Administrative Exhaustion And Prevailing Wage Claims

In Dragone v. Bob Bruno Excavating, Inc. (2007 NY Slip Op 09481 - Decided 11/29/07), the Appellate Division, Third Department, affirmed the lower court’s decision dismissing the Plaintiff’s claims under Labor Law §220 on the ground that no private right of action for underpayment of prevailing wages exists until an administrative determination in the employee's favor has been made and has gone unreviewed or has been affirmed. Also, the Appellate Division reversed the lower court on the timeliness of Plaintiff's overtime claims under Labor Law Article 6.

Dragone worked as a laborer for several years until he was laid off in 2003. He brought an action against his former employer alleging failures to pay overtime compensation and the prevailing wage required by Labor Law § 220. The lower court denied Plaintiff's motion for summary judgment and partially granted the Defendants' cross-motion for summary judgment by dismissing the claims for unpaid overtime on statute of limitations grounds as well as the prevailing wage claims.

On appeal, the Appellate Division reversed the lower court on the overtime statute of limitations issue and affirmed dismissal of the Labor Law § 220 claims. As to the matter of overtime, the court held that the while the overtime claim under the federal Fair Labor Standards Act was time-barred (as the claim was asserted not asserted within the two year limitations period), the overtime claim under Labor Law Article 6 was timely since the underpayment occurred less than six years prior to the commencement of the action.

In affirming dismissal of the Labor Law § 220 claims, the court confirmed the well-settled rule in New York requiring administrative exhaustion prior to seeking judicial redress. Here, it appeared that the Plaintiff failed to pursue his prevailing wage claims by filing an administrative complaint with the New York State Department of Labor and, instead, sought to have those claims adjudicated by a court.

The moral of this story ... if you don't play by the rules, expect to be ejected from the game.