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Labor & Employment Law

New York Public Personnel Law New York Public Personnel Law

Summaries of and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State.

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Last Entry: October 22, 2014 at 07:00:00

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Employee improperly suspended

Posted on October 22, 2014
Employee improperly suspended without pay beyond the period permitted by Civil Service Law §75(3) credited with member service in a public retirement systemBattisti v City of New York, 2014 NY Slip Op 07065, Appellate Division, First DepartmentAnthony Battistiwas found guilty of misconduct after a disciplinary hearing and terminated from his employment with the New York City Police Department [NYPD]...


Terminated employee entitled to pay and benefits for all periods of suspension without pay in excess of 30 days

Posted on October 21, 2014
Terminated employee entitled to pay and benefits for all periods of suspension without pay in excess of 30 daysAlarcon v Board of Educ. of S. Orangetown Cent. School Dist , Appellate Division, Second Judicial Department, 2014 NY Slip Op 06969. [Alarcon II]In Alarcon I, [Alarcon v Board of Educ...


Appellate Courts differ regarding the State?s reduction of its employer contribution towards health insurance premiums for certain State retirees

Posted on October 20, 2014
Appellate Courts differ regarding the State?s reduction of its employer contribution towards health insurance premiums for certain State retireesBransten v State of New York, 117 AD3d 455 Retired Pub. Empls. Assn., Inc. v Cuomo, 2014 NY Slip Op 07044, Appellate Division, Third DepartmentIn course of collective bargaining for Taylor Law agreements for the period 2011-2016, the State and several collective bargaining units representing State employees agreed to reductions in the State's employer contribution towards State employee health insurance premiums to avoid laying off State employees during the life of these several collective bargaining agreements...


Off-duty misconduct

Posted on October 17, 2014
Off-duty misconductOATH Index No. 1460/14A research assistant [RA] was served with charges that alleged he was guilty of off-duty misconduct that resulted in his arrest among other misdeeds.  . The employer presented certificates of conviction, which proved that RA committed the crimes of assault, resisting arrest, intentional property damage and public intoxication...


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Volunteer ambulance organization is not a ?state actor? for the purposes of the Fourteenth Amendment

Posted on October 16, 2014
Volunteer ambulance organization held not a ?state actor? for the purposes of the Fourteenth AmendmentGrogan v. Blooming Grove Volunteer Ambulance Corps, USCA, 2nd Circuit, 13-656-cvThe Blooming Grove Volunteer Ambulance Corps [BGVAC], a private volunteer ambulance organization, submitted a motion in federal district court seeking summary judgment dismissing claims brought against it pursuant to 42 U...


Withdrawal of a resignation

Posted on October 15, 2014
Withdrawal of a resignation 2014 NY Slip Op 06883, Appellate Division, First DepartmentFrom time to time a former educator who was tenured in the position is reemployed in his or her former position. Does such a reemployment automatically result in the employee attaining tenure?  The Appellate Division ruled that if a former tenured employee fails to comply with the regulations of the Chancellor of the New York City Department of Education governing the ?withdrawal of a resignation and restoration to tenure,? the former employee?s tenure is not ipso facto*restored...


Appealing administrative decisions

Posted on October 14, 2014
Appealing administrative decisions Modlin v Kelly, 2014 NY Slip Op 06866, Appellate Division, First DepartmentTypically a disappointed individual challenges an administrative decision by bringing an Article 78 action.  In reviewing an administrative determination that was made without a hearing the issue is whether the action taken had a "rational basis" and was not "arbitrary and capricious" An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts...


Ignorance of the appeal process does not provide a sufficient basis to excuse a delay in commencing a timely appeal

Posted on October 10, 2014
Ignorance of the appeal process does not provide a sufficient basis to excuse a delay in commencing a timely appealDecisions of the Commissioner of Education, Decision No.16,671A certified public school administrator [Probationer] was appointed by the School District as a probationary Special Education School Improvement Specialist...


Student records sought in the course of a disciplinary action must be relevant to the defense of the accused and a factual basis establishing their relevance must be demonstrated

Posted on October 09, 2014
Student records sought in the course of a disciplinary action must be relevant to the defense of the accused and a factual basis establishing their relevance must be demonstratedWatertown City Sch. Dist. v Anonymous, A Tenured Teacher, 2014 NY Slip Op 06444, Appellate Division, Fourth DepartmentThe Watertown City School District [WCSD] initiated a proceeding in Supreme Court seeking an order quashing a subpoena duces tecum served on it by Anonymous, a tenured teacher, in the course of an administrative disciplinary action initiated against Anonymous pursuant to Education Law §3020-a...


