Ovadia v. Office of the Indus. Bd. of Appeals

• Decision Date: 01 May 2012
• Citation: 19 N.Y.3d 138,969 N.E.2d 202,946 N.Y.S.2d 86,2012 N.Y. Slip Op. 03358
• Parties: In the Matter of Eyal OVADIA et al., Appellants, v. OFFICE OF the INDUSTRIAL BOARD OF APPEALS et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

19 N.Y.3d 138

969 N.E.2d 202

946 N.Y.S.2d 86

2012 N.Y. Slip Op. 03358

In the Matter of Eyal OVADIA et al., Appellants,

v.OFFICE OF the INDUSTRIAL BOARD OF APPEALS et al., Respondents.

Court of Appeals of New York.

May 1, 2012.

D'Agostino, Levine, Landesman & Lederman, LLP, New York City (Bruce H. Lederman of counsel), for appellants.

Eric T. Schneiderman, Attorney General, New York City (Richard Dearing, Barbara D. Underwood and Leslie B. Dubeck of counsel), for respondents.

National Employment Law Project, New York City (Sarah Leberstein and Catherine K. Ruckelshaus of counsel), for Mason Tenders' District Council of Greater New York and Long Island, amicus curiae.

OPINION OF THE COURT

GRAFFEO, J.

The sole issue on this appeal is whether a general contractor acted as a joint employer of masonry workers, who were employed by one of its subcontractors, thereby owing unpaid wages to the subcontractor's workforce.

In 2006, a real estate developer hired HOD Construction Corp. (HOD) to act as general contractor for the construction of two multifamily residences in Queens. HOD entered into a subcontract with Well Built Construction Corp. (Well Built) for the masonry work on the project. Pursuant to the subcontracting agreement, HOD paid Well Built and, in turn, Well Built paid the wages of its workers. Well Built employed approximately 22 laborers, who worked various hours and brought their own tools to the job. The masonry workers were supervised by Well Built's principal, Martin Bruten, and another individual who allegedly worked as a foreman or supervisor for Well Built. ¹ The owner of HOD, Eyal Ovadia, visited the work site several times a day but spoke only with Bruten or the foreman; he did not directly supervise Well Built's workforce.

Bruten periodically underpaid the laborers for the work they performed and, about three months into the project, he abandoned the job and ceased paying his workers. After Bruten failed to return to the job site, a group of masonry workers—most of whom spoke little English—arrived at HOD's headquarters demanding to be paid and threatening to leave the project. Ovadia spoke privately with one of the workers, Inocencio Reyes Navarrete, but there is now a dispute as to the content of that conversation and any representations made. Navarrete testified before a hearing officer of the respondent Office of the Industrial Board of Appeals (the Board) that Ovadia told him “not to worry about it, that there are two floors that need to be finished, that keep working, that he [Ovadia] will pay us.” Ovadia, on the other hand, stated that he did not promise to pay Well Built's workers but advised Navarrete that the workers needed to speak with Bruten. Ovadia further claimed that he made several attempts to reach Bruten by telephone but was unsuccessful.

Navarrete alleged that, following the conversation with Ovadia, he informed the other Well Built laborers that Ovadia agreed to pay their wages if they finished the job. Therefore, the laborers returned to the job site and continued to work on the project for another six days. On the seventh day, Ovadia hired a new masonry subcontractor with a different work crew, and Well Built's employees were removed from the site without payment.

Upon the filing of a claim for unpaid wages by the Well Built employees, respondent New York State Department of Labor (DOL) conducted an investigation and issued an order concluding that HOD assumed the status of an “employer” of Well Built's workers, as that term is defined in the Labor Law. DOL ordered HOD to pay over $117,000, which represented past-due wages covering the three-month period, including the six days the workers remained on the job after Bruten's departure, along with penalties and interest.² HOD sought administrative review and, after a hearing, the Board upheld the DOL's order, holding that HOD and Well Built jointly employed the workers. HOD and Ovadia then commenced this CPLR article 78 proceeding seeking to annul the Board's ruling. Upon transfer from Supreme Court, the Appellate Division confirmed the Board's determination and dismissed the petition ( Matter of Ovadia v. Office of the Indus. Bd. of Appeals, 81 A.D.3d 457, 918 N.Y.S.2d 56 [1st Dept.2011] ). We granted leave to appeal (17 N.Y.3d 702, 929 N.Y.S.2d 92, 952 N.E.2d 1087 [2011] ).

