section 220 underpayment of wages exists in New York

2013Fursuant to the subject mayoral personnel orders, the City issued rules reclassifying ungraded civil service titles subject to prevailing wage bargaining under Labor Law § 220 as graded workers subject to bargaining under the New York City Collec tive Bargaining Law without complying with the procedures mandated by Civil Service Law § 20, i.e., notice, a public hearing, and approval by the State Civil Service Commission, which are applicable to those rules (see Matter of Corrigan v Joseph, 304 NY 172, 185 [1952], cert denied 345 US 924 [1953]).

2013Fursuant to the subject mayoral personnel orders, the City issued rules reclassifying ungraded civil service titles subject to prevailing wage bargaining under Labor Law § 220 as graded workers subject to bargaining under the New York City Collec tive Bargaining Law without complying with the procedures mandated by Civil Service Law § 20, i.e., notice, a public hearing, and approval by the State Civil Service Commission, which are applicable to those rules (see Matter of Corrigan v Joseph, 304 NY 172, 185 [1952], cert denied 345 US 924 [1953]).

2008Servs., 251 AD2d 11, 12 [1998]; Matter of Pyramid Co. of Onondaga v Hudacs, 193 AD2d 924 [1993]).

2005Servs., 251 AD2d 11 [1998]; Matter of Pyramid Co. of Onondaga v Hudacs, 193 AD2d 924 [1993]).

1996Thus, prevailing wage enforcement proceedings under Labor Law § 220 constitute instances where the public "interests in their resolution on the merits override [a school district's or BOCES'] interest in receiving timely notice before commencement of an action" ( Mills v County of Monroe , supra , 59 NY2d, at 311 ), and the Commissioner's failure to file a notice of claim under Education Law § 3813 (1) is not preclusive.

1996Thus, prevailing wage enforcement proceedings under Labor Law § 220 constitute instances where the public "interests in their resolution on the merits override [a school district’s or BOCES’] interest in receiving timely notice before commencement of an action” (Mills v County of Monroe, supra, 59 NY2d, at 311 ), and the Commissioner’s failure to file a notice of claim under Education Law § 3813 (1) is not preclusive.

1983It is hornbook law that the Labor Law provision applies only to workers involved in the construction, replacement, maintenance and repair of‘public works’ in a legally restricted sense of that term (Matter of Pinkwater v Joseph, 300 NY 729 ); the school bus drivers and matrons who are the subject of the instant contract proposals do not fall within the class of employees covered by the law (see, also, Matter of Golden v Joseph, 307 NY 62 ; Matter of Miele v Joseph, 305 NY 667 ).

1958We said in Flannery (p. 155) that “ In proceedings of this nature ” (emphasis supplied) the civil service definition of an employee’s duties is determinative (cf. Matter of Golden v. Joseph, 307 N. Y. 62 ).

2014The Second Circuit doubted the correctness of the District Court’s conclusion, saying: *148 “At least as plausible a reading of the statute would seem to be that when an employer agrees to be bound to pay prevailing wages pursuant to section 220 . . . that employer has agreed to pay such a wage for all work that is covered by the statute as the statute is reasonably interpreted” ( 740 F3d at 859 ).

2013In Matter of Pyramid Co. of Onondaga v New York State Dept. of Labor ( 223 AD2d 285 [1996]), the most commonly cited example of this disjunction, a highway ramp constructed by a private party pursuant to a State Department of Transportation permit was found to be a public work (id. at 287), but the Appellate Division was constrained to deem it immune from section 220’s prevailing wage requirement because, notwithstanding the state permit and the contemplated state ownership of the ramp once completed, the State had not itself contracted for the improvement (id. at 288).

1998We note that while plaintiff class can proceed on its common-law breach of contract claims for underpayment of wages and benefits (see, Fata v Healy Co., 289 NY 401 ), a private right of action for underpayment of wages does not exist under Labor Law § 220 until there has been an administrative determination pursuant to subdivision (8) that either has gone unreviewed or been affirmed in the claimants-employees’ favor (see, Matter of Yerry v Goodsell, 4 AD2d 395, 399 , affd 4 NY2d 999 ; Williamson Roofing & Sheet Metal Co. v Town of Parish, 139 AD2d 97, 104 ).

1998We note that while plaintiff class can proceed on its common-law breach of contract claims for underpayment of wages and benefits (see, Fata v Healy Co., 289 NY 401 ), a private right of action for underpayment of wages does not exist under Labor Law § 220 until there has been an administrative determination pursuant to subdivision (8) that either has gone unreviewed or been affirmed in the claimants-employees’ favor (see, Matter of Yerry v Goodsell, 4 AD2d 395, 399 , affd 4 NY2d 999 ; Williamson Roofing & Sheet Metal Co. v Town of Parish, 139 AD2d 97, 104 ).

1998We note that while plaintiff class can proceed on its common-law breach of contract claims for underpayment of wages and benefits (see, Fata v Healy Co., 289 NY 401 ), a private right of action for underpayment of wages does not exist under Labor Law § 220 until there has been an administrative determination pursuant to subdivision (8) that either has gone unreviewed or been affirmed in the claimants-employees’ favor (see, Matter of Yerry v Goodsell, 4 AD2d 395, 399 , affd 4 NY2d 999 ; Williamson Roofing & Sheet Metal Co. v Town of Parish, 139 AD2d 97, 104 ).

