is 'clear[ ] and unmistakable[ ]' that the partiesintended to {**50 Misc 3d at 211}arbitrate suchindividual claims" (Tamburino vMadison Sq. Garden, LP, 115 AD3d 217, 222-223 [1st Dept 2014], citing 14Penn Plaza LLC v Pyett, 556 US 247, 251 [2009]).
" 'A "clear and unmistakable" waiver exists where one of tworequirements is met: (1) if the arbitration clause contains an explicit provision wherebyan employee specifically agrees to submit all causes of action arising out of hisemployment to arbitration; or (2) where the arbitration clause specifically references orincorporates a statute into the agreement to arbitrate disputes. Arbitration clauses thatcover "any dispute concerning the interpretation, application, or claimed violation of aspecific term or provision" of the collective bargaining agreement do not contain therequisite "clear and unmistakable" waiver because "the degree of generality [in thearbitration provision] falls far short of a specific agreement to submit all federal claims toarbitration" ' " (Tamburino v Madison Sq. Garden, LP, 115AD3d at 223).
[2] The MOA provisions upon which defendant relies provide that
"[t]he Parties agree that given the changes in federal and state lawimposing new obligations on the Employer and exposing the Employer to a significantlyincreased level of litigation, it is in the interest of the Union, Employees, and theEmployer to develop an expeditious and effective alternative dispute resolutionprocedure for the resolution of claims arising under such laws. Accordingly. . . the parties shall meet in good faith to negotiate such an alternativedispute resolution procedure. If the parties are unable to agree to such a procedure in theallotted time, the Employer may submit the dispute to Martin F. Scheinman for final andbinding arbitration." (MOA ¶ 24.)
"If a party claims that a term [of this MOA] is non-compliant [with theWage Parity Act], the parties will immediately meet to discuss appropriate modificationsto bring the MOA into compliance with the Wage Parity [Act]. In the event the partiescannot resolve their dispute, the matter shall be referred to Martin F. Scheinman forresolution through binding arbitration" (MOA ¶ 22).[*6]
"If the Employer maintains that it has insufficient funds to comply on atemporary basis with the{**50 Misc 3d at 212} economicterms of this Memorandum of Agreement, the Employer shall immediately communicatewith the Union and the parties will meet within 5 days to discuss appropriate delays inpayment of certain economic terms of this Memorandum of Agreement (excluding basewages . . . .). If the parties are unable to reach agreement within five days ofmeeting, the matter shall be referred to Martin F. Scheinman for resolution throughbinding arbitration." (MOA ¶ 23.)
At the outset, paragraph 23 does not apply to the claims herein, as this paragraphconcerns binding arbitration over the issue of whether the defendant has "insufficientfunds to comply on a temporary basis."
Paragraph 22 does not clearly indicate an agreement to arbitrate the claims raised inthe complaint. Paragraph 22 requires binding arbitration of a claim that a term ofthe MOA fails to comply with the Wage Parity Act. Plaintiffs do not claim that any termof the MOA violates the Wage Parity Act, but that defendant's payments violate suchlaw.
Further, paragraph 24 does not constitute a "clear and unmistakable" agreement toarbitrate claims arising under federal or state law. Instead, it only obligates parties tomeet in good faith to negotiate an alternative dispute resolution procedure, and merelypermits defendant to submit a claim to arbitration. Such paragraph does not requireplaintiffs to submit a federal or state claim to arbitration.
Contrary to defendant's contention, the complaints' allegations as to whetherdefendant is a certified home health agency, plaintiffs are home health aides, plaintiffsworked on "episodes of care," plaintiffs are third-party beneficiaries of defendant'scontracts, and defendant paid plaintiffs the "minimum rate of home care aide totalcompensation," as those terms are defined under the Wage Parity Act, are not assertionsthat the terms of the MOA (as opposed to defendant's actual payments) violatethe Wage Parity Act.
Therefore, defendant's request that the court compel arbitration of the claimspursuant to the MOA in the complaint is denied.
Defendant's contention that the New York State Department of Labor's (NYSDOL)March 11, 2010 opinion letter (NY St Dept of Labor, Op No. RO-09-0169 [the opinionletter]), in which it interprets the NYSDOL Wage Order (12 NYCRR 142-3.1 [b]), barscounts 1, 2, 3, 4, 6 and 7 lacks merit.{**50 Misc 3d at213}
The opinion letter provides that
"the Department applies the same test for determining the number of hoursworked by all live-in employees [whether residential employees or non-residentialemployees] . . .