Labor Law § 190 defines the term “employer” as “includ[ing] any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service” (Labor Law § 190[3] ). An “employee” is described in the statute as “any person employed for hire by an employer in any employment” (Labor Law § 190 [2] ). Furthermore, to be “employed” under the Labor Law means that a person is “permitted or suffered to work” (Labor Law § 2[7] ).³

Despite these seemingly broad definitions, we have recognized that in the typical general contractor/subcontractor context, a general contractor is not an employer of its subcontractors' employees ( see Duda v. Rouse Constr. Corp., 32 N.Y.2d 405, 409, 345 N.Y.S.2d 524, 298 N.E.2d 667 [1973];Sweezey v. Arc Elec. Constr. Co., 295 N.Y. 306, 310–311, 67 N.E.2d 369 [1946];see also Gambella v. Johnson & Sons, Inc., 285 A.D. 580, 581, 140 N.Y.S.2d 208 [2d Dept. 1955] ). As a practical matter, general contractors in the construction industry do not hire or supervise the workers employed by their subcontractors; they do not usually maintain the employment records for each worker or track the individual workers' schedules or rates of pay. The primary objective of a general contractor is to keep the project on schedule and to coordinate the work among subcontractors in order to avoid costly delays in the completion of the project. Thus, general contractors frequently interact with the principals and supervisors of the subcontractors and generally have no direct control or functional supervision over the employees performing work for the subcontractors.

Applying the federal six-factor test from Zheng v. Liberty Apparel Co. Inc. 355 F.3d 61, 72 (2d Cir.2003)⁴ for considering whether the “economic reality” between entities in a given business relationship supports the theory of “joint employment,” the Board concluded that HOD met certain factors supporting joint employer status.⁵ In reaching that conclusion, however, the Board relied on several characteristics that, if applied consistently in the construction realm, would likely render most general contractors the joint employers of their subcontractors' employees—a proposition that does not reflect the actual relationships in the construction industryFor instance, the Board stated that HOD “provided the work site and materials used by the [workers] to perform” their tasks. But this is a common occurrence at construction sites. In most commercial construction projects, the architect or owner selects the materials to be used, then pursuant to the terms of the relevant contract, the general contractor, construction manager or subcontractor orders the materials from suppliers for delivery to the job venue. Such a usual occurrence at construction projects should not determine the nature of employment relationships.

The Board also emphasized that the unpaid laborers worked full time at the project for the duration of the three-month period that HOD contracted with Well Built to do the masonry work. It is difficult to see how this fact contributes to the conclusion that HOD was a joint employer since it is to be expected that a subcontractor's workers would continue working for the term of the contract. And it appears that the Board credited Ovadia's testimony, corroborated by the workers, that, although he frequently visited the work site, he did not give directions or instructions to the laborers but communicated only with Bruten or the foreman. Inasmuch as a general contractor is expected to conduct routine quality control inspections and ensure that the coordination and sequencing of the work proceeds on schedule, this fact does not render the general contractor an employer of all workers at the job site. Hence, the Board erred as a matter of law in relying on these particular factors in reaching its determination of joint employment. Because the Board's factual findings indicate nothing more than that the usual contractor/ subcontractor relationship existed between HOD and Well Built during the three-month period that Bruten was on the job, we need not resort to federal precedent to resolve this issue. In any event, even were we to apply the Zheng test, we would hold that HOD was not a joint employer of Well Built's employees.⁶

Although we find evidence of a joint employment...