Labor & Employment 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.
Post Frequency: 5/day Last Entry: November 20, 2009 at 08:20:00 Recent Entries: 1553
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Recognizing out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits ruled lawful
Posted on November 20, 2009Recognizing out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits ruled lawfulGodfrey v Spano, 2009 NY Slip Op 08474, Decided on November 19, 2009, Court of Appeals [Decided with Lewis v New York State Department of Civil Service]Plaintiffs in this action are taxpayers challenging directives recognizing out-of-state same-sex marriages for
Proof of a direct causal relationship between job duties and the resulting disability is sufficient to support awarding GML §207-a disability benefits
Posted on November 20, 2009Proof of a direct causal relationship between job duties and the resulting disability is sufficient to support awarding GML §207-a disability benefitsMatter of Ridge Rd. Fire Dist. v Schiano, 2009 NY Slip Op 08266, Decided on November 13, 2009, Appellate Division, Fourth DepartmentA collective bargaining agreement (CBA) entered into between the Ridge Road Fire District and the Ridge Road
School board?s statutory responsibility to call a special meeting of the district key to deciding an appeal seeking school superintendent's removal
Posted on November 20, 2009School board?s statutory responsibility to call a special meeting of the district key to deciding an appeal seeking school superintendent's removalApplication of Frank W. Kolbmann for the removal of Garry F. Stone as superintendent of schools of the Holland Central School District, Decision No...
Zone Sergeant's violation of a Division of State Police regulation and bringing discredit upon the Division justifies her demotion to Sergeant
Posted on November 20, 2009Zone Sergeant's violation of a Division of State Police regulation and bringing discredit upon the Division justifies her demotion to SergeantMatter of Revella v Felton, 60 A.D.3d 1184Christine A. Revella, a zone sergeant with the Division of State Police, was served with a notice of discipline alleging three violations of the Division's regulations as the result of an incident involving her
Statute of limitations for filing the violation of its duty of fair representation charge commences on the day member complained to union
Posted on November 20, 2009Statute of limitations for filing the violation of its duty of fair representation charge commences on the day member complained to unionLevi Mcintyre And Middle Island Administrators Association, PERB U-27349The Public Employment Relations Board affirmed the decision of its ALJ that dismissed as untimely, a duty of fair representation charge filed by Levi McIntyre...
Proof of mandatory membership required to effect a "tier" change
Posted on November 20, 2009Proof of mandatory membership required to effect a "tier" changeMatter of Giordano v New York State Teachers' Retirement Sys., 24 Misc.3d 1247Matthew Giordano filed a petition pursuant to CPLR Article 78 in an effort to have a vacate the New York State Teachers? Retirement System?s decision not to change his ?tier status with in the retirement system? from Tier II to Tier I...
Employee's promotion as an asset in divorce proceedings
Posted on November 20, 2009Employee's promotion as an asset in divorce proceedingsBystricky v Bystricky, Supreme Court, Nassau County, 177 Misc 2d 914Although this case deals with the marital assets of a police officer involved in a divorce, the decision suggests the court?s general approach to evaluating benefits resulting from promotions in the public service in divorce proceedings...
Processing PERB appeals
Posted on November 20, 2009Processing PERB appealsJardim v PERB, 265 A.D.2d 329In this action the Appellate Division held that LeRoy Jardim?s petition seeking review of the determination of the New York State Public Employment Relations Board was properly dismissed he failed to exhaust his administrative remedies, citing Watergate II Apts...
School district not required to provide for defense, nor provide for indemnification, in lawsuit it brought against former school board member
Posted on November 20, 2009School district not required to provide for defense, nor provide for indemnification, in lawsuit it brought against former school board memberMatter of Barkan v Roslyn Union Free School Dist., 2009 NY Slip Op 06541, decided on September 15, 2009, Appellate Division, Second DepartmentMichael F...
Employer?s denial of GLM §207-a(2) supplement to firefighters accidental retirement allowance based on unsworn statements held arbitrary
Posted on November 19, 2009Employer?s denial of GLM §207-a(2) supplement to firefighters accidental retirement allowance based on unsworn statements held arbitraryMatter of Ward v City of Long Beach, 2009 NY Slip Op 52297(U), Decided on October 30, 2009, Supreme Court, Nassau County, Judge Daniel R...
Administrative Law Judge holds that an employee's failure to report for drug testing must be treated as the equivalent of failing a drug test
Posted on November 19, 2009Administrative Law Judge holds that an employee's failure to report for drug testing must be treated as the equivalent of failing a drug testDepartment of Sanitation and Henry Morrison, OATH Index No. 894/09OATH Administrative Law Judge Kara Miller recommended termination for a sanitation worker, Henry Morrison, after finding that he was guilty of failing to be at home after reporting sick on two
Employee terminated after violating the terms of a disciplinary settlement
Posted on November 19, 2009Employee terminated after violating the terms of a disciplinary settlementMatter of Outley v Upstate Med. Univ., 60 A.D.3d 1398*Joanne Outley, an employee at SUNY?s Upstate Medical Center, was served with disciplinary charges alleging that she was guilty of excessive absences and disciplinary notifications UMC and Outley entered into a disciplinary settlement agreement that placed her on
Proof an enforceable past practice required to support alleged §209-a.1(d) violation
Posted on November 19, 2009Proof an enforceable past practice required to support alleged §209-a.1(d) violationNorth Colonie Teachers Association, NYSUP/AFT/ NEA/AFT/CIO and North Colonie Central School District, Board decision, U-27717The Board affirmed a decision of an ALJ dismissing an improper practice charge filed by the North Colonie Teachers Association (Association) alleging that the North Colonie Central School
An individual whose rights could be affected by a decision by the Commissioner of Education must be named as a necessary party to the action
Posted on November 19, 2009An individual whose rights could be affected by a decision by the Commissioner of Education must be named as a necessary party to the actionAppeal of Douglas Williams from action of the Board of Education of the North Colonie Central School District regarding an employment matter, Decisions of the Commissioner of Education, Decision No...
A village board is not bound absent its adoption of a resolution providing for an employee benefit claimed to have agreed upon orally
Posted on November 19, 2009A village board is not bound absent its adoption of a resolution providing for an employee benefit claimed to have agreed upon orallyGarrigan v Incorporated Vil. of Malverne, 59 A.D.3d 662In April 1957, Raymond Garrigan began employment as a Village of Malverne police officer...
Employee organization may elect not to act provided its decision is not improperly motivated
Posted on November 19, 2009Employee organization may elect not to act provided its decision is not improperly motivatedDaniel Farrey And District Council 37, AFSCME, AFL-CIO, Decisions of the Board, PERB U-27677The Public Employment Relations Board affirmed the decision of an ALJ dismissing a duty of fair representation charge filed by Daniel Farrey (Farrey) against District Council 37 (DC 37) with respect to negotiated
Failure to exhaust administrative remedy by not filing a contract grievance results in dismissal of terminated employee?s lawsuit
Posted on November 18, 2009Failure to exhaust administrative remedy by not filing a contract grievance results in dismissal of terminated employee?s lawsuitMatter of Cummings v Board of Education of Sharon Springs Cent. School District 60 A.D.3d 1138Ginger Cummings was terminated from her position as a school bus driver with the Sharon Springs Central School District because ?while off duty, she purportedly created and
Commissioner of Education asked to void collective bargaining agreement between school district and an employee organization
Posted on November 18, 2009Commissioner of Education asked to void collective bargaining agreement between school district and an employee organizationAppeal of Theresa Budich, from actions of the Board of Education of the Monroe-Woodbury Central School District relating to the ratification of a collective bargaining agreement, and application for the removal of Michael DiGeronimo as a member of the board...
