Katz v. Quality Bldg. Servs., 2009 NY Slip Op 51548(U) (N.Y. Sup. Ct. 7/6/2009)
| Decision Date | 06 July 2009 |
| Docket Number | 100574-2009 |
| Citation | 2009 NY Slip Op 51548 |
| Parties | JEFFREY KATZ AND FABIOLA COLAS, Plaintiff, v. QUALITY BUILDING SERVICES, Defendant. |
| Court | New York Supreme Court |
In this action alleging the retaliatory discharge in violation of Labor Law § 740, defendant Quality Building Services ("defendant") moves pursuant to CPLR § 3211, Labor Law § 740(6), and 22 NYCRR 130-1.1 to dismiss the complaint of the plaintiffs Jeffrey Katz ("Katz") and Fabiola Colas ("Colas") (collectively, "plaintiffs") for failure to state a cause of action and for attorneys' fees, costs and disbursements.
Plaintiffs allege that they were employed by defendant and terminated shortly thereafter for objecting to, and refusing to participate in, defendant's violation of Labor Law § 740, which prohibits an employer from taking retaliatory actions against employees who object or refuse to participate in an employer's violation of a law, rule or regulation. The U.S. Immigration and Reform Control Act of 1986 as amended in 2006 ("IRCA") requires that employers verify that each new worker hired after 1986 is authorized to work in the United States. Defendant was thus required to verify that each employee is authorized to work in the United States. IRCA also requires employers to fill out the Employment Eligibility Verification Form (the "I-9 Form"). Defendant continuously failed to check the legal employment status of applicants as required by IRCA. According to plaintiffs, defendant failed to properly document prospective and new employees pursuant to the I-9 Form. When plaintiffs objected to defendant's violation of IRCA, they were terminated in violation of Labor Law § 740.1
Defendant contends that while Labor Law 740 provides a narrow exception to New York's employment at will policy, plaintiffs' claim fails to allege two conditions precedent to suit: that the alleged violation of a law, rule or regulation was an actual violation, and that the alleged violation created and presented a substantial and specific danger to the public health or safety. Defendant argues that plaintiffs' alleged complaints, objections and refusals to participate in defendant's violation of IRCA do not implicate a substantial and specific danger to the public health or safety, so as to state a claim under Labor Law § 740.
Defendant asserts that the purpose of the I-9 Form is to verify employment eligibility and to identify documents presented by the employee. IRCA and the I-9 Form are not the type of laws, rules and regulations that implicate the substantial and specific danger to the public safety. IRCA is not a safety statute, but rather, a statute aimed at controlling and deterring illegal immigration in the United States. Courts have rejected claims based on complaints about more dangerous situations, such as parking a tanker full of hazardous chemicals on a public street and falsely documenting respiratory treatment and blood-oxygen level checks. Since the conduct was not serious enough to state a claim under Labor Law § 740, the alleged conduct here of not properly documenting new employees, is plainly insufficient.
Defendant further contends that attorneys' fees and sanctions are warranted. Labor Law § 740 permits a court, in its discretion, to award an employer reasonable attorneys' fees and costs and disbursements in the event the court determines than an action under this section was without basis in law or fact. Also, 22 NYCRR 130-1 permits the imposition of costs, including attorneys' fees and sanctions for engaging in frivolous conduct. Defendant argues that this action is without basis in law or fact, and cursory research prior to commencing this action would have shown that Labor Law § 740 does not and was not intended to provide a remedy for the type of wrong alleged in the complaint.