"live-in employees must be paid not less than for thirteen hours pertwenty-four hour period provided that they are afforded at least eight hours for sleep andactually receive five hours of uninterrupted sleep, and that they are afforded three hoursfor meals. If an aide does not receive five hours of uninterrupted sleep, the eight-hoursleep period exclusion is not applicable and the employee must be paid for all eighthours. Similarly, if the aide is not actually afforded three work-free hours for meals, thethree-hour meal period exclusion is not applicable" (NY St Dept of Labor, Op No.RO-09-0169 at 4 [Mar. 11, 2010]).[*7]
Contrary to defendant's contention, the opinion letter does not provide a defense toplaintiffs' claims that they are owed unpaid minimum wages, unpaid overtime, or thatdefendant is liable for breach of contract and unjust enrichment. Plaintiffs claim that allhours in a 24-hour shift in a client's home are compensable work hours, that they wereassigned to work 24-hour shifts in clients' homes, and that they were only paid for 13hours of work (plus a per diem amount of $16.95). Arguably, 12 NYCRR 142-3.1 (b)indicates that an employee who works a 24-hour shift is entitled to 24-hours pay,especially where such employee does not receive five hours of uninterrupted sleep.Further, the above portion of the section upon which defendant relies is preceded in thesame section by an explanation that "on call" time is that time during which employeesare required to remain at the prescribed workplace, awaiting the need for the immediateperformance of their assigned duties. "Employees who are 'on call' are considered to beworking during all hours that they are confined to the workplace including those hours inwhich they do not actually perform their duties" (NY St Dept of Labor, Op No.RO-09-0169 at 3 [Mar. 11, 2010]). While the complaint is silent as to whether any of theplaintiffs did not receive five hours of uninterrupted sleep, the complaint alleges thatplaintiffs, although not residential employees, were assigned 24-hour shifts, and wererequired to remain in the client's home "for the entire 24-hour period to provide services,to monitor the client's location, and be 'on call' to immediately {**50 Misc 3d at 214}provide services to the client as needed"(complaint ¶ 28).
And, although 12 NYCRR 142-2.1 provides that the minimum wage shall be paid toemployees for the time an employee is required to be available to work at a place,"residential employees" (i.e., those who live on the premises of their employer)"are not deemed to be working during normal sleeping hours merely becausethe employee is 'on call' for those hours." (NY St Dept of Labor, Op No.RO-09-0169 at 4 [Mar. 11, 2010] [emphasis added].) As pointed out by plaintiffs, theyallegedly maintain their own residences and do not live in the home of defendant.Thus, even though the opinion letter states that it applies the same test to all live-ins,whether residential or nonresidential employees, plaintiffs are allegedly not live-ins.
Further, "[a]lthough it is true that an agency's interpretation of its own regulationgenerally is entitled to deference, courts are not required to embrace a regulatoryconstruction that conflicts with the plain meaning of the promulgated language" (see Matter of Visiting Nurse Serv.of N.Y. Home Care v New York State Dept. of Health, 5 NY3d 499, 506 [2005][finding that petitioner had "the right to 'notice of the overpayment and an opportunity tobe heard' on the issue of overpayment recoupment"; funds sought to be recovered byDepartment of Health fall within the broad definition of "overpayment" and, therefore,deference to Department of Health's interpretation was not warranted under thecircumstances]; cf. Severin v Project OHR, Inc., 2012 WL 2357410, 2012 USDist LEXIS 85705 [SD NY, June 20, 2012, No. 10-Civ.-9696 (DLC)] [finding thatinterpretation of the phrase "available for work at a place prescribed by the employer" asa live-in employee who is afforded at least eight hours of sleep time and actually attainsfive hours of continuous sleep lacks any such present ability to perform work duringthose hours, did not conflict with the regulatory language]).
12 NYCRR 142-3.1 (b) provides:
"The minimum wage shall be paid for the time an employee is permitted towork, or is required to be available for work at a place prescribed by the employer, andshall include time spent in traveling to the extent that such traveling is part of the [*8]duties of the employee. However, a residentialemployee—one who lives on the premises of the employer—shall not bedeemed to be permitted to {**50 Misc 3d at 215}work orrequired to be available for work:
"(1) during his or her normal sleeping hours solely because such employeeis required to be on call during such hours; or
"(2) at any other time when he or she is free to leave the place ofemployment."
While 12 NYCRR 142-3.1 (b) provides that "residential" employees do not have tobe paid for sleep hours, to the degree defendant interprets the opinion letter as includingin this category of employees, plaintiffs, who are nonresidential employees, whopurportedly seek payment for all 24 hours, the court need not defer to such opinion letteras a basis to dismiss plaintiffs' claims.
It is noted that one court ruled that where plaintiffs did not reside or "live" in thehome of their clients, but maintained their own homes and merely served "their clients'needs sporadically overnight, the reasoning of the 2010 DOL opinion [letter] respectingthe FLSA companionship exemption does not apply. . . . [Further,] the 2010DOL opinion [letter has been found] to be 'ambiguous, at best' and not conclusive ofplaintiff's claims similar to those herein" (Andryeyeva v New York Health Care, Inc., 45 Misc 3d820, 828 [Sup Ct, Kings County 2014], citing Kodirov v Community Home Care Referral Serv., Inc., 35 Misc3d 1221[A], 2012 NY Slip Op 50808[U] [Sup Ct, Kings County 2012]).[FN6]
As such, defendants' contention, that an employer's good faith reliance onadministrative approval is a defense to liability for paying minimum wage also lacksmerit.
