Summary
In 2022, the State of New York passed the Construction Industry Wage Theft Statute, New York Labor Law § 198-e (the “Wage Theft Statute”). It includes authorizing suits against contractors to recover any employee wages and benefits unpaid by their subcontractors. In 2023, a union benefit fund sued a general contractor under the Wage Theft Statute, seeking payment of nearly three million dollars resulting from the subcontractor’s failure to remit benefit fund contributions pursuant to its collective bargaining agreement.
On April 29, 2025, a U.S. District Court ruled that the Wage Theft Law cannot authorize such a suit. The court concluded that such claims are the subject of federal law and therefore cannot be controlled by a state statute. The suit by the benefit fund was therefore dismissed.
More specifically, the court held that ERISA (the Early Retirement Income Security Act) preempts the state Wage Theft Statute. As a result of the preemption, a benefit fund cannot utilize the Wage Theft Statute as a basis to collect the unpaid fund contributions of a delinquent subcontractor owed pursuant to a collective bargaining agreement from its general contractor.
Case Facts
Suit was brought by the Chairperson of certain benefit funds for Union Local 3 of the International Brotherhood of Electrical Workers, seeking payment of unpaid benefit fund contributions and related statutory damages from a general contractor in the amount of $2,826,416. The unpaid benefits were allegedly owed pursuant to a collective bargaining agreement by the general contractor’s subcontractor. If enforced as the fund contended, the New York Wage Theft Statute would have rendered contractors jointly and severally liable for all wages and benefits that a lower-tiered subcontractor fails to pay to its employees.
The case, which was initially filed in the Supreme Court for the State of New York, was removed to the U.S. District Court for the Southern District of New York. The basis for the removal to federal court was that the funds, and related collection rights, were governed by ERISA, a federal law.
Motions were brought by both the benefit fund and the general contractor. The fund sought to remand the case back to state court and the general contractor cross-moved to dismiss the case. As discussed, the general contractor argued that ERISA is the prevailing law and that, under that law, the fund could not seek recovery of the subcontractor’s alleged unpaid benefit fund contributions because it was not a signatory to any agreement extending such liability.
The Court’s Decision
In its decision, the federal court agreed with the defendant general contractor that ERISA preempted the state Wage Theft Statute and dismissed the contractor from the case. When applying ERISA, the court agreed that no suit could be sustained because there existed no contractual obligation that required the general contractor to remit contributions to the fund on behalf of the delinquent subcontractor.
Conclusion
This decision is surely a welcome one for contractors that perform work through subcontractors. The holding applies to all situations where a benefit fund established pursuant to ERISA seeks payment from a contractor under New York’s Wage Theft Law based on a subcontractor’s delinquent benefit fund contributions owed pursuant to a collective bargaining agreement.
The preemption doctrine relied upon by the court could potentially apply to statutes in other states that similarly hold contractors liable for the unpaid ERISA-covered benefits of their subcontractors. The decision does not, however, address wage payments. It applies only to benefit fund payments or contributions. The decision also does not relieve a contractor or subcontractor from its own failure to pay wages or other types of benefits on behalf of its employees as required by New York Labor Law.
Prudent contractors should consider due diligence background checks on potential subcontractors and remain alert to possible instances of subcontractors failing to make wage and/or benefit payments. Given the complexities of federal preemption and the nuances of state wage theft laws, contractors also should consider seeking legal advice when related issues arise.
Editor’s Note: This article was written by Aaron Schlesinger, a partner with the law firm Peckar & Abramson who works out of the firm’s New Jersey and New York offices, and is reprinted with permission. The article should not be relied upon as legal advice. For more information on state and local wage theft laws, see AGC’s Wage Theft Guide (covering laws in effect as of April 2023).