During the first quarter of 2012, the U.S. District Court for the Western District of New York addressed the unsettled area of preemption of common law claims for unpaid wages and did not remand. By contrast, it refused to exercise jurisdiction over common law negligence claims which merely referred to past violations of federal environmental statutes. It also completed a decision reported on in July 20111 by issuing a report and recommendation on the extent to which post-arrest statements may be suppressed following the illegal search of a computer.

Alleged Wage Violations

In Gordon v. Kaleida Health, No. 08-CV-951S, 2012 WL 171577 (W.D.N.Y. Jan. 17, 2012), Chief Judge William M. Skretny, on cross motions to remand and to dismiss, addressed whether alleged statutory and common law unpaid wage claims were preempted by the Labor Management Relations Act2 (LMRA) or the Fair Labor Standards Act3 (FLSA).

Plaintiffs originally commenced suit in the Western District alleging violations of the FLSA, Employee Retirement Income Security Act (ERISA),4 New York Labor Law5 (NYLL) and various common law causes of action regarding the alleged withholding of wages by their employers. After defendants moved to dismiss the claims, plaintiffs voluntarily dismissed all claims except those alleging violations of the FLSA and NYLL and commenced two actions in state court reviving the voluntarily dismissed causes of actions. Following the removal of both actions, plaintiffs filed a motion to remand and defendants again sought to dismiss the allegations.

The court first addressed whether the statutory or common law causes of action in the complaint were sufficient to confer jurisdiction under 28 U.S.C. §1331. Specifically, defendants argued that §301 of the LMRA,6 which provides federal jurisdiction over claims involving alleged violations of a contract between an employer and a labor organization, applied to the allegations in plaintiffs’ complaint. After noting that the LMRA preempts state law causes of action requiring an analysis of a collective bargaining agreement, Judge Skretny noted that the court did not have enough information to know whether any wage-related provisions were involved. He noted that “the mere existence of a CBA does not mandate preemption,” id. at *3, and found there was an insufficient showing to confer federal jurisdiction based on the LMRA.

The court next analyzed whether the FLSA preempted the plaintiffs’ state law wage claims. Because the plaintiffs were seeking unpaid wages in both their statutory claims under the NYLL and their common law claims, the court analyzed whether the FLSA preempted each type of claim. Beginning with the statutory wage claims brought under the NYLL, Judge Skretny noted that the FLSA contains a “savings clause”7 which prevents federal preemption by the FLSA if a state has enacted more stringent wage and hour provisions than those provided under the federal statute.

New York has adopted a more stringent straight-time wage provision than required under the FLSA and thus the FLSA does not preempt straight-time statutory wage claims. Similarly, the U.S. Court of Appeals for the Second Circuit has held that claims seeking unpaid overtime wages may be brought under the NYLL.8 As a result, Judge Skretny concluded that the plaintiffs’ claims for unpaid wages brought under the NYLL were not preempted by the FLSA.

Despite being well settled in the Second Circuit that statutory claims for unpaid wages brought under the NYLL are not preempted by the FLSA, the Second Circuit has not yet determined whether preemption applies when unpaid wages are sought via common law claims. Although “the FLSA’s savings clause expressly provides that wage and hour actions may be brought under state wage statutes, it says nothing about a party’s ability to pursue general common law claims that have no specific relevance to the labor law context.” Id. at *6 (internal quotation omitted).

Both the Fourth and Ninth circuits have held that such claims are preempted by the FLSA to the extent the relief sought is available under the FLSA. Judge Skretny, however, found a pair of district court cases from the Eastern and Western Districts of New York persuasive. Indeed, Judge Skretny stated that the common law claims for unpaid wages refer to the FLSA only as a means of calculating damages and such a “vague reference to ‘state law’ is not enough to draw purely common law claims into the ambit of the FLSA’s savings clause.” Id. at *7. Thus, Judge Skretny concluded that the federal statute’s savings clause prevented the FLSA from preempting only the plaintiffs’ common law claims for unpaid straight-time wages but that the FLSA preempted their common law claims for unpaid overtime wages.