Thus, dismissal based on the opinion letter is denied.
Further, dismissal based on the stipulation of settlement[FN7] between defendant and the NYSDOLis denied. The stipulation was the result of an investigation by NYSDOL of defendant,and defendant agreed to "settle the claims for unpaid wages" for a certain period. Thestipulation also provides that the{**50 Misc 3d at 216}"[p]arties agree that this Stipulation shall serve as final settlement of this matter and thatno Party shall seek or take further review, action, redress or appeal of or regarding suchmatter . . . ."
Although the stipulation was "intended as settlement only of wages and/or wagebenefits found to be due to the employees set forth in the attached . . .Sheets," the sole parties to the stipulation were the NYSDOL and defendant. Neither theplaintiffs, nor the Union, were parties to this stipulation, and thus, the stipulation is notbinding upon them (see Katzenv Twin Pines Fuel Corp., 16 AD3d 133 [1st Dept 2005]).
Thus, dismissal based on the stipulation is unwarranted.
[*9]Dismissal of plaintiffs' claim that defendant failed to pay wages for training isdenied. Defendant relies on a NYSDOL August 27, 2008 opinion letter, which addresseswhether a day care center is required to pay the teachers for time spent in training, where"teachers are required to obtain 30 hours of childcare training in designated subjectsevery two years." (NY St Dept of Labor, Op No. RO-08-0020 at 1 [Aug. 27, 2008].) TheDOL opined that because the employees "attend State-mandated classes to maintain theircertification as childcare workers," such training is not unique to the day care center atissue, and thus, such employees need not be paid by the day care center for the periodthey spend in such training. (Id.) For further guidance, the DOL explained that ifthe day care center "had its own unique standards and procedures for child care inaddition to those mandated by New York State," which the employees were required toundertake, "the time spent in such training would be for the benefit of the employer, andthe employees would have to be paid for the time spent in such training."(Id.)
Here, defendant failed to establish that such opinion letter applies to plaintiffs herein.The complaint does not assert that the training required of them is "State-mandated."And, plaintiffs add, in opposition, that home health aides and personal care aidesthemselves, are not subject to any minium, yearly training requirements (mem of law at20). Thus, a liberal reading of the complaint indicates, at this juncture, that the trainingrequired and undertaken by plaintiffs was at the request of defendant. Thus, to the degreethe complaint may be read to indicate that the training required of them was for thebenefit of defendant, the August 27, 2008 opinion letter does not bar plaintiffs' unpaidtraining claim. Defendant's reliance{**50 Misc 3d at217} on Moreno v Future Care Health Servs., Inc. (2015 NY Slip Op31752[U], *6 [Sup Ct, Kings County 2015]) is misplaced, in that such decision indicatesthat the classes at issue were "required by the New York Department of Healthregulations" and plaintiff failed to provide "proof" that they there were "entitled to somepay for attending classes pursuant to the term, of defendants' employee handbook" so asto satisfy the numerosity requirement to obtain class action status. No such proof byplaintiffs is required at this juncture. Therefore, dismissal of the unpaid training claim isdenied, at this juncture.
Defendant's contention that the complaint fails to state a claim for unpaidspread-of-hours pay lacks merit. Section 142-3.4 requires that an employee "receive onehour's pay at the basic minimum hourly wage rate, in addition to the minimum wagerequired herein for any day in which: (a) the spread of hours exceeds 10 hours; (b) thereis a split shift; or (c) both situations occur." Defendant contends that the spread of hoursrequirement does not apply because the requirement only applies to employees earningminimum wage, and plaintiffs concede in the complaint that they were paid more thanthe minimum wage. However, the case on which defendant relies, Sosnowy v A. PerriFarms, Inc. (764 F Supp 2d 457 [ED NY 2011]), states that "the spread-of-hoursprovision is properly limited to enhancing the compensation of those receiving only theminimum required by law." (Id. at 474.) As plaintiffs point out, the complaintalleges that they did not receive payment for all hours worked. Thus, evenassuming, as defendant suggests, that plaintiffs were paid $136.95 for each weekday24-hour shift, in the event it is determined that plaintiffs were entitled to be paid for theentire 24-hour period, plaintiffs could not be said to have received the "minimumrequired by law."
And, upon a reading of the complaint, and assuming the allegations as true, the courtfinds that plaintiffs adequately stated claims for damages under all counts of thecomplaint. While pleadings must
"consist of 'plain and concise statements in consecutively numbered [*10]paragraphs' (CPLR 3014) and be 'sufficiently particular togive the court and parties notice of the transactions, occurrences, or series of transactionsor occurrences, intended to be proved and the material elements of each cause of actionor defense' (CPLR 3013)" (Joffe v Rubenstein, 24 {**50Misc 3d at 218}AD2d 752, 752 [1st Dept 1965]), plaintiffs' complaint containssufficiently specific allegations to give notice of the claims at issue.