A full time employee?s refusal to accept a part time position does not affect the individual?s right to have his or her name placed on an appropriate preferred list

Posted on October 08, 2014
A full time employee?s refusal to accept a part time position does not affect the  individual?s right to have his or her name placed on an appropriate preferred listGervais v Board of Educ. of E. Aurora Union Free Sch. Dist., 2014 NY Slip Op 06414, Appellate Division, Fourth DepartmentIn this CPLR Article 78 proceeding Supreme Court determined that the denial of certain teachers' rights to have their names placed on the preferred eligibility list was arbitrary and capricious...


The ?going and coming to work? rule may affect an injured employee?s eligibility for disability benefits

Posted on October 07, 2014
The ?going and coming to work? rule may affect an injured employee?s eligibility for disability benefitsDreher v DiNapoli, 2014 NY Slip Op 06631, Appellate Division, Third DepartmentAmong Court Officer John P. Dreher?s duties was transporting a judge who needed assistance to the courthouse from his residence...


Annulling a finding that the employee was guilty of one or more or several disciplinary charges served on the employee requires remanding the matter for a reconsideration of the penalty imposed.

Posted on October 06, 2014
Annulling a finding that the employee was guilty of one or more or several disciplinary charges served on the employee requires remanding the matter for a reconsideration of the penalty imposed.Sullivan v County of Rockland, 2014 NY Slip Op 06593, Appellate Division, Second DepartmentThis decision demonstrates that in the event an employee has been served with, and found guilty of, multiple disciplinary charges and the penalty is imposed based on such a finding of guilt, should one or more the charges of alleged misconduct be subsequently annulled by a court the matter is to be remanded to the appointing authority for its determination as to the appropriate penalty to be imposed based on the surviving charges of misconduct...


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending October 4, 2014

Posted on October 04, 2014
Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending October 4, 2014Click on text highlighted in color to access the full reportThe Comptroller said that ?In today?s fiscal climate, budget transparency and accountability for our local communities is a top priority by auditing municipal finances and operations ...


Disciplinary charges based on employee?s failure to appear at the disciplinary hearing

Posted on October 03, 2014
Disciplinary charges based on employee?s failure to appear at the disciplinary hearingOATH Index No. 1633/14An employee was charged with being absent without leave and insubordinate when she mistakenly appeared for an OATH hearing at 10:00 a.m. instead of 2:00 p...


Posted by Justia: Weekly Opinion Summaries ? Labor and Employment Law

Posted on October 03, 2014
Posted by Justia: Weekly Opinion Summaries ? Labor and Employment LawWeekly Summaries Distributed October 3, 2010Solis v. Lorraine Enters., Inc.Court: U.S. 1st Circuit Court of Appeals Docket: 13-1685 Judge: Selya At issue in this case was a popular restaurant in Puerto Rico owned by Lorraine Enterprises, Inc...


Collective bargaining under the Taylor Law contemplates negotiations will be an executive rather than a legislative process.

Posted on October 02, 2014
Collective bargaining under the Taylor Law contemplates negotiations will be an executive rather than a legislative process.Matter of the Town of Dresden, PERB decision U-7383The genesis of this decision was the Town Supervisor refusal to sign the negotiated Taylor Law agreement because he contended that he lacked the authority to reach a final agreement without the prior approval of the Town Board...


Judicial deference to PERB?s expertise in providing a remedy after it sustains an improper employer practice charge is not absolute

Posted on October 01, 2014
Judicial deference to PERB?s expertise in providing a remedy after it sustains an improper employer practice charge is not absoluteTown of Islip v New York State Pub. Empl. Relations Bd., 2014 NY Slip Op 06322, Appellate Division, Second DepartmentThe Town of Islip had discontinued assigning vehicles to certain employees for their use in commuting between home and work...


Only an appeal filed pursuant to §310 of the Education Law by an entity having "standing" will be considered by the Commissioner of Education

Posted on September 29, 2014
Only an appeal filed pursuant to §310 of the Education Law by an entity having "standing" will be considered by the Commissioner of EducationAppeal of United Federation of Teachers, Local 2, and the New York City Department of Education, Decisions of the Commissioner of Education, Decision  No...


Handbooks focusing on New York State and Municipal Public Personnel Law

Posted on September 27, 2014
Handbooks focusing on New York State and Municipal Public Personnel Law The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker...


Probationary employee?s refusing to sign an agreement extending his or her probationary period not disqualifying misconduct for the purpose of determining eligibility for unemployment insurance benefits

Posted on September 23, 2014
Probationary employee?s refusing to sign an agreement extending his or her probationary period not disqualifying misconduct for the purpose of determining eligibility for unemployment insurance benefitsMatter of Jackson (Commissioner of Labor), 2014 NY Slip Op 06237, Appellate Division, Third DepartmentThe employer chose not to grant a probationary teacher [Probationer] tenure but did offer to extend Probationer?s probationary term for one year if she executed an agreement requiring her to "waive any rights, claims or causes of action" related to tenure or the extension of her probationary period...