After holding that plaintiffs’ claims were partially preempted by the FLSA and denying plaintiffs’ motion to remand, Judge Skretny had to assess whether to exercise supplementary jurisdiction over the remaining purely state law claims. He decided to do so and dismissed all of the other arguments and claims.

Federal Environmental Laws

Chief Judge Skretny, on another motion to remand, addressed whether reference to alleged violations of federal environmental statutes was sufficient to satisfy federal question jurisdiction in a toxic tort case. In Abbott v. Tonawanda Coke, No. 11-CV-549S, 2012 WL 42414 (W.D.N.Y. Jan. 9, 2012), he granted the plaintiffs’ motion to remand and held that the references to federal environmental statutes were merely contextual elements of the negligence claims and were not sufficient to create federal jurisdiction under the 28 U.S.C. §1331.

When plaintiffs filed their original complaint in state court, they included a negligence per se cause of action in which they partially relied on violations of the Comprehensive Environmental Response, Compensation, and Liability Act,9 the Resource Conservation and Recovery Act of 1976,10 and the Clean Air Act.11 After removal to federal court, plaintiffs amended their complaint and modified their negligence per se allegations by removing any reference to the federal environmental statutes. Instead, the amended complaint made several references to past violations of the federal environmental statutes and attached copies of the notices of violations to the amended complaint. Following amendment of their complaint, plaintiffs moved to remand the case to state court for lack of subject matter jurisdiction.

Nevertheless, defendants argued and plaintiffs did not dispute that a court must interpret the complaint as it existed at the time the notice to remove was filed, and Judge Skretny rejected the defendants’ argument that the original complaint was premised on alleged violations of federal laws. Instead, he noted, “the asserted causes of action, including negligence, negligence per se, trespass, nuisance, and intentional or negligent infliction of emotional distress, sound in state law.” Id. at * 4. Although plaintiffs pleaded that the defendants had allegedly violated federal environmental statutes, Judge Skretny stated that these statements were merely meant to provide context to the state law claims, not to provide the basis for a cause of action. Therefore, the alleged federal violations were “insufficient in this case to confer federal jurisdiction over garden-variety state-law claims.” Id. (internal quotations omitted).

Judge Skretny also rejected two additional arguments propounded by the defendants in support of their opposition to the motion to remand the action to state court. First, Judge Skretny stated that when a federal question was presented as only one of multiple theories that could support a particular claim, as had plaintiffs in their original negligence per se claim, such allegations are insufficient to create federal jurisdiction. Second, he rejected the argument that plaintiffs had attempted to manipulate the forum and remove any grounds for federal jurisdiction by removing the negligence per se cause of action in their amended complaint. Although the amended complaint removed the negligence per se cause of action, it still included general allegations of violations of federal and state environmental laws. In fact, as Judge Skretny noted, the citations issued by the Environmental Protection Agency, which were attached to both the original and amended complaints, “reference Defendants’ obligations under a state environmental regulatory scheme, which the EPA has the authority to enforce.” Id. at *5 (citing 42 U.S.C. §§7413(a)(1), 7410)).

Lastly, Judge Skretny noted that the court had already remanded several previous cases which contained similar negligence causes of action and references to violations of federal environmental statutes.

Post-Arrest Statements

After obtaining additional information requested in a prior decision denying a defendant’s motion to suppress certain evidence,12 Magistrate Judge Marian W. Payson in United States v. Howe, No. 09-CR-06076, 2012 WL 414766 (W.D.N.Y. Feb. 2, 2012) discussed the extent to which the exclusionary rule applies to post-arrest statements made after an illegal search of a computer yields incriminating evidence.

During the investigation of the defendant for Internet child pornography, a police officer prepared a search warrant for the defendant’s house and computer. Although the warrant was prepared from a police department template, due to a “copy and paste error,” the warrant that was presented to and subsequently signed by a town justice did not include the computer within the list of items to be searched. During the search of the defendant’s home, the computer was seized and later searched twice by a computer forensic team which discovered child pornography. This discovery was disclosed to an Immigration and Customs Enforcement (ICE) Special Agent who had browsed the application and warrant but did not review them in detail. She believed that the computer evidence was obtained from a valid search.

