Labor & Employment Law

Termination of an individual following his or her failure to obtain a required license deem a ?provoked discharge?

By Harvey Randall, Esq.

Termination of an individual following his or her failure to obtain a required license deem a ?provoked discharge?
Matter of Rhome v Commissioner of Labor, 2008 NY Slip Op 03545, Decided on April 24, 2008, Appellate Division, Third Department

Cynthia R. Rhome was employed as a teacher. Although advised that she was required by law to obtain a permanent teaching license prior to June 2006 in order to retain her employment, Rhome failed to take one of the required tests for her teaching license.

The consequence of her not obtaining a permanent license: termination from her employment.

The Appellate Division sustained the Unemployment Insurance Appeal Board's decision that Rhome?s failing to timely complete the mandated licensing requirements constituted a voluntarily separation from her employment without good cause.

Such a situation, said the court, falls within the ambit of the doctrine of provoked discharge.

Possession of a valid driver's license or a license to practice law or medicine may be among the minimum qualifications for appointment to certain positions in the public service. However, if the license requirement is not essential to the performance of the duties of the position, the courts have ruled that the failure to have a valid license is not fatal to the employee's continuation in service [see Matter of Martin, 86 AD2d 712].

In contrast, where the license is essential to the individual's ability to perform his or her work lawfully, the courts have approved the termination of the employee if the required license is revoked or suspended. This point is illustrated in O'Keefe v Niagara Mohawk Power Corp., 714 FSupp 622], a case involving the loss of a license to drive a motor vehicle.

It is well settled that where the law requires an individual to have a valid license or permit in order to practice his or her profession or duties, the loss, expiration or revocation of the license or permit means that the individual is no longer authorized to perform the duties of the position by operation of law. Although such a person may continue to be "qualified" to perform the duties of the position, he or she is typically barred from doing so unless and until a valid license or permit is obtained.

In such situations the courts have upheld the employee's immediate suspension without pay, i.e., suspension without pay is proper where the teacher lacks the necessary license or certification authorized [Meliti v Nyquist, 41 NY2d 183]. The legal theory in such cases is that it would be unlawful to continue a tenured but uncertified, and therefore unqualified, teacher on the payroll. Courts have also ruled that the fact that the teacher is granted a license to teach "retroactive" to the date of the expiration of his or her earlier certificate does not cure his or her "unqualified" status. The defect -- the inability to lawfully perform teaching duties -- is not remedied by the retroactive issuance of a license and the teacher's subsequent recertification does not make his or her earlier suspension without pay unlawful. This is significant as it implies that the issuing of a "retroactive license" does not support any claim for back salary and benefits for the period during which the teacher was off the payroll.

Although Meliti concerned the license required for teaching, the same rationale undoubtedly would be applied by the courts in other employment situations where a license is required to perform the duties of the position lawfully, such as the duties of an attorney or professional engineer. Such an individual must hold a valid licensed to practice his or her profession in the jurisdiction involved.

Also, where the duties of a position requires that the incumbent to possess a valid license or permit, an employer's issuing a directive that the appropriate employees obtain and, or, maintain such a license is a non-mandatory subject of collective bargaining [CSEA Local 1000 and State of New York, 27 PERB 3018].

Full post as published by New York Public Personnel Law on April 28, 2008 (boomark / email).