Labor & Employment Law

Crediting service for certain benefits base on employment in another jurisdiction

In this CPLR article 78 proceeding, an employee of the City of New York [Plaintiff] sought judicial review of a New York City Department of Environmental Protection [DEP] determination that she was not entitled to leave-time credits based on her 17 years service with the City University of New York [CUNY]. Supreme Court denied Plaintiff's petition and dismissed the proceeding, explaining that ?employees in the classified service of the City University of New York have not been employees of an agency of the City of New York but have been employees of a separate civil service jurisdiction, the City University of New York.?

According, the court held that DEP's decision that Plaintiff was not a City employee who was covered by the Leave Regulations during the times that she was employed by CUNY "was legally correct and not arbitrary and capricious."

Nonetheless, opined Supreme Court, "if the Plaintiff could show that CUNY and the City had an agreement or MOU [Memorandum of Understanding] permitting the City to recognize her accrued CUNY leave credits, she might be entitled there such credit, noting that "the State has promulgated regulations recognizing a State employee?s right to the transfer of leave credits accrued in the course of other public employment where the prior public employer entered into a reciprocal agreement or MOU with the State for recognition of such leave credits," citing 4 NYCRR 24.1.* 

Insofar as Plaintiff's claim was concerned, CUNY and the City had not entered into such a reciprocal agreement or MOU. Thus, said the court, DEP rationally concluded that there was no basis for crediting the Plaintiff any of her service as a CUNY employee in connection with her City-service leave benefits, or the rate of accrual of those benefits.** In contrast, where an employee resigns one position with the City that was covered by the Leave Regulations and takes another position with the City also covered by the Leave Regulations, the employee does not lose any leave rights or balances, regardless of whether the new position carries the same or a different title, or is in the same or a different agency.

With respect to Plaintiff's contentions, in the words of the court, "A review of applicable law and the administrative record reflects that, since July 1, 1979, CUNY employees have not been employees of the City, and CUNY and the City never entered into an agreement or MOU covering this subject matter." Accordingly, an employee?s length of City service determines his or her rate of accrual of leave balances and the length of such service also is considered in connection with seniority for layoff purposes, and may affect the level of recurring benefits under a collective bargaining agreement.

In other words, should an employee resigns a position with the City that was covered by the Leave Regulations and takes a position with a public employer other than the City, or a City position not covered by the Leave Regulations, "the employee may indeed lose leave rights, including any favorable rates of leave accrual that were in effect as the time of resignation" nor may the employee carry over leave balances in the event that he or she returns to City service in the future.

Accordingly, Supreme Court held that DEP had properly concluded that the Plaintiff's leave-time credits and rate of accrual must be based on a start date of November 2, 2014, when she began her employment with DEP. 

* 4 NYCRR 24.1 is applicable to employees of State executive agencies as the employer. See, also, 22 NYCRR 24.12, which provision is applicable to nonjudicial employees of the State Unified Court System. 

** See Kaslow v City of New York, 23 NY3d 78.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/pdfs/2020/2020_32931.pdf

Full post as published by New York Public Personnel Law on September 23, 2020 (boomark / email).