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"Volunteer" or "Employee" Only the Labor Law Knows For Sure (NY)

March 17, 2016

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The case of <a href="" rel="">Lopez v. La Fonda Boricua, Inc.</a> illustrates how gratuitous labor can still lead to  liability under New York's labor law.  In that case, the plaintiff was working at a restaurant when he allegedly sustained injuries while using a ladder.  Although he was employed and paid by his employer to do this work, the employer had agreed to perform the work at the restaurant gratis.
The plaintiff brought suit alleging Labor Law 240(1) and 241(6) violations.  The defendant sought dismissal of these statutory claims on the basis that the plaintiff was not a covered person under the statute and was the sole proximate cause of the accident.  The defense further questioned whether the alleged Industrial Code violations were proper.
The First Department saw it differently.  Given the pay the plaintiff received, the Court could not conclude that he was a "volunteer" rather than an "employee" under Labor Law 240(1). Despite his employer's agreement to do the work for free, this was not dispositive for a paid employee.  Likewise, the defense did not establish to the court's satisfaction that the plaintiff was merely cleaning rather than performing renovation work or that he was the sole proximate cause of the accident.
On the other hand, the Court found the plaintiff over reached on the Labor Law 241(6) claim.  The three cited provisions relating to ladder maintenance were simply not applicable.  Specifically, there was no evidence that the ladder could not support four times the maximum load, and the ladder had working locking braces.
This case suggests that non-profits, churches and other organizations that accept volunteer help need to be aware of potential liability to workers who may be paid by the benefactor donating services.  Under this scenario, the "volunteer" may actually be "so employed" under the labor law provisions and case law.
Thanks to Vincent Terrasi for his contribution.
For more information, contact Denise Fontana Ricci at <a href=""></a>


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