Friday, October 11, 2013

Court of Appeals Defines What Constitutes "Routine" Cleaning, Which Is Not A Labor Law Protected Activity

In Soto v. J. Crew, the Court of Appeals defined the meaning of routine cleaning within the meaning of Labor Law § 240(1).  In this action, the plaintiff fell off a ladder while dusting a six-foot shelf and was injured.  The trial court initially dismissed claims under section 240(1), holding that the statute did not cover the plaintiff’s work as a commercial cleaner employed to take routine care of a J. Crew store.  On appeal, the Appellate Division, First Department affirmed (see prior blog post).  The First Departments decision was based on a recently decided Court of Appeals case, Dehar v. Holland Ldr. & Mfg. Co., but the court later granted leave to appeal to the Court of Appeals.  At the Court of Appeals, the parties argued whether the plaintiffs dusting was a Labor Law protected activity.  

This is the first Court of Appeals decision setting out a test to determine whether a “cleaning” activity is either merely routine, which is not protected, or a covered activity under Labor Law § 240(1).  The Court enunciated four factors to guide the lower courts in making a determination as to routine cleaning activities.  Those factors are: whether the work engaged in by the injured worker 1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; 2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; 3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and 4) in light of the core purpose of Labor Law § 240(1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project.

DISCLOSURE: The above is an MLN case.  Anthony DeStefano, Esq., a partner at Mauro Lilling Naparty LLP and regular contributor to this blog represented the Defendant-Respondent in the above matter.

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