Following the issuance of a federal criminal complaint, the defendant was arrested on Internet child pornography charges and was properly administered his Miranda13 rights. He contends that his post-arrest statements regarding the child pornography on his home computer must be suppressed as fruit of the poisonous tree.

Judge Payson began her analysis of whether to suppress the post-arrest statements by noting that “statements acquired as an indirect product of an illegal search should not be suppressed if there is no evidence that law enforcement used knowledge derived from the illegal conduct to induce a defendant to speak” and that “suppression is inappropriate where the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint.” Id. at * 2 (internal quotation omitted). Thus, Judge Payson focused her inquiry on the purpose and flagrancy of the alleged misconduct and concluded that any misconduct was not flagrantly illegal.14

Instead, the record reflected good-faith actions by all law enforcement actors involved in the arrest of the defendant. Although the warrant issued did not authorize the search of the defendant’s computer, the officer who applied for the warrant testified that a drafting error caused the omission of the computer from the warrant. Similarly, both the forensic analysis team and ICE special agent believed the search warrant covered the search of the defendant’s computer. Furthermore, Judge Payson noted that upon the defendant’s arrest, he was informed only that he was being charged in connection with Internet child pornography, not that the charges arose from a search of his seized computer. Indeed, the defendant had voluntarily disclosed to law enforcement that he had “accidentally” downloaded child pornography during a conversation with police prior to the searches of his computer.

As a result, Judge Payson determined that the defendant did not know that his computer had been searched at the time he made the statements he was attempting to suppress. Moreover, law enforcement personnel had not purposefully exploited the computer evidence to obtain the post-arrest statements from the defendant. The court concluded that applying the exclusionary rule in the present instance would not deter future violations of the Fourth Amendment by law enforcement personnel and denied the defendant’s motion to suppress his post-arrest statements.

Sharon M. Porcellio is a partner at Ward Greenberg Heller & Reidy in Rochester representing businesses and institutions in commercial litigation and labor and employment matters. She can be reached at sporcellio@wardgreenberg.com.William R. Leinen, an associate with the firm, assisted with the preparation of this article and can be reached at wleinen@wardgreenberg.com.

Endnotes:

1. See Sharon M. Porcellio, “Warrantless Computer Searches and Fourth Amendment Rights,” New York Law Journal, July 8, 2011 (reporting on United States v. Howe, 09-CR-6076L, 2011 WL 2160472 (W.D.N.Y. May 27, 2011)).

2. 29 U.S.C. §141 et seq.

3. 29 U.S.C. §201 et seq.

4. 29 U.S.C. §1001 et seq.

5. N.Y. LABOR LAW §650 et seq.

6. 29 U.S.C. §185(a).

7. See 29 U.S.C. §218(a).

8. See Diaz v. Electronics Boutique of Am., No. 04-CV-0840E, 2005 WL 2654270, at *8 (W.D.N.Y. Oct. 17, 2005) (citing Zheng v. Liberty Apparel, 355 F.3d 61, 78 (2d Cir. 2003)).

9. 42 U.S.C. §§9601 et seq.

10. 42 U.S.C. §§6901 et seq.

11. 42 U.S.C. §§7401 et seq.

12. See Porcellio, supra note 1.

13. Miranda v. Arizona, 384 U.S. 436 (1966).

14. The court considers four factors when analyzing whether an illegal search has tainted a defendant’s later statement: “(1) whether Miranda warnings were given; (2) the temporal proximity between the illegal search and the statements; (3) the presence of intervening circumstances; and, (4) the purpose and flagrancy of the official misconduct.” Howe, 2012 WL 414766, at *3. Judge Payson noted that the first three factors provided “little, if any utility” in this case and primarily focused on the fourth factor. Id.