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Volunteer or Employee: Who Is Protected by New York Labor Law? (NY)

December 30, 2021

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<p style="text-align: justify;">To fall under the class of those protected by the New York Labor Law, a plaintiff must establish that he or she was permitted or “suffered” to work on a building or structure and that they were hired by the owner, contractor, or their agent. Volunteers are generally not entitled to Labor Law protection but what is the difference between an employee and volunteer under the statute?</p>
<p style="text-align: justify;">In <a href=""><em>Garcia v. 13 W. 38, LLC</em></a>, 73 Misc. 3d 434 (N.Y. Sup. Ct. 2021), a New York trial court recently evaluated this question. Plaintiff in that case was hired by an elevator mechanic employed by Uplift Elevator Corp., to assist him in wiring an elevator. Plaintiff was injured when the mechanic accidentally activated the elevator while plaintiff was standing on top of the elevator cab.</p>
<p style="text-align: justify;">Discovery revealed that although plaintiff was compensated for his work and given an Uplift Elevator t-shirt to wear, this was done solely by the mechanic. The mechanic had no authority to hire plaintiff and was acting without his employer’s knowledge or authority in doing so. Defendants moved to dismiss the Complaint on the grounds that the Labor Law did not apply to plaintiff under the circumstances.</p>
<p style="text-align: justify;">Based on these facts, the court held that plaintiff had no reasonable basis to believe he was employed by Uplift Elevator and that no employment relationship existed with any owner, contractor, or agent on the job. The court noted that “the fact that plaintiff gained admittance to the worksite does not indicate he was ‘suffered’ to work.” The court found that since no contractual relationship existed between Uplift Elevator and plaintiff, he was considered a volunteer and trespasser with no authority to work on the premises. Accordingly, the court found that he was not entitled to Labor Law protection and dismissed the Complaint.</p>
<p style="text-align: justify;">The takeaway from <em>Garcia</em> is that New York Labor Law will not apply in cases involving workplace injuries to volunteers or those not contractually authorized to perform the work.</p>
<p style="text-align: justify;">Thank you to Gabriella Scarmato for her contribution to this post. Please contact <a href="">Andrew Gibbs</a> with any questions.</p>


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