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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 31, 2014 at 07:00:00

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A written administrative employee evaluation that is not disciplinary in nature may be placed in an employees personnel file by the employer

Posted on October 31, 2014
A written administrative employee evaluation that is not disciplinary in nature may be placed in an employees personnel file by the employer2014 NY Slip Op 07360, Appellate Division, Second DepartmentA tenured teacher [Teacher] filed a CPLR Article 78 petition seeking a court order directing the school district to remove a certain letter from Teacher's personnel file...


Using the services of a private entity to select and provide qualified medical personnel to conduct medical examination required by Civil Service Law §72.1

Posted on October 30, 2014
Using the services of a private entity to select and provide qualified medical personnel to conduct medical examination required by Civil Service Law §72.1Agency v Anonymous, OATH Index #866/14  Civil Service Law §72.1, in pertinent part, provides: ?When in the judgment of an appointing authority an employee is unable to perform the duties of his or her position by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the workers' compensation law, the appointing authority may require such employee to undergo a medical examination to be conducted by a medical officer selected by the civil service department or municipal commission having jurisdiction...


Collective bargaining agreement determined to have clearly and unambiguously barred the arbitration of grievances involving layoff

Posted on October 29, 2014
Collective bargaining agreement determined to have clearly and unambiguously barred the arbitration of grievances involving layoff Matter of the Arbitration between Hudson Val. Community Coll. and Hudson Val. Community Coll. Faculty Assn., 2014 NY Slip Op 07240, Appellate Division, Third DepartmentChristine Raneri, a part-time adjunct professor employed by the Hudson Valley Community College (HVCC), was appointed as a full-time probationary teacher by the College in 2007...


Public employees speech concerning matters of a personal interest is not ?protected speech? within the ambit of the First Amendment

Posted on October 28, 2014
Public employees speech concerning matters of a personal interest is not ?protected speech? within the ambit of the First Amendment2014 NY Slip Op 07270, Appellate Division, First DepartmentAmong the issues considered in this appeal was the teacher?s [Teacher] claim that she had suffered retaliation as a result of her having sued the New York City Department of Education [NYCDE] and having made statements to the media...


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A department policy does not trump the probationary period established by law or by a rule or regulations having the force and effect of law

Posted on October 27, 2014
A department policy does not trump the probationary period established by law or by a rule or regulations having the force and effect of lawYan Ping Xu v New York City Dept. of Health & Mental Hygiene, 2014 NY Slip Op 07261, Appellate Division, First DepartmentOne of the issues in this Article 78 action concerned the termination of Yan Ping Xu [YPX], a New York City employee serving as a "City Research Scientist I," a position in the noncompetitive class ...


COLA increases for dollar limitations on benefits and contributions

Posted on October 27, 2014
Retirement plan contributions - limitations on benefits and contributions Source: The Internal Revenue ServiceThe Federal tax law places limits on the dollar amount of contributions to retirement plans and IRAs and the amount of benefits under a pension plan...


The custodian of public records demanded pursuant to a FOIL request electing to withhold some or all such records has the burden of demonstrating that the information requested falls within a statutory exemption

Posted on October 27, 2014
The custodian of public records demanded pursuant to a FOIL request electing to withhold some or all such records has the burden of demonstrating that the information requested falls within a statutory exemptionJaronczyk v Mangano, 2014 NY Slip Op 07164, Appellate Division, Second DepartmentThe basic concept underlying the Freedom of Information Law [FOIL] is that all government documents and records, other than those having access specifically limited by statute,* are available to the public...


An appointing authority may not ignore statutory procedures that deprive public employees of the protection of the statute

Posted on October 24, 2014
An appointing authority may not ignore statutory procedures that deprive public employees of the protection of the statuteThornton v Saugerties Cent. Sch. Dist., 2014 NY Slip Op 07046, Appellate Division, Third DepartmentThe School District?s [District] data administrator?s [Thornton] position was abolished for budgetary reasons upon the School District?s purchase of data management services from a Board of Cooperative Educational Services (BOCES)...


A legal opinion by a municipal attorney is advisory

Posted on October 23, 2014
A legal opinion by a municipal attorney is advisory Comptroller of the City of New York v Department of Fin. of the City of New YorkSupreme Court, New York County, 2014 NY Slip Op 24309, Supreme Court, New York CountyIn this special proceeding, the Comptroller of the City of New York [the Comptroller] asked Supreme Court to compel the City?s Department of Finance of the City of New York (DOF) to honor a subpoena served on it by the Comptroller...


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...


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...


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