County enjoined from surveying part-time workers as to their interest in CSEA continuing as their representative for the purposes of the Taylor Law
Posted on November 18, 2009County enjoined from surveying part-time workers as to their interest in CSEA continuing as their representative for the purposes of the Taylor LawMatter of New York State Pub. Empl. Relations Bd. v County of Monroe, 2009 NY Slip Op 52295(U), Decided on August 28, 2009, Supreme Court, Albany County, Judge Henry F...
Failure to appeal an administrative law judges ruling precludes the reopening of the issue in a subsequent proceeding
Posted on November 18, 2009Failure to appeal an administrative law judges ruling precludes the reopening of the issue in a subsequent proceedingMatter of Cipriano v Onondaga County Corrections, 60 A.D.3d 1120Onondaga County Assistant Corrections Commissioner Peter A. Cipriano suffered a heart attack and underwent coronary bypass surgery...
Employee organization charged employer had ?direct dealing? with unit members and refused to negotiate the impact of an assessment plan
Posted on November 18, 2009Employee organization charged employer had ?direct dealing? with unit members and refused to negotiate the impact of an assessment planDutchess United Educators and Dutchess Community College - PERB determinations U-27107, U-27371The Public Employment Relations Board affirmed the decision of an ALJ dismissing two charges filed by the Dutchess United Educators...
A ?special relationship? tempers a municipality?s immunity from liability for discretionary actions taken by its agents
Posted on November 18, 2009A ?special relationship? tempers a municipality?s immunity from liability for discretionary actions taken by its agentsAlvarado v City of New York, 60 A.D.3d 427Lenora Alvarado alleged that while acting as an interpreter for the New York City Police Department during the course of an investigation into a complaint of domestic violence, she was assaulted by a knife-wielding individual who was
Employee terminated after refusing to sign a statement acknowledging a ?verbal warning? given to her by her supervisor
Posted on November 18, 2009Employee terminated after refusing to sign a statement acknowledging a ?verbal warning? given to her by her supervisorMatter of Rey-calderon v Commissioner of Labor, 60 A.D.3d 1124Wanda Rey-calderon, a school bus dispatcher, for the employer reported late to work and her supervisor gave her a verbal warning and a written acknowledgment of the verbal warning for her to sign...
NYSERS?s Common Retirement Fund?s value up 16 Billion Dollars
Posted on November 18, 2009NYSERS?s Common Retirement Fund?s value up 16 Billion DollarsSource: Office of the State ComptrollerThe Office of the State Comptroller reports that the market value of the New York State Common Retirement Fund increased by more than sixteen billion dollars to approximately $126 billion as of September 30, 2009, a positive 18...
Unit member has limited rights in processing his or her grievance to arbitration
Posted on November 17, 2009Unit member has limited rights in processing his or her grievance to arbitrationRine v Higgins, 244 A.D.2d 963After his union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 264, demanded arbitration challenging Patrick J...
Compelling public employee to answer potentially incriminating questions without formal immunity grant -- Certiorari Denied
Posted on November 17, 2009Compelling public employee to answer potentially incriminating questions without formal immunity grant -- Certiorari DeniedSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H...
Probationer must prove dismissal was made in bad faith or for a statutorily or constitutionally impermissible reason
Posted on November 17, 2009Probationer must prove dismissal was made in bad faith or for a statutorily or constitutionally impermissible reasonMatter of Bonanno v Nassau County Civ. Serv. Commn., 59 A.D.3d 541Dorothy H. Bonanno, a probationary employee dismissed from her position, sued to regain her position alleging that her termination was arbitrary nor capricious...
Essentials of Education Law Section 3020-a ? Disciplinary procedures
Posted on November 17, 2009Essentials of Education Law Section 3020-a ? Disciplinary proceduresSource: Office of Teaching Incentives, NYS Department of EducationSection 3020-a of the Education Law, as amended by Chapter 691 of the Laws of 1994, provides that a tenured school district educator who has been charged with incompetence or misconduct may elect to have a hearing officer review the charges and make findings of
Defending and indemnifying an employee being sued for damages for acts or omissions that occurred in the performance of official duties
Posted on November 17, 2009Defending and indemnifying an employee being sued for damages for acts or omissions that occurred in the performance of official dutiesLarson v County of Seneca, 22 Misc.3d 1118In this action James R. Larson, a former undersheriff, Seneca County, asked Supreme Court for a declaration that Seneca County was obligated, pursuant to Public Officers Law Section 18,* to defend, indemnify and hold him
A police force is a quasi-military organization and its members are subject strict discipline
Posted on November 17, 2009A police force is a quasi-military organization and its members are subject strict disciplineMatter of Lundy v City of Oswego, 59 A.D.3d 954George Lundy sued the City of Oswego and its mayor in an effort to annul a Civil Service Law Section 75 determination terminating his employment as Oswego?s Chief of Police...
Employee terminated following positive random test for illegal drugs
Posted on November 17, 2009Employee terminated following positive random test for illegal drugsMatter of Randall Rice v Thomas Belfiore, 15 Misc.3d 1105 [see, also, 13 Misc.3d 1223]A disciplinary action was instituted after Randall Rice, a police officer with the County?s Department of Public Safety [DPS], tested positive for marijuana after a random drug test...
Work assignment limitation set out in 1990 grievance settlement held to continue in effect despite passage of time
Posted on November 16, 2009Work assignment limitation set out in 1990 grievance settlement held to continue in effect despite passage of timeGlenn Kersey v Washington Metropolitan Area Transit Authority, United States Court of Appeals, District of Columbia Circuit, Decided November 10, 2009, No...
Termination Did Not Violate FMLA Where Employee Failed to Return to Work After Being Released by Doctor
Posted on November 16, 2009Termination Did Not Violate FMLA Where Employee Failed to Return to Work After Being Released by DoctorSource: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2009. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission...
Termination by operation of law
Posted on November 16, 2009Termination by operation of lawMaldarelli v Doherty, 7 A.D.3d 384In some instances a public officer or employee otherwise entitled to a pre-termination hearing before he or she may be dismissed is automatically removed from his or her position by operation of law without being given any "notice and hearing...
Supervisor can face individual liability under Vermont law for employment discrimination
Posted on November 16, 2009Supervisor can face individual liability under Vermont law for employment discriminationSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...
Same offense, different disciplinary penalties imposed
Posted on November 16, 2009Same offense, different disciplinary penalties imposedWagner v Kerik, 298 A.D.2d 322Jones v Kerik, 298 A.D.2d 308Two different employees serving in the same agency are charged and found guilty of the same type of misconduct but the appointing authority imposes different penalties on each...
Seeking a stay of arbitration
Posted on November 16, 2009Seeking a stay of arbitrationCity of White Plains v Professional Firefighters Association, Local 274 I.A.F.F., App. Div., 298 A.D.2d 456From time to time a party to a collective bargaining agreement [CBA] will attempt to prevent a grievance from being submitted to an arbitrator by seeking a stay of arbitration pursuant to Article 75 of the Civil Practice Law and Rules...
