FriendsThe militancy of all teachers and our union in New York State would be deeply stymied by LaSalle’s chief justice ascension. Please call your elected state assembly and senator to stop this nomination. This is how the Democrats gave us Clarence Thomas. Thank you joe Biden.
Frank
Hector LaSalle is bad for NY workers
BE OUR GUEST
BY HUGH BARAN AND MIRIAM F. CLARK
Since Gov. Hochul nominated Justice Hector LaSalle to be chief judge of the Court of Appeals, his defenders have urged critics to look beyond the Cablevision vs. CWA District 1 case, which allowed corporations to sue union leaders for defamation. But LaSalle's broader record in workers' rights cases underscores that he should not be confirmed.
The role of chief judge is critical because the highest court in the state has been aggressively undermining New York's workplace protections, including the Labor Law and the State and City Human Rights Laws. Based on his record on the intermediate appellate court, it appears that if LaSalle is confirmed, the high court will continue on its trajectory of limiting worker protections.
First, there's Campanelli vs. Long Island Lighting Co. A worker's child allegedly suffered lead poisoning in utero because the worker's employer violated Occupational Safety and Health Act (OSHA) regulations by failing to provide the worker with proper protection from exposure to lead ? so much so that the worker allegedly left work each day with his clothes saturated in lead.
LaSalle joined the court in holding that alleged OSHA violations alone did not prove the company was negligent. Most disturbingly, the court held that the OSHA regulations were only intended to protect the workers, and not workers' family members ? even though the OSHA lead standard both requires that employers provide protective clothing and that lead-contaminated clothing be disposed at the end of a shift in containers with labels warning that lead exposure could damage unborn children.
The opinion LaSalle joined in Moreno vs. Future Healthcare Services offers another example. In this case, LaSalle initially joined a legally sound Second Department ruling that found a group of home health workers who worked 24-hour shifts could bring a class action against their employers for failing to pay them for every hour they were on duty. On appeal, the Court of Appeals reversed that ruling, finding that the workers were only entitled to be paid for 13 hours. The high court did leave the door open for a class action of workers to proceed on their other claims, and sent the case back to LaSalle's court.
But in a troubling twist, LaSalle then joined an opinion that went far beyond the Court of Appeals ruling, barring the workers from bringing a class action on any of their claims, thus denying many low-paid home care workers the chance to vindicate their rights to recover unpaid wages under the Labor Law.
Finally, there's Troge vs. State Division of Human Rights in which the appellate court, including La-Salle, simply chose not to discuss an employee's extensive evidence of retaliation. Darlene Troge's job responsibilities included investigating complaints of workplace harassment for the Town of Southampton. She observed that upper management seemed to be embarking on a campaign to fire an employee because of his age and disability, using her notes as ammunition.
Troge filed an internal complaint complaining of this conduct. The town dismissed her complaint and fired her the next day. The opinion LaSalle joined rubber-stamped the state agency finding that Troge was not illegally retaliated against. The court ignored Troge's key evidence, including that the town supervisor admitted at the agency hearing that Troge was fired because she had made the discrimination complaint.
The next chief judge will shape the Court of Appeals' stance on employee rights for years to come. In recent years, narrow majorities on the high court have constricted the scope of New York's employee protections, over vigorous dissents. For example, in Konkur vs. Utica Academy of Science Charter School, the high court held that workers have no right under Labor Law Article 6 to sue for wage theft due to illegal kickback schemes ? finding the Legislature had denied workers the personal right to sue for extorted wages, despite clear legislative intent to expand workers' protection against wage theft and coercion.
In Doe vs. Bloomberg, the high court went out of its way to re-interpret a 37-year-old decision, Patrowich vs. Chemical Bank, holding that individual business owners could no longer be sued for discrimination under the State Human Rights Law ? and, at the same time, adopting a narrow, employee- hostile interpretation of the city Human Rights Law.
Justice LaSalle's record leads us to conclude that if he joins the Court of Appeals, the top court will continue to move in the direction of limiting employee rights to be free from wage theft, discrimination, and harassment, and favoring employer interests over those of employees. This is the wrong direction for the workers of New York.
Baran is a workers' rights attorney at Kakalec Law PLLC in Brooklyn. Clark is a partner at Ritz, Clark & Ben-Asher LLP in Manhattan.
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