As to plaintiffs' wage statement claim (count 5), the documentary evidence defendantsubmits, i.e., a paystub dated April 10, 2015 for the two-week period of March 21, 2015through April 3, 2015 is insufficient. Such paystub does not cover the entire period forwhich plaintiffs sue, and fails to indicate the "rate or rates of pay and basis thereof,whether paid by the hour, shift, day, week, salary," or "the number of overtime hoursworked," as required by Labor Law § 195 (3). Nor is this claim barred bythe stipulation (see supra at 215).
Defendant's claim that plaintiffs fail to state claims for breach of contract and unjustenrichment under the Wage Parity Act, because such act is preempted by theEmployment Retirement Income Security Act (ERISA) (29 USC § 1001et seq.) and the National Labor Relations Act (NLRA) (29 USC§ 151 et seq.), lacks merit.
Upon reading the third-party beneficiary and unjust enrichment claims, the courtfinds that plaintiffs sufficiently stated facts to support these claims. Plaintiffs allege thatdefendant entered into contracts with government agencies to pay them wages asrequired by the Wage Parity Act and Fair Wages Act (complaint ¶ 73). The recordindicates that defendant entered into contracts with "HRA" requiring defendant to payplaintiffs in compliance with the Wage Parity Act. Thus, plaintiffs, as third-partybeneficiaries of such contracts, state a claim for breach of contract (see Moreno vFuture Care Health Servs., Inc., 43 Misc 3d 1202[A], 2014 NY Slip Op50449[U] [Sup Ct, Kings County 2014] [plaintiffs are the third-party beneficiaries ofsuch agreement whereby Medicaid, Medicare, or any other government agencyremunerates the defendant for home health care services rendered by the plaintiffs])."The plaintiffs need not, at this juncture, allege the particulars of the contracts that mayhave been breached since the plaintiffs' wages must meet the minimum requirements ofthe statute enacted to protect them" (2014 NY Slip Op 50449[U], *25). As plaintiffs'claim that they were not paid in accordance with defendant's contract with certainagencies, and that defendant received the benefits of the work performed by plaintiffs attheir expense without paying all wages due, plaintiffs stated third-party beneficiarybreach of contract and unjust enrichment claims (Lynch v Upper Crust, 294AD2d 237 [1st Dept 2002]).{**50 Misc 3d at 219}
The court determines that the NLRA does not preempt the Wage Parity Act.
The Wage Parity Act "sets the minimum amount of total compensation thatemployers must pay home care aides in order to receive Medicaid reimbursements forreimbursable care provided in New York City and Westchester, Suffolk, and NassauCounties (the 'surrounding Counties')" (Concerned Home Care Providers, Inc. vCuomo, 783 F3d 77, 80 [2d Cir 2015], citing Public Health Law§ 3614-c). Such home care aides "fall into two main categories: 'homehealth' aides ('HHAs') and 'personal care' aides ('PCAs')" (Concerned Home CareProviders, Inc., 783 F3d at 81). To address the pay gap that existed between HHAsand PCAs,[FN8] theNew York Legislature enacted the Wage Parity Act, which requires "employers in NewYork City and the [*11]surrounding Counties to pay allhome care aides providing Medicaid-covered care an 'applicable minimum rate of homecare aide total compensation' in order to receive Medicaid reimbursements for that care"(Concerned Home Care Providers, Inc., 783 F3d at 81-82).
As to preemption, in accordance with the Supremacy Clause, which invalidates andprevails over any state law that conflicts with federal law, "[f]ederal preemption of a statestatute can be express or implied" (New York Bankers Assn., Inc. v City of NewYork, 119 F Supp 3d 158, 182, citing US Const, art VI, cl 2, and Gibbons vOgden, 22 US 1, 211 [1824]). Federal preemption occurs expressly, where"Congress has expressly preempted state law," or impliedly, either where "Congress haslegislated so comprehensively that federal law occupies an entire field of regulation andleaves no room for state law," or "where federal law conflicts with state law" (NewYork Bankers Assn., Inc. v City of New York, 119 F Supp 3d at 182; 520 S. Mich. Ave.Assoc., Ltd. v Shannon, 549 F3d 1119, 1125 [7th Cir 2008] ["With impliedpreemption, a state law should be sustained 'unless it conflicts with federal law or wouldfrustrate the federal scheme, or unless the courts discern from the totality of thecircumstances{**50 Misc 3d at 220} that Congresssought to occupy the field to the exclusion of the States' "]). However, thedoctrine of preemption applies only to "regulation," as opposed to proprietary laws(New York Bankers Assn., Inc. v City of New York, 119 F Supp 3d at182; ["pre-emption doctrines apply only to . . . regulation"]). Thus, the court must firstdetermine whether the Wage Parity Act is regulatory, before determining whether itconflicts with federal law.