Duty of Fair Representation
Posted on November 16, 2009Duty of Fair RepresentationIn Javier Perez and Professional Staff Congress and The City University Of New York (Hostos Community College), U-27574Adapted from decision summaries prepared by Public Employment Relations Board staff membersPERB Administrative Law Judge Cacavas held that where union member acknowledged that the union prepared his case with him, outlined its strategy, presented proof
Employee?s excellent work record and years of service insufficient to mitigate imposing a penalty of termination in view of the nature the misconduct
Posted on November 13, 2009Employee?s excellent work record and years of service insufficient to mitigate imposing a penalty of termination in view of the nature the misconductMatter of Sindoni v County of Tioga, 2009 NY Slip Op 08126, decided on November 12, 2009, Appellate Division, Third DepartmentPenny Sindoni, a senior typist employed by the County of Tioga was suspended and charged with misconduct and incompetence
The New York State Retirement System has the authority to investigate potential fraud or illegality concerning the receipt of public pension benefits
Posted on November 13, 2009The New York State Retirement System has the authority to investigate potential fraud or illegality concerning the receipt of public pension benefitsMatter of Hogan v Cuomo, 2009 NY Slip Op 08105, Decided on November 12, 2009, Appellate Division, Third DepartmentJohn B...
The terms of a negotiated settlement held a bar to future litigation to confirm a post-settlement arbitration award
Posted on November 13, 2009The terms of a negotiated settlement held a bar to future litigation to confirm a post-settlement arbitration awardMatter of Troeller v New York City Dept. of Educ., 2009 NY Slip Op 08133, decided on November 12, 2009, Appellate Division, First DepartmentNew York State Supreme Court Judge Eileen A...
Employee terminated after failing to comply with the terms of a §3020-a disciplinary penalty imposed by the hearing officer
Posted on November 13, 2009Employee terminated after failing to comply with the terms of a §3020-a disciplinary penalty imposed by the hearing officerHarris v Department of Education of the City of New York, 2009 NY Slip Op 08140, Decided on November 12, 2009, Appellate Division, First DepartmentThe penalty imposed by New York City Department of Education's (DOE) Section 3020-a Disciplinary Hearing Officer on Bruce Harris,
Advisory and binding arbitration
Posted on November 13, 2009Advisory and binding arbitrationBenjamin Rush Employees United v McCarthy, 76 NY2d 781The question of whether an arbitrator's determination is either advisory or binding is usually set out in the arbitration clause of the collective bargaining agreement...
Electing to proceed to arbitration despite an alleged failure to comply with the conditions precedent to arbitration
Posted on November 12, 2009Electing to proceed to arbitration despite an alleged failure to comply with the conditions precedent to arbitrationMatter of DeMartino v New York City Dept. of Transp., 2009 NY Slip Op 08073, decided on November 10, 2009, Appellate Division, First DepartmentThe Appellate Division affirmed the decision of New York State Supreme Court Judge Joan B...
To be effective, a waiver of a right to NYS Retirement System death benefit must satisfy three tests
Posted on November 12, 2009To be effective, a waiver of a right to a NYS Retirement System death benefit must satisfy three testsRice v DiNapoli, 2009 NY Slip Op 32573(U), November 5, 2009, Supreme Court, Albany County, Docket Number: 1915-09, Judge: Joseph C. Teresi [Not selected for publication in the Official Reports]Adam Rice, as Administrator of the Estate of Gary Rice, filed a lawsuit seeking a declaration that the
Attorney-Client privilege and e-mail communications
Posted on November 12, 2009Attorney-Client privilege and e-mail communicationsSource: Corporate Counsel e-magazine - November 11, 2009Corporate Counsel Magazine?s ?On-line? edition reports that New York Law Journal has published an article addressing the question of claiming attorney-client privilege for e-mails transmitted to lawyers using employer-provided e-mail and computers...
Supplementing a disability retirement allowance
Posted on November 12, 2009Supplementing a disability retirement allowanceFarber v City of Utica, Court of Appeals, 97 N.Y.2d 476 [see also 1 A.D.3d 942, Aff?d 28 A.D.3d 1198]Arthur T. Farber, a former City of Utica firefighter, was involuntarily retired after he was disabled in the line of duty...
Challenging a change in the work schedule
Posted on November 12, 2009Challenging a change in the work scheduleIn the Arbitration between Sullivan County and Teamsters Local 445, 294 A.D.2d 640, Motion for leave to appeal denied, 99 N.Y.2d 503This decision sets out the history of a series of decisions by the employer that the union challenged as violating the collective bargaining agreement...
Determining final average salary for retirement purposes - lump sum payments
Posted on November 10, 2009Determining final average salary for retirement purposes - lump sum paymentsWallon v NYS Teachers' Retirement System, 294 AD2d 644An employee's final average salary [FAS] is a critical element in determining the individual's retirement allowance. In the Wallon case the issue before the court concerned whether or not certain "lump sum payments" should have been included in determining the
New York Public Personnel Law (Kindle Edition)
Posted on November 10, 2009New York Public Personnel Law (Kindle Edition)Source: Amazon.comNew York Public Personnel Law is now available via your Kindle.A NYPPL subscription is auto-delivered wirelessly to your Kindle and updated throughout the day so you can stay current.Amazon indicates that NYPPL on Kindle is offered ?risk free...
Challenging party has the burden of proof in an appeal alleging misconduct on the part of a disciplinary action arbitrator or bias of the arbitrator
Posted on November 10, 2009Challenging party has the burden of proof in an appeal alleging misconduct on the part of a disciplinary action arbitrator or bias of the arbitratorMatter of Hayes v New York City Dept. of Educ., 2009 NY Slip Op 32575(U), November 4, 2009, Supreme Court, New York County, Docket Number: 100744/09Judge Michael D...
School board member's e-mail to other board members claimed to have violated educator's right to privacy
Posted on November 09, 2009School board member's e-mail to other board members claimed to have violated educator's right to privacySource: New Item - Eagle-Tribune [North Andover, MA], October 29, 2009Haverhill [Massachusetts] School Committee member Kerry Fitzgerald sent an e-mail to other board members suggesting that they ?could be sued if they discussed the performance of school employees by name at a public meeting...
Arbitration award vacated after court finds arbitrator exceed his authority
Posted on November 09, 2009Arbitration award vacated after court finds arbitrator exceed his authorityMatter of Manhattan & Bronx Surface Tr. Operating Auth. v Transport Workers Union of Am., Local 100, 2009 NY Slip Op 08013, decided on November 4, 2009, Appellate Division, Second DepartmentArticle 75 of Civil Practice sets out the very limited reasons that allow a court to vacate or modify an arbitration award...
Petitioner for approval to file a late notice of claim against a municipality must meet three tests
Posted on November 09, 2009Petitioner for approval to file a late notice of claim against a municipality must meet three testsMatter of Avalos v City of New York Bd. of Educ., 2009 NY Slip Op 08005, decided on November 4, 2009, Appellate Division, Second Department General Municipal Law §50-e...
Determining the direct line of promotion for eligibility for promotion examinations
Posted on November 09, 2009Determining the direct line of promotion for eligibility for promotion examinationsPalaia v Yonkers Civil Service Commission, 293 A.D.2d 479The Yonkers Civil Service Commission scheduled an examination for a competitive class position, Examination 61-134, Administrative Assistant, as an open-competitive examination...
Accidental disability retirement
Posted on November 09, 2009Accidental disability retirementPenkalski v McCall, 292 AD2d 735The definition of the term "accident" for the purpose of determining eligibility for an accidental disability retirement benefit was once again the key issue before the Appellate Division in resolving the Penkalski case...
Retaliatory Personnel Action
Posted on November 09, 2009Retaliatory Personnel ActionSource: AELE Law Enforcement Legal Center, http://www.aele.org/, Reproduced with permission. Copyright © 2009 AELEAELE has published an article entitled What constitutes employer retaliation?The article addresses performance ratings, blacklisting, unfriendly behavior, reassignments and transfers, and fitness for duty evaluations...
Adverse changes in the employees? working environment following their involvement in a protected activity deemed a ?constructive discharged?
