Labor Law Pointers
SPECIAL EDITION
October 10, 2013
A Monthly Electronic Newsletter Addressing
New York State Labor Law
Decisions and Trends
Soto v J. Crew Inc.
October 10, 2013
Court of Appeals
I know I am a Labor Law geek but it is good to know I have company. I was merrily working away on materials for an upcoming CLE when Dan Kohane emailed me that the Court of Appeals had issued a Labor Law decision. At first I doubted him, as and my tickler had not yet kicked the decision in from Westlaw, but I have learned the hard way that not believing Dan can be a painful. I have seen it cost people, myself included, money in the past. In fact he was right and the decision was simply not up on Westlaw yet.
I love this case. It is the perfect application of logic to an otherwise illogical area of the law. Here the plaintiff, an employee of a commercial cleaning company who was assigned to clean that specific store on a daily basis was dusting a six foot high wooden shelf when he and the ladder fell over causing injury to the plaintiff. Cleaning is, of course, an enumerated activity under 240(1) of the labor law and so, the plaintiff argued; his fall from a ladder should be a covered event.
The key to this case is the question of whether this type of cleaning is a covered activity. The court refers to its decision in Dahar v Holland Ladder where it used an analogy to illustrate their decision not to extend the Labor Law to cover cleaning as a portion of the manufacturing process.
Indeed, the logic of plaintiff's argument here would expand the protections of Labor Law § 240 (1) even beyond manufacturing activities; the statute would encompass virtually every "cleaning" of any "structure" in the broadest sense of that term. Every bookstore employee who climbs a ladder to dust off a bookshelf; every maintenance worker who climbs to a height to clean a light fixture—these and many others would become potential Labor Law § 240 (1) plaintiffs. We decline to extend the statute so far beyond the purposes it was designed to serve. Dahar v Holland Ladder
The Court in Soto v J. Crew Inc. reaffirmed that commercial window washing is a covered activity, a position which makes logical sense. Commercial window washers, like construction workers, are routinely exposed to elevation related risks which the remainder of the population simply is not. The Court here lists the 4 factors to be analyzed to determine if the activity is cleaning as contemplated within the Labor Law.
Per the Court of Appeals “an activity cannot be characterized as "cleaning" under the statute, if the task: 1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; 2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; 3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and 4) in light of the core purpose of Labor Law § 240(1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project.”
The Court went on to hold that the determination of whether the task was cleaning under 240(1) is for the court and thus appropriate for a Summary Judgment decision and is not thus a decision for the jury. The court did, however, leave some discursion to the courts holding that “The presence or absence of any one is not necessarily dispositive if, viewed in totality, the remaining considerations militate in favor of placing the task in one category or the other.”
You may recall that I wrote on this same case when it came out of the First Department last year and continue to agree that it is a logical and appropriate decision. This is simply not the type of accident that the labor Law was promulgated to protect against.
PRACTICE POINT: Know the four elements necessary to determine if the cleaning is a covered task under the Labor Law. Seemingly if these four elements are present it is not a Labor Law case. The elements are; is the cleaning routine and regular, does it require specialized equipment or expertise, does it generally require insignificant elevation risk and is it unrelated to construction. While there was some discretion built into the decision, remember that this is a decision for the court and not for a jury.
David R. Adams
Hurwitz & Fine, P.C.
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Labor Law Pointers
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David R. Adams
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V. Christopher Potenza
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Labor Law Team
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Dan D. Kohane Cassandra A. Kazukenus
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Michael F. Perley Jennifer A. Ehman
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V. Christopher Potenza Marc A. Schulz
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Hurwitz & Fine, P.C.
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Suite 1300 Liberty Building
Buffalo, New York 14202
Phone: 716.849.8900
Fax: 716.855.0874
www.hurwitzfine.com
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