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Retrenchment 101 ? basics concerning the layoff of employees from positions in the public service of the State and its political subdivisions

Retrenchment 101 ? basics concerning the layoff of employees from positions in the public service of the State and its political subdivisions
N.B. The following is a basic and limited overview of the often complex laws, rules and regulations, and court rulings, that must be considered and applied in a layoff situation.

Many municipalities and school districts have announced, or cautioned, that the financial difficulties they face will result in the abolishment of positions and the layoff of employees. As to the State as an employer, on March 24, 2009 Governor Paterson directed that approximately 9,000 positions in the Executive Branch of government be abolished in an effort to help close the State?s 2009-2010 budget gap.

§§80 and 80-a of the Civil Service Law set out the procedures to be followed in executing a layoff of employees in the classified service.* These provisions, and similar statutes, have become required reading for many.

Abolishment of positions: As to mechanics, the Attorney General has concluded that there must be an actual and lawful abolishment** of a position in order to lawfully remove an employee from his or her position pursuant to §§80 and 80-a (1976 Opinions of the Attorney General 7).

Once the responsible appointing authority decides those competitive class positions [and, with respect to the State as an employer, positions in the noncompetitive class] in a layoff unit that are to be abolished, two factors control for the purposes determining the individual or individuals to be laid off: the employee's tenure status [i.e., the permanent, contingent permanent, temporary, or provisional status of the worker] and his or her seniority.***

It could be costly to the appointing authority if it fails to make correct determinations concerning an employee's tenure status and seniority for the purposes of layoff. If a person ultimately found to have superior rights to retention was laid off and another individual having lesser rights to retention was continued in service instead, courts will usually award the individual who was laid off in error back salary and other benefits and the appointing authority would be directed to reinstate the individual retroactively to his or her former position as well.

Layoffs from positions in the unclassified service: Layoffs of individuals employed in positions in the unclassified service are also governed by statute. For example, Sections 2510, 2588 and 3013 of the Education Law, among other sections, controls with respect to the layoff of tenured teachers and administrators employed by a school district or a BOCES.

In addition, Rules of the Board of Regents must be considered. For example, 8 NYCRR 30-1.13 [Rights incident to abolition of positions] allows a more senior individual to "bump" a less senior individual following his or her transfer to position in another tenure area in the course of a layoff situation.

Tenure: Insofar as tenure is concerned, those lacking permanent status in the title [i.e., temporary employees and provisional appointees] are to be terminated before permanent employees are laid off. Permanent employees serving their probationary period are to be laid off before permanent employees in the title who have completed their probationary period. For the most part, so-called "contingent permanent employees" enjoy the same tenure rights as permanent employees when it comes to layoff.

Seniority: As to seniority, the basic principle in a layoff situation is "LIFO" - Last In; First Out. For the purposes of Sections 80 and 80-a, seniority is determined on the basis of the date of the individual's initial permanent appointment followed by continuous permanent status in the classified service up to the date of his or her layoff. Note that it is the initial date of permanent appointment rather than the date on which the employee attained tenure upon satisfactory completion of his or her probationary period that controls.

Such ?seniority" is not always the same as the employee's "seniority in the title" or "seniority" under a Taylor Law agreement.

Taylor Law contract provisions, however, may not adversely affect the layoff rights vested in employees by laws such as Sections 80 or 80-a of the Civil Service Law. [see Plattsburgh v Local 788, 108 AD2d 1045]. Some collective bargaining agreements may set out a different basis for determining seniority or grant ?super-seniority? to certain individuals. In a layoff situation, the statutory provisions regarding determining seniority trump those set out in a collective bargaining agreement.

The fact that at sometime during his or her career the employee may have been provisionally promoted or been placed on leave from his or her "permanent position" or employed in a position in a different jurisdictional class will not necessarily constitute a break in the employee's "continuous permanent status" for the purposes of Sections 80 and 80-a. In some cases the employee's date of seniority may include service with another governmental jurisdiction.

Breaking ties in seniority: Sometimes it may be necessary to break a ?tie? in seniority, [for example, see CSEA v OMH, 196 A.D.2d 276; Fiffe v City of Cohoes CSD, 262 A.D.2d 762], especially in a layoff involving a school district where typically a number of educators are appointed effective at the beginning of an academic year [see, for example, Decisions of the Commissioner of Education 12933]. Essentially any rational method of ranking to break ties in seniority may be used as long as it is consistently applied to those subject to the layoff.