Posted on November 06, 2009Adverse changes in the employees? working environment following their involvement in a protected activity deemed a ?constructive discharged?Albunio v City of New York, 2009 NY Slip Op 07928, Decided on November 5, 2009, Appellate Division, First DepartmentFollowing a jury trial, New York State Supreme Court, Judge Martin Shulman awarded Robert Sorrenti $491,706 plus attorney's fees in the amount
Evaluating claims for back pay upon reinstatement from a leave of absence
Posted on November 06, 2009Evaluating claims for back pay upon reinstatement from a leave of absenceMatter of New York State Correctional Officer & Police Benevolent Assn., Inc. v New York State Dept. of Correctional Servs., 2009 NY Slip Op 07720, decided on October 29, 2009, Appellate Division, Third DepartmentElsie Pierre, a correction officer, suffered a work-related injury and was placed on workers' compensation
Payments to an employee to induce him or her to resign rather that being served with charges not included in final average salary calculation
Posted on November 06, 2009Payments to an employee to induce him or her to resign rather that being served with charges not included in final average salary calculationHorowitz v NYS Teachers' Retirement System, App. Div., 3rd Dept., 293 AD2d 861The Horowitz case concerns the impact of making a lump-sum payment to an employee as an inducement to his or her submitting a resignation in lieu of being served with disciplinary
Employee?s claim of constructive notice of a triggering event underlying his or her applying for disability retirement rejected
Posted on November 06, 2009Employee?s claim of constructive notice of a triggering event underlying his or her applying for disability retirement rejectedMatter of Koebel v New York State Comptroller, 2009 NY Slip Op 07727, Decided on October 29, 2009, Appellate Division, Third DepartmentTeresa M...
News Related to Civil Rights Litigation
Posted on November 06, 2009News Related to Civil Rights LitigationSource: iNews © 2009 John D. Sargent - eeoinews@yahoo.com - All Rights ReservedU.S. Supreme CourtPublic Citizen?s most recent Sup Ct Watch list hereSCOTUSblog?s most recent Petitions to Watch hereRoss Runkel?s US Sup Ct Employment Law Cases ? Pending & decided hereOctober Term 2009Certiorari GrantedTitle VII Lewis, et al...
Election of retired public officers and employees to public office
Posted on November 05, 2009Civil Service Law §150 - Suspension of pension and annuity benefits during public employmentA number of reports of election results indicate that some successful candidates currently employed by a New York State public employer have announced their intention of retiring from their current position in the public service...
Authority of the Commissioner of Education to provide certain remedies in an Education Law Section 310 appeal
Posted on November 05, 2009Decisions of the Commissioner of Education, 15,596; 15,597From time to time a petitioner will ask the Commissioner of Education to provide redress in addition to sustaining his or her appeal from a decision by school administrators or a school board.In a recent decision the Commissioner noted that he does not have the authority to sanction or reprimand board members or district staff [see Matter
Violating the terms and conditions of a disciplinary probationary period
Posted on November 05, 2009Davis v Division of Military and Naval Affairs, 291 AD2d 778Disciplinary action was initiated against Randall Davis by his employer, the New York State Division of Military Affairs and Naval Affairs [DMNA], based on allegations that Davis was guilty of violating DMNA's Internet policy by using DMNA computers to visit inappropriate websites, including pornographic websites, and by using a
Absence from work without permission during a strike creates a rebuttable presumption that individuals so absent are participating in the strike
Posted on November 05, 2009Ahern [et al] v Jones, 292 A.D.2d 854Civil Service Law Section 210(2)(b), the Taylor Law, establishes a presumption that ?For purposes of this subdivision an employee who is absent from work without permission, or who abstains wholly or in part from the full performance of his duties in his [or her] normal manner without permission, on the date or dates when a strike occurs, shall be presumed to
Retaliatory Personnel Action
Posted on November 05, 2009Source: AELE Law Enforcement Legal Center, http://www.aele.org/, Reproduced with permission. Copyright © 2009 AELEAELE has published an article entitled What constitutes employer retaliation?The article addresses performance ratings, blacklisting, unfriendly behavior, reassignments and transfers, and fitness for duty evaluations...
Processing resignations
Posted on November 04, 2009Appeal of Christian Hodge from action of the Board of Education of the Gates-Chili Central School District regarding employment, Decisions of the Commissioner of Education, Decision No. 15,992Christian Hodge challenged the decision of the Board of Education of the Gates-Chili Central School District to ?accept his resignation? as director of physical education and athletics...
An appeal from a Section 3020-a disciplinary determination must be filed within 10-days
Posted on November 04, 2009Matter of Watkins v Board of Educ. of Port Jefferson Union Free School District, 26 A.D.3d 336Allen Watkins filed a petition pursuant to Article 78 challenging his termination following a disciplinary hearing held pursuant to Section 3020-a of the Education Law...
Tests applied by courts in resolving a challenge to an arbitration award
Posted on November 04, 2009Steuben County v CSEA Local 1000, 292 A.D.2d 810, Motion for leave to appeal denied, 98 N.Y.2d 606Unhappy with the decision of the arbitrator, Steuben County obtained an order from a State Supreme Court judge vacating the arbitrator's award. The Appellate Division reversed the lower court's decision, holding that:1...
Police officer required to show his or her disability occurred while performing the duties of his or her position to qualify for GML 207-c benefits
Posted on November 04, 2009White v Cortland County, Court of Appeals, 97 NY2d 336 The White case explores the nature of the proof that a claimant must demonstrate to qualify for benefits under General Municipal Law Section 207-c.*In this case, the Court of Appeals said that Herbert I...
Duty to defend and indemnify a public officer or employee being sued in his or her official capacity
Posted on November 04, 2009Bigger v Orange County, 293 A.D.2d 746Public Officers Law Section 18 authorizes a municipality to provide for the defense and indemnification of its officers and employees who are sued as a result of alleged acts or omissions involving the performance of their official duties...
Layoff/bumping to a lower grade position claimed to constitute age discrimination
Posted on November 04, 2009Roundtree v Niagara Falls CSD, 294 A.D.2d 876Ernest A. Roundtree had about 40 years of service. He was demoted to a lower grade position after he said he would not retire from his position of maintenance foreman with the Niagara Falls City School District...
Determining eligibility for accidental disability retirement after being assigned to serve in a ?light duty? position
Posted on November 03, 2009Matter of Keil v New York State Comptroller, 2009 NY Slip Op 07732, Decided on October 29, 2009, Appellate Division, Third DepartmentPolice officer Robert W. Keil suffered a shoulder injury in the line of duty. After a period of sick leave, it was determined that Keil was able to perform limited-duty work...
Determining if an employee?s job assignment constitutes out-of-title work
Posted on November 03, 2009Arciello v Nassau County, 1 A.D.3d 300The general rule is that Section 61.2 of the Civil Service Law bars an employee from performing out-of-title work, other than that out-of-title work being performed on an emergency basis. How is "out-of-title work" determined? As the Court of Appeals said in Gavigan v McCoy, 37 NY2d 548, the job specifications for a title determines those tasks which may be
Suspension without pay pending resolution of a disciplinary action
Posted on November 03, 2009Elmore v Mills, 296 AD2d 704Among the several issues considered by the Appellate Division, Third Department, in Elmore case was the suspension of a tenured teacher without pay pending resolution of disciplinary charges filed against the educator.Plainview-Old Bethpage Central School District filed disciplinary charges against Edwin Elmore pursuant to Section 3020-a of the Education Law...
Employee suffering an illness or injury while at work is entitled to the statutory presumption that the disability arose in the course of employment
Posted on November 02, 2009Matter of Browne v New York City Tr. Auth., 2009 NY Slip Op 07719, decided on October 29, 2009, Appellate Division, Third DepartmentThe Workers' Compensation Board ruled that there was no prima facie medical evidence that Rufus Browne, a New York City Transit Authority railroad track employee, claimed that he had suffered a work-related injury...
