L. 1909, ch. 36 General Provisions 8 3 The prevailing wages are those paid persons of similar experience and standing, and an apprentice need not be paid journeyman's wages. People v. Zimmerman, (1908) 58 Misc. 264, 109 N. Y. S. 396. Rate as dependent on hours of service. The provision as to prevailing rate of wages does not require a municipality or its contractor to pay for an eight-hour day what persons in the same trade in the locality are receiving for a longer day, but requires the payment of the same proportionate wages. Op. Atty.-Gen. (1897) 333. 66 Locality." What constitutes the "locality" where the work in its completed form is to be "situated, erected or used" must depend on the facts of the particular case. In the case of a reservoir constructed in the city of Yonkers to be used as part of the water supply of New York city, it has been decided that the city of Yonkers is the locality" whose wages must control. Op. Atty.-Gen. (1912) 116, 117. 66 Proof of prevailing rate. To show a violation of this section in paying less than the prevailing rate of wages it must be shown that there was a prevailing rate, and what that rate was. People v. Coler, (1900) 58 App. Div. 347, 68 N. Y. S. 1101. localities is not controlling. 52 N. Y. S. 936. Power to determine rate. Proof as to the rate of wages paid in other The administrative officers must determine, in the case of state employees, what the prevailing rate of wages is. Op. Atty.Gen. (1914) 378. Value of maintenance as part of wages.-And where a state employee is paid a certain sum and maintenance, it is for the administrative officers to determine the value of maintenance in getting at the prevailing rate of wages. Op. Atty.-Gen. (1914) 378. Recovery in case of underpayment.-A municipal employee who continues in its employ at a rate of pay less than the prevailing local wages, and accepts the compensation offered, waives his right to claim back pay at the rate which he should have received. Ryan v. New York, (1904) 177 N. Y. 271, 69 N. E. 599, affirming 78 App. Div. 134, 79 N. Y. S. 599; Byrnes v. New York, (1912) 150 App. Div. 338, 134 N. Y. S. 759. But where a statute fixes a definite rate of pay for state employees, accepting a lower rate does not estop the employee from claiming the balance. Clark v. State, (1894) 142 N. Y. 101, 36 N. E. 817; Gilligan v. Waterford, (1895) 91 Hun 21, 36 N. Y. S. 88. The right of a city employee to recover the difference between the wages paid him and the prevailing rate of wages is not destroyed by the subsequent repeal of the statute as applied to municipal employees. McCann v. New York, (1900) 52 App. Div. 358, 65 N. Y. S. 308, affirmed (1901) 166 N. Y. 587, 59 N. E. 1125, holding that the employee had a contract right which could not be impaired, and also that under the Statutory Construction Law the rights of the employee were preserved. That decision did not cite but in effect overruled Bock v. New York, (1900) 31 Misc. 55, 64 N. Y. S. 777, holding that a city employee had no contract rights which were preserved. Release of claim for underpayment.-A public officer who exacts the signing of a release, by a person about to accept municipal employment, whereby the wages of the employee are fixed and a claim for underpayment of the prevailing wages is released, violates this section and is liable to the penalties fixed by section 4. Op. Atty.-Gen. (1907) 580. 2. Compensation for Overtime Right to extra compensation for time in excess of statutory limit: see 65 L. R. A. 46 note. Generally. In an opinion rendered to the superintendent of public buildings, April 7, 1899, the attorney-general said: "It is not the intention or $ 4 General Provisions L. 1909, ch. 36 purpose of the act to interfere with a willing arrangement between employer and employed, but rather to provide that no extra labor can be required in excess of eight hours on the part of the employer, and that for such eight hours of labor the laborer shall be paid such compensation as shall amount to the prevailing rate of wages in the same trade or calling in the locality where the work is performed. If the laborer, of his own volition, being under no restraint but perfectly willing to enter into a different contract from that which the statute enables him to insist upon, makes a different arrangement, it is a matter for himself, and the statute will not be construed to interfere or change such understanding or agreement voluntarily and willingly entered into between the parties. You must, however, in every instance, pay to each laborer the prevailing rate of wages for laborers in his trade or calling in this community for such work as he may perform, and in no instance require as a condition to his employment that he perform more than eight hours work; but, as before stated, if he voluntarily perform more hours of service, with the full understanding that no extra compensation is to be received, the State will be protected from any liability in the premises." Op. Atty.Gen. (1899) 196. Necessity of contract for extra pay. This section permits an employee to refuse to work more than eight hours a day, but it does not prevent him from working more than eight hours a day, and where he does so work he can claim increased compensation only where there is an express agreement therefor, or where the circumstances are such that an agreement therefor may be implied. There is no such implied contract where one enters into an employment knowing that the customary hours are more than eight hours. McCarthy v. New York, (1884) 96 N. Y. 1, 48 Am. Rep. 601; Gray v. Hall, (1900) 32 Misc. 683, 66 N. Y. S. 500; McGraw v. Gloversville, (1898) 32 App. Div. 176, 52 N. Y. S. 916; Op. Atty.