Employee "Notice" and Employment-At-Will

Surprisingly, I've recently received several inquiries from employers and employees alike asking whether an employee is required to provide notice of resignation to the employer. In an employment-at-will state such as New York, the answer is "no."

The concept of employment-at-will is, among other things, that either the employer or the employee may terminate the employment relationship at any time. The situation may be different where there is a contractual obligation to provide notice. While it is good form and usually expected that an employee will provide sufficient notice to the employer (e.g., two weeks) to permit an orderly transition, there is generally no legal requirement that the employee do so.

Interestingly, while many employers expect to receive notice from their employees, many of them don't think twice about discharging a worker on the spot while providing 15 minutes for them to gather up their personal belongings before being escorted from the premises by security.

Go figure!

URGENT - Prevailing Wage Reminder

A reminder that on February 24, 2008, amendments to New York Labor Law Sec. 220 will take effect requiring contractors and subcontractors performing public works construction to provide written notification to field employees of the prevailing wage rate for their particular job classification. The notification must be given to each worker on their first day of work and with every subsequent pay stub.

In addition, the workers must also be provided with contact information for the New York State Department of Labor (the “NYSDOL”) at the beginning of each public job and at various times thereafter. The notification must contain a statement advising the worker that he/she has a right to contact the NYSDOL to report violations if they are not receiving proper prevailing wages and supplemental benefits for their particular job classification. Violations of the statute can result in monetary civil penalties.

I have not seen anything regarding the amendment on the NYSDOL's website. Note that the Department of Labor is getting very aggressive in enforcing Labor Law Sec. 220, and contractors risk more than ever in failing to comply with its provisions.

Lawyer Joke ... Wednesday

Ah, what the heck! I've decided to post 'em whenever I find 'em. Here's one, courtesy of my beloved wife, Kathy:

The real reason that we can't have the Ten Commandments posted in a courthouse is this: One cannot post "Thou Shalt Not Steal," "Thou Shalt Not Commit Adultery," and "Thou Shall Not Lie" in a building full of lawyers, judges and politicians .. it creates a hostile work environment.

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.