Exhausting administrative remedies
Posted on November 02, 2009Matter of Newfield Cent. School Dist. v New York State Div. of Human Rights, 2009 NY Slip Op 07731, decided on October 29, 2009, Appellate Division, Third DepartmentThe State Division of Human Rights [SDHR] received separate complaints from the parents of two male students that attend Newfield Central School District schools that their sons had been the victims of gender discrimination in the way
The Affordable Health Care for America Act
Posted on November 02, 2009Source: The House of Representative, Committee on Education and LaborThe text of the proposed Affordable Health Care for America Act is available on the Internet. Click here: H.R. 3962 to view a copy of this 1,990 page document.Also available are various documents explaining the House version of the Act explaining the bill and its scope prepared by the House Committee on Education and Labor at:
Employee not entitled to a due process hearing following denial of employer?s rejecting claim for GML 207-c benefits
Posted on November 02, 2009Matter of Schnurr v Nassau County, 2009 NY Slip Op 07853, Decided on October 27, 2009, Appellate Division, Second DepartmentThe Nassau County Sheriff's Department denied Lawrence Schnurr benefits pursuant to General Municipal Law §207-c. Schnurr appealed the Department?s decision, first to Supreme Court and subsequently the Appellate Division...
Application for disability retirement benefits must be timely filed
Posted on November 02, 2009Banks v NYS Employees' Retirement System, 271 AD2d 252 Section 62(aa)(2) of the Retirement and Social Security Law requires that a member seeking ordinary disability retirement benefits file his or her application for such benefits while actually in service or within 90 days of his or her discontinuance of service ...
Standing to challenge administrative decisions by certain individuals and groups
Posted on November 02, 2009Matter of Save the Pine Bush, Inc. v Common Council of the City of Albany, 2009 NY Slip Op 07667, decided on October 27, 2009, Court of AppealsIn this action, the Court of Appeals decided that ?a person who can prove that he or she uses and enjoys a natural resource more than most other members of the public has standing under the State Environmental Quality Review Act (SEQRA) to challenge
Notifying educators that they are assured of continued employment for the new academic year
Posted on October 30, 2009Matter of Lincoln v Commissioner of Labor, 2009 NY Slip Op 07706, decided on October 29, 2009, Appellate Division, Third DepartmentLabor Law §590 [10] provides that a professional employed by an educational institution is not eligible to receive unemployment insurance benefits between two successive academic years if "there is a reasonable assurance that the claimant will perform services in such
Standard of review for disciplinary penalties
Posted on October 30, 2009Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2009, All rights reserved http://lawprofessors.typepad.com/adminlaw/In a recent Arizona Court of Appeals decision, Coplan v. Ariz. St. Bd. of Appraisal, 1 CA-CV 08-0545 (October 22, 2009), the Court reversed a Superior Court decision overturning a disciplinary decision by the Board...
EEOC employment posters updated
Posted on October 30, 2009Source: The U.S. Equal Employment Opportunity CommissionEEOC Form EEOC-P/E-1) has been updated. The new version reflects current federal employment discrimination law (including the Americans with Disabilities Act Amendments Act of 2008 and information about the Genetic Information Nondiscrimination Act of 2008, which takes effect November 21, 2009...
Transferring unit work
Posted on October 30, 2009Matter of Yonkers Federation of Teachers, U-27599Adapted from decision summaries prepared by Public Employment Relations Board staff members An PERB Administrative Law Judge found that the School District transferred unit work that had been performed by the union to a nonunit employee in violation of the Act...
News Related to Civil Rights Litigation
Posted on October 30, 2009Source: iNews © 2009 John D. Sargent - eeoinews@yahoo.com - All Rights ReservedU.S. Supreme CourtPublic Citizen?s most recent U.S. Supreme Court Watch list hereSCOTUSblog?s most recent Petitions to Watch hereRoss Runkel?s US U.S. Supreme Court Employment Law Cases ? Pending & decided hereOctober Term 2009Cert GrantedTITLE VII Lewis, et al...
Ramsey v Town of Hempstead, 193
Posted on October 30, 2009Ramsey v Town of Hempstead, 193 Misc.2d 278Ramsey served as a Town of Hempstead Building Maintenance Foreman, a position that required the incumbent to possess a valid Class 5 driver's license. Ramsey was arrested and charged with driving while intoxicated [DWI]...
Volunteers are not employees for the purposes of Title VII
Posted on October 30, 2009York v NYC Bar Association, USCA2, Index 01-7908Alexandra York sued the New York Bar Association claiming that it had unlawfully discriminated against her in employment in violation of Title VII of the Civil Rights Act of 1964 [42 USC 2000e], the New York State Human Rights Law [Executive Law Section 290] and the New York City Administrative Code [Section 8-502]...
Assigning one individual to serve as the principal for two schools simultaneously
Posted on October 29, 2009Branch v Olean City School District, Commissioner of Education Decision 14,704In these times of financial hardship, some school districts may be considering combining certain administrative positions whereby one individual assumes oversight duties for activities that were previously assigned to two or more individuals...
Union?s duty of fair representation
Posted on October 29, 2009Matter Of Deborah Byron and United Federation Of Teachers, Local 2, PERB U-28001Adapted from decision summaries prepared by Public Employment Relations Board staff membersClaims against a union for breaching its duty of fair representation must show bad faith, arbitrariness or discrimination, as that term is defined by case law...
Applicant disqualified for unemployment insurance benefits after electing to take early retirement
Posted on October 29, 2009Pullano v Comm. of Labor, 294 A.D.2d 747The Pullano case cautions that unemployment insurance benefits are not available to individuals who elect to take advantage of "early retirement" incentives.Joseph R. Pullano was disqualified from receiving unemployment insurance benefits because it was determined that he voluntarily left his employment without good cause...
Attorney fees awarded to the employee
Posted on October 29, 2009Perez v NYS Dept. of Labor, 244 AD2d 844; 259 A.D.2d 161Served with disciplinary charges pursuant to Section 75 of the Civil Service Law, Hilton Perez was found guilty of misconduct and terminated from his position. The Appellate Division, however, annulled the determination as there was no evidence that the hearing officer who presided over Perez?s disciplinary hearing had been designated to
Confidentiality of disciplinary records ? agreement not to disclose
Posted on October 29, 2009LaRocca v Jericho UFSD, 220 AD2d 424The School District had filed disciplinary charges against the principal of one of its schools. Subsequently the Jericho School Board authorized its superintendent to negotiate a settlement that would dispose of the matter...
New York's STATEWIDE H1N1 VACCINATION CAMPAIGN
Posted on October 29, 2009Source: Executive Order 29Governor?s State Disaster Emergency Declaration together with President Obama?s National Emergency Declaration provides increased flexibility to local health departments and hospitals to respond to H1N1 FluIn response to requests for assistance from local governments across New York State including New York City, Governor David A...
Past practice inconsistent with earlier written policy cannot be relied upon to support a unilateral termination or modification of the practice
Posted on October 28, 2009Past practice inconsistent with earlier written policy cannot be relied upon to support a unilateral termination or modification of the practiceBoard Of Education Of The City School District Of The City Of New York, PERB Decision U-27711Adapted from decision summaries prepared by Public Employment Relations Board staff membersThe Board affirmed a decision by an Administrative Law Judge (ALJ)
Considering the employee?s personnel record in determining the severity of the disciplinary penalty to be imposed
Posted on October 28, 2009Considering the employee?s personnel record in determining the severity of the disciplinary penalty to be imposedWinters v Lakeland CSD, 295 A.D.2d 355, Reversed, 99 N.Y.2d 549Lakeland Central School District Head Custodian Hugh Winters was found guilty of a number of charges alleging misconduct, incompetence, and insubordination including his "removing and photocopying a document from the school
Limitations on the questioning of witnesses by administrative hearing officers
Posted on October 28, 2009Limitations on the questioning of witnesses by administrative hearing officersBretton v State of New York, 294 A.D.2d 226An administrative hearing officer has great latitude in his or her conducting a hearing but there are limits as the Bretton decision demonstrates...