-Gen. (1897) 333. Contract for proportionate payment for parts of day.—A contract for a daily wage and "proportionately thereto for parts of a day" does not permit a recovery for overtime, as it merely means that when the employee does not work a full day he shall receive but part pay. Gray v. Hall, (1900) 32 Misc. 683, 66 N. Y. S. 500. Municipal contracts.- Under this section a municipality is prohibited from contracting for services of an employee for more than eight hours a day, and a contract for extra pay for work exceeding eight hours a day cannot be implied. Burns v. New York, (1907) 121 App. Div. 180, 105 N. Y. S. 605. Formerly municipal employees were allowed to contract for overtime work and a recovery was allowed street cleaning employees for extra work performed under an agreement for compensation, want of funds being held no defense when not pleaded. McNulty v. New York, (1901) 168 N. Y. 117, 61 N. E. 111, affirming 60 App. Div. 250, 70 N Y. S. 133. State employees.—In the case of state employees an agreement for overtime pay is prohibited and rendered invalid, except in the case of “extraordinary emergency." Op. Atty.-Gen. (1914) 378. But it has been held that this section does not preclude a recovery by an employee of one state department for extra work done for another department outside of his regular hours, there being no agreement for such overtime work. Op. Atty.-Gen. (1904) 320. When the former rule applied.—A state employee working more than eight hours a day, who accepted the fixed compensation regularly, was held to waive any right to pay for overtime. Burns v. Fox, (1904) 98 App. Div. 507, 90 N. Y. S. 254. § 4. Violations of the labor law. Any officer, agent or employee of this state or of a municipal corporation therein having a duty L. 1909, ch. 36 General Provisions 8 4 to act in the premises who violates, evades or knowingly permits the violation or evasion of any of the provisions of this chapter shall be guilty of malfeasance in office and shall be suspended or removed by the authority having power to appoint or remove such officer, agent or employee; otherwise by the governor. Any citizen of this state may maintain proceedings for the suspension or removal of such officer, agent or employee who knowingly permits the violation of any of the provisions of this chapter. Amended to read as above by L. 1916, ch. 152, § 2. The amendment affects the last sentence, which formerly read as follows: "Any citizen of this state may maintain proceedings for the suspension or removal of such officer, agent or employee or may maintain an action for the purpose of securing the cancellation or avoidance of any contract which by its terms or manner of performance violates this chapter or for the purpose of preventing any officer, agent or employee of such municipal corporation from paying or authorizing the payment of any public money for work done thereupon." This section was derived from Labor Law of 1897, § 4, as amended by L. 1899, ch. 567, § 2. Commissioner of labor to enforce provisions of article: see infra, § 21. Criminal liability for violations: see PENAL LAW, §§ 1271, 1275; and see 65 L. R. A. 50 note. Criminal liability of municipality for violation of statute regulating hours of labor: see Ann. Cas. 1913E 308 note. Discretion of officers. The fact that this section provides for the punishinent of officials knowingly permitting violations of the law has been said to indicate that they are intrusted with a personal decision subsequent to and independent of the conclusion of the labor commissioner. Op. Atty.-Gen. (1913) 576. Criminal liability of corporation for violation of Labor Law: see Ann. Cas. 1916C 465 note. Exacting release of claim for underpayment.— Proceedings may be had under this section against a municipal officer who exacts from employees a release of all claims by reason of not being paid the prevailing wages, on entering municipal employment. Op. Atty.-Gen. (1907) 580. Duty of removal as based on power of removal.— In a city where the street commissioner cannot be removed by the mayor, the mayor cannot be removed for failing to compel the observance of section 3, supra, by the street commissioner. Op. Atty.-Gen. (1906) 446. Mandamus. Before a citizen was given the right to sue under this section, it was held that he might maintain mandamus to compel municipal authorities to investigate an alleged violation of section 3 by a contractor. People v. Van Wyck, (1899) 27 Misc. 439, 59 N. Y. S. 134. Violation as ipso facto avoiding contract. Formerly it was provided that where the provisions of the Act were not complied with, a citizen might maintain an action to avoid the contract and to prevent any public money from being paid for work thereunder; and it was held that the contract was not ipso facto invalidated by such violation. People v. Coler, (1900) 56 App. Div. 98, 67 N. Y. S. 701, affirmed (1901) 166 N. Y. 1 mem. Action by citizen.