Plaintiffs argue that illegal immigration poses a substantial and specific danger to the public safety. Plaintiffs submit data compiled by the U.S. Government, i.e., (1) the United States Government General Accounting Office's report dated May 9, 2005 to the Chairman, Subcommittee on Immigration, Border Security and Claims Committee on the Judiciary House of Representatives (the "GOA Report on Immigration"), and (2) the United States General Accounting Office Report on Identity Fraud Before the Subcommittee on Crime, Terrorism and Homeland Security and the Subcommittee on Immigration, Border Security and Claims, Committee on the Judiciary, House of Representative dated June 25, 2002 (the "GOA Report on Fraud") (collectively, the "GOA Reports"). Plaintiffs argue that the GOA Reports demonstrate that illegal immigration results in an increase in crime and poses grave threats to the public. Thus, defendant's failure to prevent illegal immigration into this county is a substantial and specific danger to public safety. Pointing to one of the goals of the Department of Homeland Security, which is "reduce the likelihood that terrorists can enter the United States" by strengthening border security and administering immigration laws, plaintiffs contend that illegal immigration is an issue relating to serious criminal activity and national security. The GAO Report on Immigration indicates that there is an average of eight arrests per illegal alien, of which 45% were drug related, 15% were property related offenses, and 12% were violent offenses. The GAO Report on Fraud cites IRCA and indicates that illegal aliens use fraudulent documents in connection with more serious illegal activities, such as narcotics trafficking and terrorism. The I-9 Form is an important tool in combating crime terrorism. The 9/11 Report establishes that the people responsible for the nearly 3,000 deaths that day were in the United States illegally.
Plaintiffs contend that there was an actual violation a law, i.e., the violation of IRCA.The cases cited by defendant are distinguishable or not controlling, and the process of completing the I-9 Form is a small but important tool in the overall strategic objective to prevent another terrorist strike, and other crimes involving drugs, murder, rape and gun-running. As in other cases involving violations of Labor Law § 740, statutes herein were violated that could have prevented the disaster of September 11, 2001.
Plaintiffs also argue that attorneys' fees are unwarranted, as it would be ironic to award attorneys' fees and sanctions to defendant in a situation where plaintiffs were terminated from employment for attempting to prevent a continuing violation of Federal law designed to prevent crime.
Defendant argues that plaintiffs point to no authority within IRCA, its rules, regulations, or its legislative history which suggests that IRCA was meant to prevent crime. Deterring illegal immigration and preventing crime are not one in the same. Under IRCA, employers are responsible for checking documents of new employees, not for policing their employees' activities, preventing criminal activity or even verifying that the documents are authentic. Plaintiffs improperly seek to stereotype all illegal aliens as criminals and potential terrorists. Plaintiffs fail to offer any evidence that the claimed violation at issue here in any manner creates any dangerous condition. Nor do plaintiffs provide any evidence that it was a violation of IRCA or a failure to properly check the documents of a new employee led to the events of September 11, 2001. Plaintiffs also failed to show that one hijacker on the planes on September 11 was even employed in the United States without the I-9 process having been followed. The alleged failure to properly check the documents of new employees in violation of IRCA did not directly endanger the public health or safety of employees; the individuals were already here. Nor do the alleged violations by defendant injure or harm the public, so as to rise to the level of dangerous activity to implicate the protections of Labor Law § 740.
Further, plaintiffs cannot create an exception to the employment-at-will doctrine. The legislative history of Labor Law § 740 makes clear that it was meant to protect only the reporting of a specific kind of illegal activity, one that creates and presents a substantial specific danger to the public health or safety. It does not extend such protections to all reports of misconduct.
In light of the frivolous nature of plaintiffs' complaint, reasonable attorneys' fees, court costs, and disbursements should be awarded to defendant.
As relevant to the motion, New York Labor Law § 740(2) the "whistle-blowers' statute," provides, in relevant part, that an employer shall not take any retaliatory personnel action against an employee because such employee:
(a) discloses, threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety . . .
* * * * * (c) objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation.
"This section creates a cause of action in favor of an employee against whom an employer has retaliated for disclosing to a supervisor, or to a public body, a violation of law on the part of the employer, which creates and presents a substantial and specific danger to the public health or safety'" (Feinman v Morgan Stanley Dean Witter, 193 Misc 2d 496, 752 NYS2d 229 [Sup Ct New York County 2002]; see also Lore v New York Racing Assn., Inc., 12 Misc 3d 1159 [Sup Ct Nassau County 2006] [the New York Whistleblower Statute only provides protection when a violation of a law, rule, or regulation creates and presents a substantial and specific danger to the public health or safety]). In order to maintain a Labor Law § 740 claim, plaintiff must establish a violation...
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