Employee?s right to privacy to be decided on a case-by-case basis
Posted on October 28, 2009Employee?s right to privacy to be decided on a case-by-case basisCooksey v Boyer, 289 F.3d 513If the employer discloses that a public employee is under treatment related to his or her mental health, has the employer violated the individual's "constitutional rights to privacy and substantive due process...
Honoring health insurance claims filed by a former employee following his or her termination
Posted on October 28, 2009Honoring health insurance claims filed by a former employee following his or her terminationSchirmer v Town of Harrison, 294 AD2d 347Clearly, an employee enrolled in his or her employer's health insurance plan is able to file a claim for benefits while employed...
Preparing the workplace in the event the 2009 H1N1 virus attains pandemic proportions
Posted on October 27, 2009Preparing the workplace in the event the 2009 H1N1 virus attains pandemic proportionsSource: The U.S. Equal Employment Opportunity CommissionEEOC has published information addressing Titles I and V of the Americans with Disabilities Act (ADA) considerations when planning for the potential of pandemic influenza affecting employees in the workplace...
Appointing authority may decline to initiate disciplinary action against an individual after investigating a complaint alleging misconduct
Posted on October 27, 2009Appointing authority may decline to initiate disciplinary action against an individual after investigating a complaint alleging misconductAppeal of J.K., Commissioner of Education Decision 14,705, Appeal of Schachter, Commissioner of Education Decisions No...
Employee has a duty to answer job-related inquiries notwithstanding the advice of his or her attorney not to respond to such questions
Posted on October 27, 2009Employee has a duty to answer job-related inquiries notwithstanding the advice of his or her attorney not to respond to such questionsDelgado v Kerik, 294 A.D.2d 227One of the issues in the Delgado case concerned the duty of a public officer or employee to answer questions directly related to the performance of his or her duties in the course of an administrative investigation or official
Determining the appropriate negotiating unit vested in PERB
Posted on October 27, 2009Determining the appropriate negotiating unit vested in PERBDistrict Council 82 and State of New York, 34 PERB 3038When determining the placement of positions in an appropriate unit for the purposes of collective bargaining PERB is not bound by the stipulation of the employer and the employee organization as to the most appropriate unit and the fact that the fragmentation of a negotiating unit may
Applying the ?the preponderance of the evidence standard? in an administrative disciplinary action
Posted on October 27, 2009Applying the ?the preponderance of the evidence standard? in an administrative disciplinary actionWilliams v Nicoletti, 295 A.D.2d 353City of White Plains motor equipment operator Robert Williams held a New York State Commercial Driver's License. The City had Williams submit to a random drug test because, it contended, federal law required the City to conduct random drug testing of its employees
Resignation because of an inability to get along with co-workers voids Unemployment Insurance claim
Posted on October 27, 2009Resignation because of an inability to get along with co-workers voids Unemployment Insurance claimGines v Comm. of Labor, 294 A.D.2d 748Jose Gines worked for the New York State Unified Court System in the law library at the Appellate Division, Second Department...
3rd Circuit Court reverses itself in pay bias case, cites Ledbetter Act
Posted on October 26, 20093rd Circuit Court reverses itself in pay bias case, cites Ledbetter ActMikula v Allegheny County, Penn, ___F.3d___(3rd Cir. September 10, 2009),Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H...
Excessive absenteeism as a basis for the termination of employment
Posted on October 26, 2009Excessive absenteeism as a basis for the termination of employmentMatter of Cherry v Horn, 2009 NY Slip Op 07491, Decided on October 22, 2009, Appellate Division, First DepartmentBernard Cherry?s challenged his termination from his position with the New York City Department of Corrections as a corrections officer...
Collecting ?too much garbage? results in disciplinary charges filed against NYC Department of Sanitation workers
Posted on October 26, 2009Collecting ?too much garbage? results in disciplinary charges filed against NYC Department of Sanitation workersIn the Matter of NYC Department Of Sanitation against Wessie Jefferies and Paul Andruszkiewicz, OATH Index Nos. 2529/09 & 2530/09In the Matter of NYC Department of Sanitation against Keith Kaplan and Juan Ortega, OATH Index Nos...
Negotiated alternatives to statutory disciplinary procedures permissible
Posted on October 26, 2009Negotiated alternatives to statutory disciplinary procedures permissibleFortune v Div. of State Police, 293 AD2d 154The issue in the Fortune case: May a collective bargaining disciplinary procedure supersede statutory disciplinary due process requirements such as those set out in Section 75 of the Civil Service Law or Section 3020-a of the Education Law? In a word: yes!The Appellate Division
Teacher?s tenure area and teaching certificates control the individual?s reemployment rights following a layoff
Posted on October 26, 2009Teacher?s tenure area and teaching certificates control the individual?s reemployment rights following a layoffDavis v Mills, NYS Court of Appeals, 98 NY2d 120Maxine Davis challenged the Commissioner of Education's determination that she did not have a statutory right to re-employment an elementary school counselor after she was "excessed" from the position of school psychologist...
Timeliness of evidence to be used in a disciplinary hearing
Posted on October 26, 2009Timeliness of evidence to be used in a disciplinary hearingWojewodzic v O'Neill, 295 AD2d. 670Section 75.4 of the Civil Service Law requires that disciplinary action against an individual be initiated within eighteen months of the occurrence of the alleged act or acts of incompetency or misconduct except in cases where the alleged incompetency or misconduct charged would, if proved in a court of
Court review of the disciplinary penalty imposed by an appointing authority limited
Posted on October 26, 2009Court review of the disciplinary penalty imposed by an appointing authority limitedJackson v Kerik, 295 A.D.2d 193The Appellate Division, First Department, citing Kelly v Safir, 96 NY2d 32, said that an administrative disciplinary penalty must be sustained by the courts unless it is ?so disproportionate to the offense as to be shocking to one's sense of fairness...
California?s public retirement systems allege ?investment fraud? cost the systems ?tens of millions of dollars?
Posted on October 23, 2009California?s public retirement systems allege ?investment fraud? cost the systems ?tens of millions of dollars? Source: FindLaw, a Thomson Reuters BusinessFindLaw reports ?State Street Bank and Trust was sued by California Attorney General Jerry Brown's office today, accusing the Boston, Massachusetts bank of massive, "unconscionable" investment fraud by overcharging the California Public
Administrative Law Judge recommends that sexual harassment charges filed by Sheriff?s former secretary be dismissed
Posted on October 23, 2009Administrative Law Judge recommends that sexual harassment charges filed by Sheriff?s former secretary be dismissedMatter of Korherr and Tompkins County , New York State Division of Human Rightgs, Case #10120056, Decided October 9, 2009New York State Division of Human Rights Administrative Law Judge Edward Luban has recommended that the charges of sexual harassment filed against Tompkins County
Employee?s separation pursuant to Section 73 of the Civil Service Law found unwarranted
Posted on October 23, 2009Employee?s separation pursuant to Section 73 of the Civil Service Law found unwarrantedIn the Matter of Department of Correction against A. S.*, OATH Index No. 2448/09The New York City Department of Correction sought to terminate a correction officer, A...
