Labor & Employment Law

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By Harvey Randall, Esq.

Last known address
NYS Nat'l Org. for Women v Pataki, CA2, 261 F.3d 156

Courts sometimes provide insights into administrative due process procedures in the course of considering a case that essentially focuses on a completely different issue. In the National Organization for Women [NOW] case, which concerned due process in the adjudication of alleged violations of an individual's civil rights, one of the ministerial issues considered by the Circuit Court of Appeals, Second Circuit, was an administrative agency's duty to "track down" an individual.

In this "class action" NOW sued the NYS Division of Human Rights [Division] on behalf of individuals who, since October 15, 1990, "had filed [or will file] complaints of discrimination with the Division and whose complaints have not been, or will not be, finally administratively adjudicated or otherwise substantively resolved within three years of the date of the filing of the complaint." NOW alleged that the Division violated the class members' Fourteenth Amendment procedural due process rights as a result of its:

1. protracted delays in processing their discrimination claims that prejudiced such claims; and

2. deficiencies in notifying certain individuals that their claims were to be dismissed for "administrative convenience."

One of the arguments advanced by NOW was that certain class members were not advised that the Division had dismissed their claims for "administrative convenience" because the Division was unable to locate them. It appears that these individuals had moved after filing their complaint but never advised the Division of their new address.

Was the Division incorrect when it dismissed discrimination complaints for "administrative convenience" because the Division was unable to locate the individual? The court said that the Division's use of the U.S. Postal Service to send the notice to complaints "at the last address furnished to the Division comports with due process."

Sometimes such a "lack of notice" will become an issue in connection with a disciplinary hearing that has been conducted "in absentia."

In "in absentia" disciplinary adjudications a hearing is held despite the employee's failure to appear at the hearing and his or her absence is unexplained. Typically the agency is required to prove its case against the employee to the hearing officer or arbitrator notwithstanding the absence of the employee or his or her representative.

Note: Before holding a disciplinary hearing in absentia the employer or the hearing officer should make a reasonable attempt to locate the individual and determine the reason why he or she has not appeared at the hearing. It may be that the employee has a valid excuse for his or her nonappearance such as a family emergency or personal illness which would justify the hearing officer granting an adjournment of the hearing.

If the employee is found guilty of the charges and later challenges the determination, or the penalty imposed, on the grounds that he or she never received any notice of the time and place of the hearing because the notice was not sent to his or her "new address," it seems clear that the courts will not be too sympathetic to such an argument unless the individual can show that he or she advised the employer of his or her new address and the employer neglected to note the change of address in its records.

Full post as published by New York Public Personnel Law on March 12, 2008 (boomark / email).