Misclassified city employee may be compensated

OBSERVER Photo by Jo Ward Dunkirk Mayor Wilfred Rosas and City Attorney Richard Morrisroe address Council members and the public during a lengthy Common Council meeting Tuesday.

City of Dunkirk employee Wendy Spinuzza may be awarded a $150,000 pre-suit settlement from the city for misclassifying her job.

According to a resolution that was tabled 3-2 at the regular meeting of the Dunkirk Common Council Tuesday, Spinuzza, who is currently the assistant housing, building and zoning officer, began working for the city as an independent contractor in 2002 actually met the federal and state guideline of an employee of the city instead.

The resolution, addressing an employment letter of potential suit dated August 2018, stated that for a period of 14 years she was labeled incorrectly and is due compensation for that time.

“If we deal with this issue which is a very standard issue that goes back to the 1940s as to whether a person should be classified as an employee or a contractor, this one is cut-and-dry,” City Attorney Richard Morrisroe stated at the workshop prior. “For the first 14 years, she was a contractor on paper. She meets 90 percent of it. There’s no doubt, by law, that she should have been classified as an employee. If we chose to fight this, we’d be looking at costs in the $1.5 million and up range in terms of a lawsuit. We’re settling for 10 percent of that.”

At the meeting, a few Dunkirk residents questioned how this could happen, and more importantly, could it happen again.

Fourth Ward Councilman Mike Civiletto read through the state labor board’s list of what constitutes an employee — requires full time work; set hours; required attendance at meetings and/or training; required permission for absences; tells individual how, when and where to do the job; is directly supervised; provided facilities, equipment tools and/or supplies; set rate of pay; provided compensation in the form of salary; provided reimbursements or allowances of business or travel expenses; provided fringe benefits and sets time, money and territorial limits. Of these items only one was an absolute no and another was unsure.

“When this was brought up to us, we looked into it and confirmed with professional attorneys both from the New York Conference of Mayors (NYCOM) as well as our own private attorneys,” Mayor Wilfred Rosas said. “And from 2002 to 2016 when this administration came onboard, she was misclassified, therefore she does have a right to receive compensation.”

The error was discovered around the time Rosas was the councilman-at-large and was soon rectified upon the current administration taking office in 2016.

At that time, Spinuzza’s job was confirmed to be a vital part of the city workings and was required to take the the civil service exam.

“In 2016, this administration worked with some of the current council members in righting the wrong and made her an employee,” Morrisroe added. “She had to take the civil service exams so she was entitled to civil service protection under New York state law and also became part of the union. It was now she felt she could point out the issue.”

According to a statement from Spinuzza, which was read by Morrisroe at the workshop, the reason she was waiting until now to make a case was because she ‘was a six-month to six-month independent contractor. I was a single mother with a daughter. I had no protection. At any point in time my contract could have been broken.’

“It’s a case that we can’t win because it is what it is,” Morrisroe said. “For all intents and purposes, she was an employee for 14 years.”

According to Rosas, he wanted to fight this, but opted out as it was better for the city to make this deal and move forward.

How the payment would work if passed is that Spinuzza would receive a $36,000 lump sum, her lawyer $4,000 and then the rest would be disbursed over a 10-year period in $10,000 amounts deposited into a deferred retirement annuity of her choice.

“We really have to have a plan,” First Ward Councilman Don Williams told the OBSERVER after the meeting. “This could be huge and have rippling effects. There might be people out there waiting to see what happens.”

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