Employee?s failure to reimburse employer for disability benefits that were paid but to which he or she was not entitled constitutes unjust enrichment
Posted on October 23, 2009Employee?s failure to reimburse employer for disability benefits that were paid but to which he or she was not entitled constitutes unjust enrichmentCounty of Westchester v Sheehan, 292 AD2d 486A firefighter or law enforcement officer claims he or she was disabled while performing official duties and thus is eligible for benefits pursuant to General Municipal Law Section 207-a [firefighters] or
Direct dealing with employees in a negotiating unit
Posted on October 23, 2009Direct dealing with employees in a negotiating unitSuffolk County Asso. of Municipal Employees, 34 PERB 3034A legislative body may not unilaterally provide an individual with a benefit if the legislature's action adversely affects the union's representation rights and has an impact on the benefits it has negotiated for employees in the unit.
Collateral Estoppel may bar a lawsuit involving essentially the same issues earlier adjudicated in a quasi-judicial administrative hearing
Posted on October 23, 2009Collateral Estoppel may bar a lawsuit involving essentially the same issues earlier adjudicated in a quasi-judicial administrative hearingPisano v NYC Board of Education, 303 A.D.2d 735Sometimes an individual, unsuccessful in one lawsuit, will commence another legal action involving essentially the same issues and parties...
Confidentiality of disciplinary records
Posted on October 23, 2009Confidentiality of disciplinary recordsSangirardi v Nassau County, Justice Alpert, [Not official reported]In deciding the Sangirardi case, Supreme Court, Nassau County, considered the right of a student complainant to see the "Final Results" of a college disciplinary hearing held following her filing her complaint...
Petition alleging a disability was the basis for misconduct must present evidence of a causal connection between the misconduct and the disability
Posted on October 22, 2009Petition alleging a disability was the basis for misconduct must present evidence of a causal connection between the misconduct and the disabilityHawkins v City Univ. of N.Y., 2009 NY Slip Op 07487, decided on October 22, 2009, Appellate Division, First DepartmentSupreme Court denied the University?s motion for summary judgment dismissing Curtis Hawkins? petition challenging his termination from
Attorney barred from practicing before the New York City Office of Administrative Trials and Hearings [OATH]
Posted on October 22, 2009Attorney barred from practicing before the New York City Office of Administrative Trials and Hearings [OATH]In the Matter of Department of Education v Craig Brust, OATH Index. No. 2280/07The Chief Administrative Law Judge suspended an attorney indefinitely from practicing before OATH for willfully and persistently violating Section 1-13 of its rules of practice during a disciplinary hearing being
Nonmandatory unitary demands may not be included in an interest arbitration petition
Posted on October 22, 2009Nonmandatory unitary demands may not be included in an interest arbitration petitionHighland Falls Patrolmen?s Benevolent Association, Inc., PERB Decisions U-26843 & U-26844Adapted from decision summaries prepared by Public Employment Relations Board staff membersPERB held that the employee organization violated §209-a...
Providing a comprehensive report concerning a work-related injury may prove critical in establishing eligibility for benefits
Posted on October 22, 2009Providing a comprehensive report concerning a work-related injury may prove critical in establishing eligibility for benefitsSlagle v McCall, 293 AD2d 923The Slagle decision illustrates the importance of including "all the details" when completing a report of an on-the-job injury...
Payment of vacation accruals upon separation
Posted on October 22, 2009Payment of vacation accruals upon separationParoli v Dutchess County, 292 AD2d 513Although it may be assumed that a individual must be in "good standing" in order to receive a particular benefit, the Paroli decision demonstrates that such a requirement must be spelled out in the controlling law, rule, regulation or policy...
Appointing authority not required to postponing an administrative disciplinary action despite a pending related criminal action
Posted on October 22, 2009Appointing authority not required to postponing an administrative disciplinary action despite a pending related criminal actionMatter of Watson v City of Jamestown, 27 AD3d 1183The bottom line in the Watson decision: An individual does not have a right to delay an administrative disciplinary proceeding pending the resolution of criminal action based on related acts or omissions...
Employee?s personnel records used in setting a disciplinary penalty
Posted on October 21, 2009Employee?s personnel records used in setting a disciplinary penaltyLevy v Workers' Comp. Board, App. Div., 292 A.D.2d 388; Appeal dismissed: 98 N.Y.2d 692In the course of conducting a hearing, Workers' Compensation Board [WCB] Administrative Law Judge Herbert L...
Designating an individual as confidential
Posted on October 21, 2009Designating an individual as confidentialRockland County BOCES, 34 PERB 3032Despite the fact that an administrator having labor relations, grievance processing and collective bargaining responsibilities had not been formally designated a managerial employee, his or her immediate clerical support assistants should be designated confidential based on the nature of their duties assisting the
Extending an employee?s probationary period
Posted on October 21, 2009Extending an employee?s probationary periodSmith v NYC Dept. of Correction, 292 A.D.2d 198In the Smith case the Appellate Division considered a number of aspects of probation upon appointment and the extension of an employee's probationary period. This provides an opportunity to review the decision and to explore some related aspects of probationary status...
Arbitrating an employee?s dismissal following a positive random drug test
Posted on October 21, 2009Arbitrating an employee?s dismissal following a positive random drug testLocal 333, United Marine Division, International Longshoreman's Association, AFL-CIO, Petitioner-Appellant, v New York City Department of Transportation, 35 AD3d 211; Motion for leave to appeal denied, 9 N...
Only a not-for-profit corporation performing a governmental function is subject to the Freedom of Information Law
Posted on October 21, 2009Only a not-for-profit corporation performing a governmental function is subject to the Freedom of Information LawMatter of Rumore v Board of Educ. of City School Dist. of Buffalo, 35 A.D.3d 1178; Motion to appeal denied, 8 N.Y.3d 810Philip Rumore, president of the Buffalo Teachers Federation, sought a court order directing the Board of Education of the City School District of Buffalo (Board) and
School district to make comparable work available to all displaced unit members after awarding private contracts for the transportation of students
Posted on October 20, 2009School district to make comparable work available to all displaced unit members after awarding private contracts for the transportation of studentsMatter of the Manhasset Union Free School District?s , PERB Decision U-26091Adapted from decision summaries prepared by Public Employment Relations Board staff membersThis action resulted from the Manhasset Union Free School District?s unilateral
Placement on an ?Ineligible List?
Posted on October 20, 2009Placement on an ?Ineligible List?Spata v Levy, 306 A.D.2d 534Undoubtedly readers are familiar with "eligibility lists." Some may not be aware of the fact that some public employers may establish an "ineligible list" barring an individual whose name appear on the list from employment by that entity...
COLA pension increases enhance Section 207-a retirement benefits
Posted on October 20, 2009COLA pension increases enhance Section 207-a retirement benefitsWise v Jennings, 290 AD2d 702, 703, lv denied 97 NY2d 612Section 207-a of the General Municipal Law provides that firefighters who retire after suffering a work-connected disability are to receive employer-paid supplements to their retirement allowance until their mandatory age of retirement...