Leaves and resignations: Separation from employment on leave of absence without pay in excess of one year would, in most cases, constitute an interruption of continuous service. Service is deemed interrupted if an individual resigns from his or her position and is not reinstated or reappointed within one year of the effective date of the resignation.

Layoff units: Among the elements that complicate the determination of the specific individual or individuals to be suspended or displaced as a result of a layoff are (1) the identification of the specific layoff unit(s) for layoff purposes and (2) the employee's decision with respect to exercising any "displacement," "bumping" or "retreat" rights within that layoff unit that he or she may have [see Rules of the State Civil Service Commission, 4 NYCRR 5.5 et. seq. Layoff units are set out in the President's Regulations [see 4 NYCRR 72].

If only a few positions are involved in a layoff, it is somewhat easier to determine the specific individual or individuals to be laid off. Where large numbers of positions are abolished, especially where the layoff unit is geographically spread out, the task of determining the rights of employees based on their relative seniority is made significantly more complex.

Military service: Military service may be a factor in determining seniority as well. A veteran subject to layoff pursuant to Section 80 or Section 80-a of the Civil Service Law who served in time of war may be entitled to have his or her "seniority date" adjusted for the purposes of layoff [Section 85, Civil Service Law]. Five years of service is added to an eligible disabled veteran's original date of permanent appointment; 30 months of service credit is added in the case of eligible non-disabled veterans.

The spouse of a 100% disabled veteran may be eligible for five years of "additional" service credit in layoff situations if the veteran meets the requirements set out in Section 85.7 of the Civil Service Law.

Section 85.7(1) provides that a blind employee is entitled to absolute preference in retention in cases of layoff.

Also, Section 86 provides for the transfer of veterans and exempt volunteer firemen in positions in the non-competitive class or in the labor class employed by a political subdivision of the State upon abolition of positions is such classes [see, for example, Bartholomew v Columbia County, 191 A.D.2d 88].

Takeovers: Another aspect that may be a factor in some layoff situations involves determining Sections 80 or 80-a seniority for individuals who attained permanent status with a public employer as a result of a "takeover" of a private institution or enterprise by a governmental employer pursuant to Section 45 of the Civil Service Law or a similar law. Such employees will typically have two seniority dates to consider and it may be necessary to consider both when determining their retention rights in a layoff situation.

One is their date of seniority with respect to other public employees in the layoff unit generally, usually determined on the basis of the effective date of the takeover. The second is the date of their seniority with respect to their coworkers at the private enterprise at the time of the takeover.

Collective bargaining agreements: As noted earlier, another difficulty may arise as a result of an employer's efforts to comply with "layoff provisions" contained in a Taylor Law agreement.

As the Plattsburgh decision indicates, [Plattsburgh v Local 788, 108 AD2d 1045], statutory seniority rights for the purposes of layoff may not be impaired or limited by Taylor Law agreements.

Similarly, in Szumigala v Hicksville Union Free School District, 539 NYS2d 83, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated Section 2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

Affirmative Action: Layoff may also adversely impact affirmative action plans, interests and goals. Employee appointed pursuant to Affirmative Action programs may be among those having the least seniority and thus having the greatest potential to be laid off. Further, reinstatement following layoff is also based on seniority and here the so-called "rule of one" controls. The person having the greatest seniority willing to accept the position must be appointed to the item or the position must be kept vacant.

One Federal appeals court has concluded that unless there is some evidence that layoff procedures based on seniority were adopted or applied with an intent to discriminate against protected classes, layoffs based on seniority neither violate Title VII nor the post-Civil War Civil Rights statutes [42 USC 1981, 42 USC 1983] (see NAACP v Detroit Police Officers Association, 52 FEP 1001).

Retirement: In an effort to reduce the total number of persons to be laid off, legislation may be enacted that provides certain employees with a "retirement incentive."

* The Education Law sets out the procedures to be followed with respect to educators whose positions are in the unclassified service [see Civil Service Law Section 35] subject to its provisions.

** In some cases the Doctrine of Legislative Equivalency must be considered. The Doctrine states that only the entity that created the position may abolish it [i.e., a position created by a legislative act can only be abolished by a correlative legislative act" (Matter of Torre v. County of Nassau, 86 NY2d 42)].

*** With respect to situations where there are no statutory or contractual requirements applicable to incumbents of positions to be abolished, the appointing authority should consider adopting guidelines that will survive a challenge that the designation of the individual or individuals to be laid off was arbitrary or capricious.

Full post as published by New York Public Personnel Law on March 26, 2009 (boomark / email).