1998We note that while plaintiff class can proceed on its common-law breach of contract claims for underpayment of wages and benefits (see, Fata v Healy Co., 289 NY 401 ), a private right of action for underpayment of wages does not exist under Labor Law § 220 until there has been an administrative determination pursuant to subdivision (8) that either has gone unreviewed or been affirmed in the claimants-employees’ favor (see, Matter of Yerry v Goodsell, 4 AD2d 395, 399 , affd 4 NY2d 999 ; Williamson Roofing & Sheet Metal Co. v Town of Parish, 139 AD2d 97, 104 ).

1997Furthermore, the respondents’ determinations that the petitioner Nu-Con Construction was the "alter ego” of the petitioner Lapeka Construction Corp. (see generally, National Labor Relations Bd. v Amateyus, Ltd., 817 F2d 996, cert denied 484 US 925 ; Goodman Piping Prods., v National Labor Relations Bd., 741 F2d 10, 11; National Labor Relations Bd. v Watt Elec.

1995The IAS Court properly found that the determination of the Comptroller had a rational basis relying upon two Opinion Letters issued by the Corporation Counsel, that the Green-point projects, which were publicly-financed, but privately-owned and constructed, housing for low-income tenants and homeless families and individuals, did not constitute "public works” subject to the prevailing wage rate under Labor Law §220, and that the Comptroller’s determination was neither arbitrary or capricious nor affected by an error of law (Matter of Pell v Board ofEduc., 34 NY2d 222 , 231).

1991Determination unanimously modified on the law and as modified confirmed without costs, in accordance with the following Memorandum: We find that the Commissioner’s determination that petitioner failed to pay its employee the prevailing wage pursuant to Labor Law § 220 (3) is supported by substantial evidence (see generally, Matter of Berenhaus v Ward, 70 NY2d 436, 443 ).

1983Matter of Miele v Joseph ( 280 App Div 408, 409 , affd without opn 305 NY 667 ) states that “[t]he test to be applied in determining what is public work is rather function than magnitude.” (Emphasis added.) 2 An earlier decision, McAvoy v City of New York ( 52 App Div 485, 490 , affd without opn 166 NY 588 ), recites that “[t]he statute has in view the nature of the work, and not the person who procures it, to be done.” (Emphasis added.) Of more recent vintage, Varsity Tr. v Saporita ( 71 AD2d 643 , affd 48 NY2d 767 ), in discussing “public works” under section 220 holds at page 644: “Finally,

1983Matter of Miele v Joseph ( 280 App Div 408, 409 , affd without opn 305 NY 667 ) states that “[t]he test to be applied in determining what is public work is rather function than magnitude.” (Emphasis added.) 2 An earlier decision, McAvoy v City of New York ( 52 App Div 485, 490 , affd without opn 166 NY 588 ), recites that “[t]he statute has in view the nature of the work, and not the person who procures it, to be done.” (Emphasis added.) Of more recent vintage, Varsity Tr. v Saporita ( 71 AD2d 643 , affd 48 NY2d 767 ), in discussing “public works” under section 220 holds at page 644: “Finally,

1983Matter of Miele v Joseph ( 280 App Div 408, 409 , affd without opn 305 NY 667 ) states that “[t]he test to be applied in determining what is public work is rather function than magnitude.” (Emphasis added.) 2 An earlier decision, McAvoy v City of New York ( 52 App Div 485, 490 , affd without opn 166 NY 588 ), recites that “[t]he statute has in view the nature of the work, and not the person who procures it, to be done.” (Emphasis added.) Of more recent vintage, Varsity Tr. v Saporita ( 71 AD2d 643 , affd 48 NY2d 767 ), in discussing “public works” under section 220 holds at page 644: “Finally,

1983It is hornbook law that the Labor Law provision applies only to workers involved in the construction, replacement, maintenance and repair of‘public works’ in a legally restricted sense of that term (Matter of Pinkwater v Joseph, 300 NY 729 ); the school bus drivers and matrons who are the subject of the instant contract proposals do not fall within the class of employees covered by the law (see, also, Matter of Golden v Joseph, 307 NY 62 ; Matter of Miele v Joseph, 305 NY 667 ).

1983Matter of Miele v Joseph ( 280 App Div 408, 409 , affd without opn 305 NY 667 ) states that “[t]he test to be applied in determining what is public work is rather function than magnitude.” (Emphasis added.) 2 An earlier decision, McAvoy v City of New York ( 52 App Div 485, 490 , affd without opn 166 NY 588 ), recites that “[t]he statute has in view the nature of the work, and not the person who procures it, to be done.” (Emphasis added.) Of more recent vintage, Varsity Tr. v Saporita ( 71 AD2d 643 , affd 48 NY2d 767 ), in discussing “public works” under section 220 holds at page 644: “Finally,

1983Matter of Miele v Joseph ( 280 App Div 408, 409 , affd without opn 305 NY 667 ) states that “[t]he test to be applied in determining what is public work is rather function than magnitude.” (Emphasis added.) 2 An earlier decision, McAvoy v City of New York ( 52 App Div 485, 490 , affd without opn 166 NY 588 ), recites that “[t]he statute has in view the nature of the work, and not the person who procures it, to be done.” (Emphasis added.) Of more recent vintage, Varsity Tr. v Saporita ( 71 AD2d 643 , affd 48 NY2d 767 ), in discussing “public works” under section 220 holds at page 644: “Finally,