The MTA and two contractors illegally underpaid hundreds of cleaners who worked at subway terminals during the height of the COVID-19 pandemic, a city administrative judge ruled this week.
Kevin F. Casey, a judge in the Office of Administrative Trials and Hearings (OATH), sided with City Comptroller Brad Lander against the MTA, Fleetwash Inc, and Ln Pro Services LLC in a Nov. 18 ruling, finding the transit agency and the two cleaning contractors systematically underpaid workers laboring in dangerous, uncertain times, potentially stiffing them of millions of dollars in wages.
The judge ruled that the underpayment was in violation of state law, which required the contractors be paid the state’s prevailing wage of $28 per hour. The cleaners were paid only between $18-21 per hour to disinfect subway cars at end-of-line terminals during the height of COVID-19 in 2020, when the subway was shut down overnight for the first time in its 120-year history.
Lander, as well as his predecessor Scott Stringer, had argued the laborers were owed prevailing wages under Articles 8 and 9 of the state’s Labor Law.
The MTA and the contractors disagreed, contending those sections only applied narrowly to “construction-like labor” and “building service work,” neither of which they considered to apply to disinfecting subway cars. In fact, they argued that applying Articles 8 and 9 to the cleaners was akin to paying prevailing wage to someone cleaning their own bike within a subway station, or other “absurd results.”
Casey did not accept that argument. He ruled that the statutes were not “restrictive” in nature as the defendants claimed, and further argued that even if a subway car doesn’t count as a building, cleaning it was “essential” to operations of subway stations, which are considered buildings.
“Requiring contractors to pay prevailing wages to workers who clean and disinfect subway cars inside a terminal station does not, as [New York City Transit Authority] claims, lead to an absurd result,” wrote Casey. “This case is not about a hypothetical worker cleaning a bicycle in a train station. It is about workers who performed an essential public service during a pandemic.”
Casey denied the motion to dismiss sought by the MTA and the cleaning contractors. The matter will now go to a further trial at OATH to determine the level of back wages owed to the workers plus civil penalties; Lander had previously argued the companies stiffed workers out of $2.5 million.
The MTA onboarded an army of contract subway cleaners at the height of the pandemic, when ridership plummeted by 90% and many New Yorkers feared contracting COVID-19 in the close confines of a train car. They were tasked with disinfecting subway cars at terminal stations, such as Flatbush Avenue-Brooklyn College on the 2/5 in Brooklyn and Jamaica-179th Street on the F in Queens.
Some of those laborers, many of them undocumented immigrants, described dastardly working conditions, such as filthy subway cars soiled with blood and human waste, inadequate cleaning materials and personal protective equipment, lack of access to bathrooms, and not being allowed to eat lunch in breakrooms — instead having to eat on platforms surrounded by rats. Workers also alleged that their checks were sometimes late or didn’t include the full amount they were owed.
“At the height of the pandemic, the MTA contracted with cleaning companies to hire low-wage workers, who risked their own health to clean and disinfect the subway cars that we relied on to get New York City moving again,” said Lander, who is now running for mayor, in a statement. “It’s outrageous that they tried to cheat these workers out of the prevailing wages they were owed under state law. This legal finding is an important step to getting subway cleaners the fair wages they deserve.”
The contracts have long since lapsed, and 24-hour subway service was restored by May 2021. Since then, the MTA has hired hundreds of full-time, unionized cleaners to work in-house.
MTA spokesperson Meghan Keegan said the agency is “reviewing the decision.” Lawyers for Fleetwash and Ln Pro did not immediately return requests for comment.