- In Ewen v. Thompson-Starrett Co., (1913) 208 N. Y. 245, 101 N. E. 894, affirming 151 App. Div. 923, 135 N. Y. S. 1110, which affirmed 71 Misc. 171, 128 N. Y. S. 595, it was held that the action, formerly authorized, by a citizen to cancel a municipal contract because of violation of section 3, supra, was not a taxpayer's action or an action by the city for $$ 5,6 General Provisions L. 1909, ch. 36 breach of contract, and that the only issue in such action was whether the contractor had violated the law. In Robinson v. Brown, (1901) 166 N. Y. 159, 59 N. E. 775, reversing 49 App. Div. 508, 63 N. Y. S. 413, however, it was held that an action in equity by a citizen under this section, as it formerly read, and one based on section 1925 of the Code of Civil Procedure to prevent a waste of funds, were but one cause of action where the relief sought was the avoidance of a contract which did not contain the provisions required by section 3, and that the causes of action need not be separately numbered. The section was merely cited as the basis of an action by a citizen in MacFarlane v. Mosier, (1913) 157 App. Div. 844, 143 N. Y. S. 221, affirming 79 Misc. 460, 141 N. Y. S. 143, affirmed (1915) 215 N. Y. 727 mem; Bohnen v. Metz, (1908) 126 App. Div. 807, 111 N. Y. S. 196, affirmed (1908) 193 N. Y. 676 mem. Penal Law. It seems that in the case of an officer who cannot be removed by the governor or by a municipal officer under this section, he may be prosecuted for a misdemeanor under section 1841 of the Penal Law (formerly section 117 of the Penal Code). Op. Atty.-Gen. (1906) 446. Cited. This section has been cited as indicating that the provisions of the Labor Law apply to municipal corporations. See infra, § 18 note. The remedy of removal from office was merely stated in Erie R. Co. v. Williams, (1914) 233 U. S. 685, 34 S. Ct. 761, 58 U. S. (L. ed.) 1155, 51 L. R. A. (N. S.) 1097. The section was cited in Op. Atty.-Gen. (1911) 552; Op. Atty.-Gen. (1909) 407; Op. Atty. Gen. (1909) 824; Op. Atty.-Gen. (1903) 435; Op. Atty.-Gen. (1900) 180; Op. Atty.-Gen., Feb. 11, 1916, reported in 6 St. Dept. Rep. 494. § 5. Hours of labor in brickyards. Ten hours, exclusive of the necessary time for meals, shall constitute a legal day's work in the making of brick in brickyards owned or operated by corporations. No corporation owning or operating such brickyard shall require employees to work more than ten hours in any one day, or to commence work before seven o'clock in the morning. But overwork and work prior to seven o'clock in the morning for extra compensation may be performed by agreement between employer` and employee. This section was derived from Labor Law of 1897, § 6. Section 5 of the Labor Law of 1897 is now covered by section 6. Violation a misdemeanor: see PENAL LAW, § 1271. § 6. Hours of labor on street surface and elevated railroads Ten consecutive hours' labor, including one-half hour for dinner, shall constitute a day's labor in the operation of all street surface and elevated railroads, of whatever motive power, owned or operated by corporations in this state, whose main line of travel or whose routes lie principally within the corporate limits of cities of the first and second class. No employee of any such corporation shall be permitted or allowed to work more than ten L. 1909. ch. 36 General Provisions $ 7 consecutive hours, including one-half hour for dinner, in any one day of twenty-four hours. In cases of accident or unavoidable delay, extra labor may be performed for extra compensation. This section was derived from Labor Law of 1897, § 5, as amended by L. 1907, ch. 243, § 1. Section 6 of the Labor Law of 1897 is now covered by section 5. Violation a misdemeanor: see PENAL LAW, § 1271. Misconduct of employees on elevated railroads: see PENAL LAW, § 1983. Street railways not within section. This section does not apply to street railways whose line of travel or route does not lie principally within the corporate limits of cities of the first or second class. Gleason v. Hudson Valley R. Co., (1911) 143 App. Div. 884, 128 N. Y. S. 759. § 7. Regulation of hours of labor on steam surface and other railroads. Ten hours' labor, performed within twelve consecutive hours, shall constitute a legal day's labor in the operation of steam surface, electric, subway and elevated railroads operated within this state, except where the mileage system of running trains is in operation. No person or corporation operating any such railroad of thirty miles in length, or over, in whole or in part within this state, shall permit or require any conductor, engineer, fireman, trainman, motorman or assistant motorman, engaged in or connected with the movement of any train on any such railroad, to be or remain on duty for a longer period than sixteen consecutive hours, and whenever any such conductor, engineer, fireman, trainman, motorman or assistant motorman shall have been continuously on duty for sixteen hours he shall be relieved and not required or permitted again to go on duty until he has had at least ten consecutive hours off duty, and no such conductor, engineer, fireman, trainman, motorman or assistant motorman who has been on duty sixteen hours in the aggregate in any twenty-four hour period shall be required or permitted to continue or again go on duty without having had had at least eight consecutive hours off duty, except when by casualty occurring after he has started on his trip, and except when by accident or unexpected delay of trains scheduled to make connection with the train on which he is serving, he is prevented from reaching his terminal. The commissioner of labor shall appoint a sufficient number of inspectors to enforce the provisions of this section. Amended to read as above by L. 1913, ch. 462. Before the amendment the section heading read, "Regulation of hours of labor on steam surface and elevated railroads." This section was derived from Labor Law of 1897, § 7. |