Labor & Employment Law

Summary termination may result if an employee fails to satisfy a qualification for employment

By Harvey Randall, Esq.

Summary termination may result if an employee fails to satisfy a qualification for employment

Matter of O'Connor v Board of Educ. of City School Dist. of City of Niagara Falls, 2008 NY Slip Op 01218, Appellate Division, Fourth Department, Decided on February 8, 2008

A number of tenured teachers were summarily from their employment with the Niagara Falls City School District after they were found to be in violation of the residency policy set out in the Employment Agreement signed by them. The teachers sued, contending they were entitled to a hearing pursuant to Education Law §§3020 and 3020-a and in accordance with their due process rights prior to their termination.

The Appellate Division sustained the Supreme Court?s dismissal of the petitions. The court said that §§3020 and 3020-a are inapplicable in this instance as those statutes concern issues ?relating to a teacher's competency and the applicable disciplinary procedures and penalties attendant thereto?.? In contrast, said the court, an employer?s residency policy "is a consideration unrelated to job performance, misconduct or competency. It is a qualification of employment.?

Citing Mandelkern v City of Buffalo, 64 AD2d 279, the Appellate Division said that the school district ?may impose [such residence requirements] if chooses to do so without running afoul of the Constitution or general laws of the State.?

In addition to failing to satisfy a residence requirement, this summary termination of an employee is frequently encountered where the employee fails to possess or maintain a valid driver's license or a professional license such as a license to practice law or medicine that is a minimum qualifications for appointment or continuation in employment. Another factor that might be relevant in such situations is a requirement that the employee satisfy mandated ?continuing professional education? necessary to maintaining his or her required license or permit.

However, if the employer?s 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]. This is sometimes the case where a driver's license is included as a minimum qualification but the individual is not required to operate a motor vehicle in order to perform his or her duties.

In contrast, where the license is essential to the individual's ability to lawfully perform his or her work, the courts have approved the summary 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. Here the court said that the revocation of O'Keefe's license to drive a motor vehicle made it impossible for him to perform his duties ? which required that he operate a motor vehicle -- in a reasonable manner.

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 in terms of his or her possessing the required ?knowledge, skills and ability? 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 of the individual without pay.

Decisions addressing the issue of the automatic termination of an individual who fails to meet ?qualification? requirements include Schirmer v Town of Harrison, USDC, SDNY, February 1999 [a police officer had moved his domicile from New York to Connecticut and therefore no longer met the residence requirement for his employment] and Meliti v Nyquist, 385 NYS2d 407, 53 AD2d 951, affirmed 41 NY2d 183 [immediate suspension of teachers was lawful because their teaching licenses had expired].

As to the employee being continued on the payroll if he or she is not licensed, in Cutler v Poughkeepsie City School District, 104 AD2d 988, the Appellate Division said that would be incongruous if ?a teacher could be unqualified for the purposes of teaching in the educational area for which he [or she] was hired, but qualified for the purposes of drawing his [or her] pay while suspended from teaching.?

Notwithstanding the fact that courts appear to be prepared to uphold the summary termination of an individual who fails to meet a residence or license qualification, a public employer may be well served it elects to provide the employee with ?minimal administrative due process? by giving the individual a reasonable opportunity to produce the required license or permit or demonstrate he or she satisfies the residence or other employment requirement.

Full post as published by New York Public Personnel Law on March 03, 2008 (boomark / email).