When
" 'distinguishing between proprietary action that is immune frompreemption and impermissible attempts to regulate . . . , the key is to focuson two questions': 'First, does the challenged action essentially reflect the entity's owninterest in its efficient procurement of needed goods and services, as measured bycomparison with the typical behavior of private parties in similar circumstances? Second,does the narrow scope of the challenged action defeat an inference that its primary goalwas to encourage a general policy rather than address a specific proprietaryproblem?' " (New York Bankers Assn., Inc. v City of New York,119 F Supp 3d at 183, quoting Healthcare Assn. of N.Y. State, Inc. v Pataki, 471 F3d 87, 109[2d Cir 2006].)
[3] It is uncontested that the NLRA does not contain an express preemptionprovision (Concerned Home Care Providers, Inc.) (defendant's mem of law at26-27).
Further, the NLRA does not comprehensively occupy an entire field of regulation,but left room for state law to regulate the substantive labor standards by setting a baselinefor employment negotiations, while retaining the ability to regulate the bargainingprocess (Concerned Home Care Providers, Inc. at 85 ["The statute's concern with'establishing an equitable process for determining terms and conditions ofemployment' does not extend to the 'particular substantive terms of thebargain that is struck' "; "states have traditionally possessed 'broad authorityunder their police powers to regulate the employment relationship,' and the substantivelabor standards that they enact set a baseline for employment negotiations" (emphasisadded)]). Indeed, "pre-emption should not be lightly inferred . . . , since theestablishment of labor standards falls within the traditional police power of the State"(Fort Halifax Packing Co. v Coyne, 482 US 1, 21 [1987]).{**50 Misc 3d at 221}
Nor can it be said that the Wage Parity Act conflicts with the NLRA. Instead, the"Wage Parity Law is a valid exercise of New York's authority to set minimum laborstandards" (Concerned Home Care Providers, Inc. at 85).
[*12]Defendant's reliance on the "Machinists" doctrine, established by the UnitedStates Supreme Court in Machinists v Wisconsin Empl. Relations Commn. (427US 132 [1976]), and application of this doctrine by the Seventh Circuit in 520 S.Mich. Ave. Assoc., Ltd. v Shannon (549 F3d 1119 [7th Cir 2008]), ismisplaced.[FN9]The Machinists preemption "applies to conduct the NLRA left unregulated"(Healthcare Assn. of N.Y. State v Pataki, 471 F3d at 107). Although it wasinitially sought "to determine whether certain weapons of bargaining neither protected by§ 7 nor forbidden by § 8 (b) [of the NLRA] could be subjectto state regulation, [i]t has been used more recently to determine the validity of state rulesof general application that affect the right to bargain or to self-organization" (520 S.Mich. Ave. Assoc., Ltd. v Shannon, 549 F3d at 1126).
The court in 520 S. Mich. Ave. Assoc., Ltd. concluded that the statute inquestion, the "Attendant Amendment" to the One Day Rest in Seven Act, did not havethe general applicability of typical minimum labor standard laws, but impermissibly"overrode the local bargaining process by imposing confining requirements on oneoccupation [hotel room attendants], in one industry [the hotel industry], in one county[Cook County]," and was thus preempted by the Machinist doctrine (id. at1134). The pivotal question addressed by the court, however, was whether the AttendantAmendment established a minimum labor standard that did not interfere with collectivebargaining. The court explained,
"by regulating only one county [Cook] the state makes it possible to targetunion-heavy counties (or union-light counties), and thus reward (or punish) unionactivity. Illinois' approach further allow[ed] non-union employees to benefit from thebargaining of the union which took place, not at the bargaining table, but at thelegislature" (id. at 1133).
{**50 Misc 3d at 222}The court furtherexpounded:
"prior to passage of the Attendant Amendment, the One Day Rest in SevenAct already established a minimum labor standard for breaks, requiring employers toprovide one unpaid twenty-minute meal break, although this mandate did 'not apply toemployees for whom meal periods are established through the collective bargainingprocess.' . . . That minimum labor standard still applies in Illinois, but theAttendant Amendment sets a higher standard. Illinois argues that there is no reason that itcannot increase the minimum, but that is not what Illinois did. Rather, Illinois retained itsminimum labor standard and crafted a higher standard for a specific occupation, in aspecific industry, in a specific county. In explaining minimum labor standards, theSupreme Court spoke of the laws as establishing a 'backdrop' for their negotiations. FortHalifax, 482 U.S. at 21, 107 S. Ct. 2211. The One Day Rest in Seven Act establishedsuch a state-wide backdrop, while the Attendant Amendment overrode the localbargaining process by imposing confining requirements on one occupation, in oneindustry, in one county" (id. at 1134).
