When Cleaning Is Not Cleaning - Revisited:

Court of Appeals Defines What Is "Cleaning" Under Labor Law

As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent Court of Appeals decision setting forth what is "cleaning" under the Labor Law.

As most are aware, Labor Law Section 240(1) imposes a non-delegable duty upon owners and contractors who fail to provide safety devices for workers subjected to elevation related risks. To recover, a plaintiff must have been engaged in a covered activity. One of the activities that is specifically mentioned in Labor Law Section 240(1) is "cleaning". Over the years there has been a number of cases that have tried to reconcile when cleaning is a covered activity and when cleaning is not.

In August, 2012 we discussed Soto v. J. Crew, Inc., in which the First Department found that the plaintiff, who was an employee of a commercial cleaning company that contracted to provide J. Crew with general daily cleaning maintenance services to a store, was injured when he fell off an A-frame ladder while dusting the top of a shelf. The First Department held that the plaintiff was not "cleaning" within the meaning of the Labor Law and dismissed the complaint. The First Department granted the plaintiff leave to appeal to the Court of Appeals.

The Court of Appeals affirmed the dismissal of the complaint. The Court noted that the threshold issue in this appeal concerned whether the plaintiff was engaged in "cleaning" within the meaning of Labor Law Section 240(1). The Court first reviewed conflicting cases concerning window washing. The Court then discussed its prior decision in Dahar v. Holland Ladder & Manufacturing Company, in which the Court of Appeals found that the plaintiff, who was standing on a ladder which broke when he was cleaning a wall module which had been purchased for installation in a nuclear waste treatment plant, was not cleaning within the meaning of the Labor Law, and therefore not covered.

In Soto, the Court of Appeals rejected plaintiff's broad argument that the Legislature intended to cover all cleaning that occurs in a commercial setting no matter how mundane. Excluding commercial window washing, which the Court of Appeals had already found to be covered, the Court noted that activity must meet certain prerequisites to be characterized as cleaning. First, an activity cannot be cleaning under the statute if it is routine, that is in the sense that it is a 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. Second, it is not cleaning if it requires neither specialized equipment or expertise, nor the unusual deployment of labor. Third, the activity is not cleaning if it generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning. Fourth, it cannot be cleaning under the statute if it is unrelated to any ongoing construction, renovation, painting, alteration or repair project. The Court of Appeals noted that whether an activity is cleaning is an issue for the Courts to decide after reviewing all the factors.

In the Court of Appeals view, the presence or absence of any one factor is not necessarily dispositive, if viewed in the totality of the remaining factors. Applying those factors in this case, the Court found that the plaintiff was not "cleaning" within the meaning of the Labor Law. The dusting of a 6 foot high display shelf is the type of routine maintenance that occurs frequently at a retail store, did not require specialized equipment or knowledge and could be accomplished by a single custodial worker using commonly found tools in a domestic setting. The elevation related risks involved were comparable to those encountered by homeowners during ordinary household cleaning, and the task was unrelated to construction, renovation, painting, alteration or repair. Thus, because the plaintiff was not involved in an activity that met the above criteria, he was not engaged in cleaning under the Labor Law and therefore, not covered.

The result was the correct one since to allow routine cleaning cases to become strict liability under the Labor Law would necessarily open the floodgates of litigation. Of course, by delineating certain criteria, the Court of Appeals is inviting another round of cases which will attempt to define what is really "cleaning" under the Labor Law.

Should you have any questions, please call.

Thomas M. Bona