Providing confidential information to a drug dealer

Posted on September 19, 2014
Providing confidential information to a drug dealer OATH Index No. 556/14; adopted, Bd. Dec. COIB Case No. 2013-258The New York City Conflicts of Interest Board (COIB) adopted in full OATH Administrative Law Judge Kara J. Miller?s finding that a former clerical associate [Accused] employed by the Staten Island District Attorney's Office violated the Conflicts of Interest Law by offering confidential information to a drug dealer...


A municipality may discontinue a retiree?s health insurance benefit in the absence of a contract or provision of law granting the retirees a vested right to such a benefit

Posted on September 15, 2014
A municipality may discontinue a retiree?s health insurance benefit in the absence of a contract or provision of law granting the retirees a vested right to such a benefitIasillo v Pilla, 2014 NY Slip Op 06056, Appellate Division, Second DepartmentFormer mayors and former members of the Board of Trustees of the Village of Port Chester [Plaintiff] continued to receive health care benefits payable by the Village pursuant to Board of Trustee resolutions dated June 1, 1988, and November 2, 1994 upon retirement...


Selected reports and information published by New York State's Comptroller

Posted on September 12, 2014
Selected reports and information published by New York State's Comptroller Click on text highlighted in color  to access the full reportOn Friday, September 12, 2014, New York State Comptroller Thomas P. DiNapoli announced that the following audits have been issued by his office: Office of Children and Family Services (OCFS): Day Care Licensing (2013-S-66) OCFS?s licensing and inspection activities assure licensed and registered child care facilities are in compliance with applicable laws and are safe for children...


Circumstantial evidence used to establish employee?s misconduct

Posted on September 05, 2014
Circumstantial evidence used to establish employee?s misconduct OATH Index Nos. 587/14 & 1545/14A laboratory assistant was charged with committing errors in processing specimens.OATH Administrative Law Judge Astrid B. Gloade found that the hospital met its burden of proving that the laboratory assistant had [1] sent a patient's specimen for testing which was accompanied by the documentation for a different patient and that the laboratory assistant and [2] had entered the wrong code on a requisition form for the testing of a patient?s specimen, which resulted in the wrong test being performed on the specimen, based solely on circumstantial evidence...


Petition dismissed after former employee failed to rebut employer?s prima facie evidence that it did not unlawfully discriminate against him

Posted on September 04, 2014
Petition dismissed after former employee failed to rebut employer?s prima facie evidence that it did not unlawfully discriminate against him  2014 NY Slip Op 05959, Appellate Division, Second DepartmentPlaintiff appealed Supreme Court's dismissal of his ?second cause of action? that alleged he had suffered unlawful discrimination in employment because of his disability...


In a disciplinary hearing the employer bears the burden of proving the charges filed against an employee by a preponderance of the credible evidence

Posted on September 03, 2014
In a disciplinary hearing the employer bears the burden of proving the charges filed against an employee by a preponderance of the credible evidenceOATH Index No. 789/14 A New York City correction officer was charged with leaving her residence while on sick leave without permission and without having logged out with the employer's Health Management Division...


The date of the meeting on which a school board took formal action to appoint an individual is critical to determining ?commencement of service? for the purposes of determining seniority in the event of a layoff

Posted on September 02, 2014
The date of the meeting on which a school board took formal action to appoint an individual is critical to determining ?commencement of service? for the purposes of determining seniority in the event of a layoffDecisions of the Commissioner of Education, Decision #16,657In this appeal challenging the board of education?s decision concerning determining seniority of educators for the purposes of layoff the Commissioner of Education indicated that ?the general principles regarding seniority calculation are well settled...


Redacting the name of the accused employee from the decision following a disciplinary hearing

Posted on August 27, 2014
Redacting the name of the accused employee from the decision following a disciplinary hearingOATH Index #1536/14In the course of a disciplinary hearing the employee placed certain of his personal medical information in the hearing record. He then submitted a post-hearing request in which he asked OATH Administrative Law Judge Alessandra F...


Employee alleges his termination was in violation of Civil Service Law §75-b, the so-called public employee Whistle Blower Law.

Posted on August 26, 2014
Employee alleges his termination was in violation of Civil Service Law §75-b, the so-called public employee Whistle Blower Law.2014 NY Slip Op 05719, Appellate Division, Fourth DepartmentA code enforcement officer [Officer] terminated from his position sued the Town alleging that his "termination was in retaliation for his refusal to perform" unauthorized functions and for his "act[ing] as a whistle-blower in reporting" those unauthorized directives "to the Town's outside attorney and others" in violation of Civil Service Law §75-b, the public employees' whistle blower statute...


Considering pre-trial suspension without pay in determining the disciplinary penalty to be imposed

Posted on August 25, 2014
Considering pre-trial suspension without pay in determining the disciplinary penalty to be imposedOATH Index #1804/14The employee had been charged with (1) violating department rules, (2) negligently operated his employer?s vehicle and (3) displaying "vulgar decals" in the department?s truck...


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