The court adopts the view taken in Concerned Home Care Providers, Inc.,which distinguished 520 S. Mich. on the ground that the Attendant Amendmentin 520 S. Mich. established " 'terms of employment that would be verydifficult for any union to [*13]bargain for,' includingdetailed break requirements and changes to the burden of proof and to damagescalculations in retaliation lawsuits" (783 F3d at 86 n 8). Such provisions represented a"substantially more targeted invasion of the bargaining process than the Wage ParityLaw's minimum compensation requirement" (id.). By adjusting the burden ofproof in retaliation cases, the Attendant Amendment "arguably interfered with both theNLRB's jurisdiction and the parties' grievance and arbitration procedures" and thus "wentbeyond prescribing minimum labor standards and arguably interfered with thecollective-bargaining process" (783 F3d at 86 n 8). The Wage Parity Act does not favoror disfavor collective bargaining (see also Concerned Home Care Providers, Inc.v Cuomo, 979 F Supp 2d 288, 304 [ND NY 2013], affd 783 F3d 77[2015] [expressly declining to follow the reasoning in 520 S. Mich., andconcluding that the Wage Parity Act "avoids Machinists pre-emption because itdoes not affect the bargaining process{**50 Misc 3d at223} itself, but rather falls within the traditional police power of the state toestablish labor standards"]).
As to defendant's argument that the Wage Parity Act intrudes upon the bargainingprocess by encouraging the lobbying of a local (as opposed to a state)governmental body, it has been noted that while employees can lobby the citygovernment for higher wages, "the ability to lobby is present 'with regard to any state lawthat substantively regulates employment conditions' " and it is not "for courts toclose political routes to workplace protections simply because those protections may alsobe the subject of collective bargaining" (Concerned Home Care Providers, Inc.,783 F3d at 87).
Further, the Wage Parity Act "may affect the package of benefits over whichemployers and employees can negotiate, but 'it does not limit the rights ofself-organization or collective bargaining protected by the NLRA, and is not preemptedby that Act' . . . [as it does not] impermissibly intrude upon thecollective-bargaining process" (Concerned Home Care Providers, Inc., 783 F3dat 86).
"Unions, individual employees, and employers therefore remain free tobargain about how to allocate total compensation between wages and other benefits andwhether a compensation rate above the January 1, 2011 level is appropriate. The WageParity Law's use of the largest collective bargaining agreement to set the 'prevailing rateof total compensation' has no more of an effect on incentives to bargain collectively thanif the Legislature wrote a rate directly into the statute." (Id. at87-88.)
As the court adopts the rationale in Concerned Home Care Providers, andholds that the NLRA does not preempt the Wage Parity Act (id. at 87), dismissalon the ground that the NLRA preempts plaintiffs' breach of contract and unjustenrichment claims is unwarranted.
As to whether ERISA preempts plaintiffs' claims, as plaintiffs concede, ERISApreempts subdivision (4) of the Wage Parity Act (see also Concerned Home CareProviders). Nevertheless, such subdivision is severable from the remaining portionsof the Wage Parity Act, and case law holds that the remaining portions are not preemptedby ERISA.
"The Wage Parity Law was enacted in Part H of chapter 59 of the 2011Session Laws of New York{**50 Misc 3d at 224} State.Section 110 of that same Part states that, if any subdivision of the act 'shall be adjudged'invalid, the judgment 'shall not . . . invalidate the remainder thereof, butshall be confined in its operation to the . . . subdivision . . .directly involved' " (Concerned Home Care Providers at88).
Thus, with subdivision (4) severed pursuant to "statutorycommand," ERISA does not preempt the remainder of the Wage Parity Act.
[*14][4] "Unlike the NLRA, ERISAcontains an express provision that preempts 'any and all State laws insofar as they maynow or hereafter relate to any employee benefit plan' " (Concerned HomeCare Providers at 88, citing 29 USC § 1144 [a] [emphasis omitted]).Thus, "a state law is preempted if 'it (1) has a connection with or (2) reference to [anERISA] plan' " (id., citing Liberty Mut. Ins. Co. v Donegan, 746F3d 497, 504 [2d Cir 2014]). However, as ERISA is designed to regulate employeewelfare and pension benefit plans by "control[ling] the administration of benefits plans"through "reporting and disclosure mandates," and does not require "employers to provideany given set of minimum benefits," the statute does not preempt state laws that have"only an indirect economic effect on ERISA plans" (Concerned Home CareProviders at 88, citing Liberty Mut., 746 F3d at 507 [internal quotation marksomitted]).
The Second Circuit in Concerned Home Care Providers explained that theWage Parity Act "gives employers freedom" to select the manner in which they pay the"minimum rate of home care aide total compensation" (id. at 89). Under the act,"[t]otal compensation" may consist of "wages and other direct compensation paid to orprovided on behalf of the employee," including "health, education, or pension benefits,supplements in lieu of benefits and compensated time off." (Id., citing PublicHealth Law § 3614-c [1] [b].)
"The statute is agnostic as to the mix of wages and benefits that employersprovide, so long as the total amount equals or exceeds the applicable minimum rate.Where, as here, 'a legal requirement may be easily satisfied through means unconnectedto ERISA plans . . . it "affect[s] employee benefit plans in too tenuous,remote, or peripheral a manner to warrant a finding that the law 'relates to' theplan." ' " (Concerned Home Care Providers at 89.)
{**50 Misc 3d at 225}Defendant's claim that areview of subdivision (4) is interwoven inextricably with other provisions of the WageParity Act such that the remainder portions of the Wage Parity Act must be deemedpreempted along with subdivision (4) lacks merit.
Subdivision (4) provides:
"Any portion of the minimum rate of home care aide totalcompensation attributable to health benefit costs or payments in lieu of health benefits,and paid time off, as established pursuant to subdivision three of this section shallbe superseded by the terms of any employer bona fide collective bargaining agreement ineffect as of January first, two thousand eleven, or a successor to such agreement, whichprovides for home care aides' health benefits through payments to jointly administeredlabor-management funds." (Emphasis added.)
Subdivision (3) sets forth the minimum rate of home care aide total compensation ina city with a population of one million, i.e., a certain percentage of the totalcompensation mandated by the Living Wage Law.[FN10]
Furthermore, contrary to defendant's contention, subdivisions (1) and (3) do notsufficiently "relate to" ERISA plans so as to be preempted by ERISA.{**50 Misc 3d at 226}
Subdivision (1) provides definitions of terms used in the Wage Parity Act, and asrelevant herein, defines "Total compensation" and "Prevailing rate of totalcompensation" as follows:
"(b) 'Total compensation' means all wages and other direct compensationpaid to . . . the employee including, but not limited to, wages, health,education or pension benefits, supplements in lieu of benefits and compensatedtime off . . . .
"(c) 'Prevailing rate of total compensation' means the average hourlyamount of total compensation paid to all home care aides covered by whatevercollectively bargained agreement covers the greatest number of home care aidesin a city with a population of one million or more. For purposes of this definition, any setof collectively bargained agreements in such city with substantially the same terms andconditions relating to total compensation shall be considered as a single collectivelybargained agreement." (Emphasis added.)
Although subdivision (1) requires that home care workers be compensated pursuantto the "prevailing rate of total compensation," if that rate is higher than New York City'sLiving Wage Law, and such prevailing rate of total compensation would include benefitplans referenced in the collective bargaining agreement as described in the subdivision,the mere reference to "pension benefits" as one of the several forms of compensation istoo tenuous. Indeed, a similar argument by the plaintiff in Concerned Home CareProviders, Inc. (at 88-89), that the Wage Parity Act "has a 'connection with' ERISAplans because employers will have to reevaluate, and possibly enhance, their benefitspackages in order to pay employees the 'applicable minimum rate of home care aide totalcompensation' " was rejected by the Second Circuit; the Second Circuit notedthat the "Supreme Court and this [c]ourt have held that such an indirect effect on ERISAplans does not trigger preemption. Instead, only statutes that 'mandate[ ] employeebenefit structures or their administration' have impermissible 'connection[s] with' ERISAplans." Here, there is no indication that agencies will be "forced" or "mandated" tomodify or restructure their benefit plans to comply with the Wage Parity Act.
Nor is subdivision (4) critical to the regulatory scheme. Even "without subdivisionfour, the Wage Parity Law will still accomplish the legislative purpose of aligning homecare aide [*15]compensation in the New York Citymetropolitan area" (Concerned Home Care Providers, Inc. at 88).
{**50 Misc 3d at 227}As noted by ConcernedHome Care Providers, Inc.,
"In order to trigger ERISA preemption, a statute must not merely mentionor allude to an ERISA plan, but must also have some relationship to ERISA plans oraffect ERISA plans in some manner. . . . [The Supreme] Court has reservedpreemption based on 'reference[s] to' ERISA plans for situations where 'a State's law actsimmediately and exclusively upon ERISA plans . . . , or where the existenceof ERISA plans is essential to the law's operation' " (Concerned Home CareProviders, Inc. at 90).
A review of the subdivisions of the Wage Parity Actdemonstrates that it does not immediately or exclusively act upon ERISA; nor is theexistence of any ERISA plan essential to the operation of the Wage Parity Act.
While the preempted subdivision (4) is in part, dependent upon subdivision (3),subdivision (3) is not so dependent, and may effect the purposes of the Act withoutreference to subdivision (4).
"The creation of ERISA plans by SEIU 1199's collective bargainingagreement has no more than a remote bearing on the Wage Parity Law's operation.Employers are not required to match the benefits in SEIU 1199's collective bargainingagreement, or to provide benefits at all. Indeed, employers need not even calculate thebenefits in SEIU 1199's plan. Instead, the Wage Parity Law requires the Commissionerof the New York State Department of Health to calculate an 'hourly amount of totalcompensation' and promulgate that rate to employers" (Concerned Home CareProviders at 90, citing Public Health Law § 3614-c [1] [c]; [8][emphasis omitted]).
"This calculation converts all of the benefits from SEIU 1199'scollective bargaining agreement—including those contained in its ERISAplans—into a single hourly figure. It is that final rate, and not its component parts,that constitutes the 'applicable minimum rate of home care aide totalcompensation.' " (Id.) The Wage Parity Act would operate in preciselythe same way even if SEIU 1199's collective bargaining agreement did not cover ERISAplans at all. The Wage Parity Act, then, "functions irrespective of . . . theexistence of an ERISA plan." (Id.)
Therefore, dismissal on the ground that ERISA preempts plaintiffs' claims isdenied.{**50 Misc 3d at 228}
Based on the foregoing, it is hereby ordered that the motion by defendant pursuant toCPLR 3211 (a) (1), (5) and (7) to dismiss plaintiffs' complaint or, in the alternative, tocompel arbitration pursuant to CPLR 7503 (a) is denied in its entirety.
Footnote 1:It is undisputed thatplaintiffs are represented by 1199 SEIU United Healthcare Workers East (the Union).
Footnote 2:"Spread of hours" isdefined as the "the interval between the beginning and end of the workday." (Bauin v Feinberg, 6 Misc 3d1038[A], 2005 NY Slip Op 50343[U], *5 [Civ Ct, NY County 2005], citing 12NYCRR 138-4.13.)
Footnote 3:Specifically as toplaintiff Lai Chan (Chan), the class members allege that she worked between three andfive consecutive 24-hour shifts each week for a total of 72 to 120 hours of work perweek. For weekday 24-hour shifts, Chan was only paid an hourly rate of $11.10 per hourfor 12 hours of work each shift, and a flat per diem payment of $16.95 for each 24-hourshift. She received no hourly compensation for hours worked over 12 during a 24-hourshift (complaint ¶ 34). As a result of defendant's "policies and practices," Chan wasnot paid the statutorily required minimum wage for hours up to 40, the required overtimerate of pay for hours she worked in excess of 40 in a week, or her regular rate for allhours worked up to 40 in a week (complaint ¶ 35).
Footnote 4:Defendant's contention,that plaintiffs' claims must be submitted to the grievance process, as required by thefederal Labor Management Relations Act, rests on the theory of preemption. Thus, thecourt rejects defendant's claim that plaintiffs' failure to assert compliance with thegrievance process is fatal to their claims.
Footnote 5:Pursuant to CPLR 3211(a) (5), a party may move for dismissal on the ground that "the cause of action may not bemaintained because of arbitration and award." Dismissal on this alternative ground isdenied, for the reasons stated herein.
Footnote 6:The opinion letterfurther indicates that "[a] different opinion might result if the circumstances statedtherein change, if the facts provided were not accurate, or if any other relevant fact wasnot provided." (NY St Dept of Labor, Op No. RO-09-0169 at 4 [Mar. 11, 2010].) Suchstatement renders the opinion letter's connection to the plaintiffs "ambiguous at best"(Melamed v Americare Certified Special Servs., Inc., 2014 NY Slip Op33296[U], *8 [Sup Ct, Kings County 2014]).
Footnote 7:Defendant seeksdismissal of the claims to the extent they relate to the time period from 2009 throughDec. 27, 2013, which is the period covered by the stipulation.
Footnote 8:Unlike the PCAs, HHAswere required to undergo extensive training but did not benefit from the City'sLiving Wage Law, as did the PCAs. By 2010, HHAs in New York City and thesurrounding counties received a lower starting hourly wage than PCAs (ConcernedHome Care Providers, Inc. v Cuomo).
Footnote 9:Although "the SupremeCourt has developed two relevant NLRA preemption doctrines: Garmonpreemption and Machinists preemption" (520 S. Mich. Ave. Assoc., Ltd. vShannon at 1125), defendant cites only to the Machinists preemption.
Footnote 10:Subdivision (3) (a)provides as follows: (i) for the period Mar. 1, 2012 through Feb. 28, 2013, 90% of thetotal compensation mandated by the Living Wage Law of such city; (ii) for the periodMar. 1, 2013 through Feb. 28, 2014, 95% of the total compensation mandated by theLiving Wage Law of such city; (iii) for the period after Mar. 1, 2014, the totalcompensation shall be "no less than the prevailing rate of total compensation as of" Jan.1, 2011, or "the total compensation mandated by the living wage law of such city,whichever is greater."
Subdivision (3) (b) sets forth the minimumrate of home care aide total compensation in the counties of Nassau, Suffolk andWestchester as follows: (i) for the period Mar. 1, 2013 through Feb. 28, 2014, 90% ofthe total compensation mandated by the Living Wage Law as set on Mar. 1, 2013 of acity with a population of a million or more; (ii) for the period Mar. 1, 2014 through Feb.28, 2015, 95% of the total compensation mandated by the Living Wage Law as set onMar. 1, 2014 of a city with a population of a million or more; (iii) for the period Mar. 1,2015 through Feb. 28, 2016, 100% of the total compensation mandated by the LivingWage Law as set on Mar. 1, 2015 of a city with a population of a million or more; (iv)for all periods after Mar. 1, 2016, the lesser of (i) 115% of the total compensationmandated by the Living Wage Law as set on Mar. 1 of each succeeding year of a citywith a population of one million or more; or (ii) the total compensation mandated by theLiving Wage Law of Nassau, Suffolk or Westchester County, based on the location ofthe episode of care.