If a portion of an arbitration award to be vacated cannot be vacated without affecting the remainder, the award must be vacated in its entirety
Posted on October 19, 2009If a portion of an arbitration award to be vacated cannot be vacated without affecting the remainder, the award must be vacated in its entiretyMatter of Buffalo Professional Firefighters Assn., Inc. v Masiello, 2009 NY Slip Op 07324, Decided on October 15, 2009, Court of AppealsRecognizing that stalled collective bargaining negotiations between municipalities and police or firefighters' unions
School officials and educators immune from liability if a report of child abuse and maltreatment is made to a child protective agency in good faith
Posted on October 19, 2009School officials and educators immune from liability if a report of child abuse and maltreatment is made to a child protective agency in good faithBiondo v Ossining Union Free School Dist., 2009 NY Slip Op 07368, decided on October 13, 2009, Appellate Division, Second DepartmentMarcia Biondo and her husband sued the Ossining Union Free School District to recover damages for alleged negligence and
Public sector union representing public employees in an agency shop may charge nonmember employees in the negotiating unit fees in lieu of dues
Posted on October 19, 2009Public sector union representing public employees in an agency shop may charge nonmember employees in the negotiating unit certain fees in lieu of duesSeidemann v. Bowen, United States Court of Appeals for the Second Circuit, Decided: October 15, 2009, Docket No...
Running of the statute of limitations for filing complaint with PERB
Posted on October 19, 2009Running of the statute of limitations for filing complaint with PERBPatrick Haughey and NYS Court Clerks Association, 34 PERB 3041Commenting that a union is not required to agree with a unit member's interpretation of the collective bargaining agreement, PERB ruled that an employee's charge alleging that the employee organization violated its duty of fair representation filed one year after the
Name-clearing hearings following termination available to clear stigmatizing material in the individual?s personnel file
Posted on October 19, 2009Name-clearing hearings following termination available to clear stigmatizing material in the individual?s personnel fileMatter of Johnson v Kelly, 35 AD3d 297Kevin Johnson, because he served as a probationary police officer, could be terminated from his position without a hearing or a statement of reasons, for any reason or no reason at all, so long as the dismissal was not made in bad faith, was
IRS Pension Plan Limitations for 2010 announced
Posted on October 19, 2009IRS Pension Plan Limitations for 2010 announcedSource: IRS Employee Plans NewsletterThe 2010 Cost-of-Living-Adjustments [COLAs] for determining annual limits for most retirement plans remain the same as in 2009 except changes have been made with respect to:1...
Individual designated to make a disciplinary determination in lieu of the appointing authority must be in the agency's ?chain of command?
Posted on October 16, 2009Individual designated to make a disciplinary determination in lieu of the appointing authority must be in the agency's ?chain of command?Matter of Gomez v Stout, 2009 NY Slip Op 07327, Decided on October 15, 2009, Court of AppealsValerie Gomez, an Assistant Games Manager at a facility operated by the Westchester County Department of Parks, Recreation and Conservation, was served with disciplinary
PERB rules that police disciplinary procedures is a mandatory subject of negotiations notwithstanding the provisions of Town Law §§154 and 155
Posted on October 16, 2009PERB rules that police disciplinary procedures is a mandatory subject of negotiations notwithstanding the provisions of Town Law §§154 and 155Matter of the Town of Wallkill, PERB Decision U-27426Adapted from decision summaries prepared by Public Employment Relations Board staff membersThe New York Public Employment Relations Board affirmed its Administrative Law Judge?s decision concluding that
Employer not vicariously liable for on-the-job assault
Posted on October 16, 2009Employer not vicariously liable for on-the-job assaultHahne v State of New York, 290 AD2d 858The Hahne case illustrates the point that an employee who suffers a job-related injury must look to the Workers' Compensation Law for redress.Jacqueline Hahne was employed as a data entry clerk by State Department of Environmental Conservation...
Constructive dismissal
Posted on October 16, 2009Constructive dismissalGraziano v NYS Division of State Police, 198 F. Supp. 2d 570, Affirmed 275 F. 2d 28One of the elements in the Graziano case was Graziano's representation that although he had resigned from his position, his separation, in fact, constituted a constructive dismissal...
Defamation via the Internet
Posted on October 16, 2009Defamation via the InternetFirth v State of New York, NYS Court of Appeals, 98 NY2d 365 From time to time, an individual will sue a public employer contending that he or she was defamed because of the employer's dissemination of information concerning his or her performance of official duties that the individual considers demeaning or embarrassing...
Retiree?s new spouse eligible for enrollment for dependent health insurance coverage
Posted on October 15, 2009Retiree?s new spouse eligible for enrollment for dependent health insurance coverageGiblin v Village of Johnson City, 2009 NY Slip Op 52024(U), Decided on October 6, 2009, Supreme Court, Broome County, Judge Ferris D. Lebous, [Not selected for publication in the Official Reports]William Giblin was a member of the Village's Fire Department until his retirement on September 21, 2000...
Reevaluation of unit position results in its placement in a different negotiating unit based on an analysis of ?community of interest?
Posted on October 15, 2009Reevaluation of unit position results in its placement in a different negotiating unit based on an analysis of ?community of interest?Middle Country Teachers Association And Middle Country Central School District, Representation decision CP-1116Adapted from decision summaries prepared by Public Employment Relations Board staff membersWhere District reevaluated its technology program upon the
Employer liable for training exercise injury because training school was a proprietary operation not a government function
Posted on October 15, 2009Employer liable for training exercise injury because training school was a proprietary operation not a government functionLemery v Village of Cambridge, 290 A.D.2d 765.Washington County deputy sheriff Todd L. Lemery enrolled in a police training school sponsored by the Village of Cambridge and sanctioned by the Municipal Police Training Council of the State's Division of Criminal Justice Services
Forfeiture of retirement benefits
Posted on October 15, 2009Forfeiture of retirement benefitsCastro v Safir, 291 AD2d 212The basic issue in the Castro case: Was New York City police officer Antonio Castro lawfully dismissed from his position prior to the effective date of his retirement? If he were so removed, any pension benefits to which he would otherwise be entitled would be forfeited pursuant to Section 13-173...
Town official subject to removal from office as the result of a conflict of interest
Posted on October 15, 2009Town official subject to removal from office as the result of a conflict of interestWest v Grant, 243 AD2d 815Nancy M. West sued to have Victor R. Grant, Supervisor, Town of Lake Luzerne, removed from his position because of an alleged conflict of interest...
Contract designating an individual as an ?independent contractor? may not be controlling
Posted on October 14, 2009Contract designating an individual as an ?independent contractor? may not be controllingMatter of Brown v City of Rome, 2009 NY Slip Op 07174, decided on October 8, 2009, Appellate Division, Third DepartmentMichael David Brown entered into an agreement with the City of Rome to provide guidance to certain community organizations and to develop and implement various urban renewal initiatives.
Former employee may pursue a grievance seeking benefits provided by the collective bargaining in force at the time of his or her retirement
Posted on October 14, 2009Former employee may pursue a grievance seeking benefits provided by the collective bargaining in force at the time of his or her retirementUnion Endicott Cent. School Dist. v Endicott Teachers' Assn., 2009 NY Slip Op 52025(U), decided on October 6, 2009, Supreme Court, Broome County, Judge Ferris D...
Determining negotiating units
Posted on October 14, 2009Determining negotiating unitsRockland County v PERB, 295 A.D.2d 790Rockland County appealed a determination by the Public Employment Relations Board [PERB] removing investigative aides working for the Rockland County District Attorney's office from an existing bargaining unit...
Name-clearing hearings
Posted on October 14, 2009Name-clearing hearingsQuinn v Shirey, CA6, 293 F.3d 315Sometimes a probationary employee appointed to a position in the competitive class is terminated during his or her probationary period. If the individual is terminated before he or she has completed the minimum period of probation set for the position, he or she is typically entitled to notice and hearing as provided by Section 75 of the
Preferred list rights following layoff
Posted on October 14, 2009Preferred list rights following layoffBojarczuk v Mills, 98 NY2d 663Joseph T. Bojarczuk was excessed when the Utica City School District abolished his position when the Oneida-Herkimer-Madison Board of Cooperative Educational Services (BOCES) took over its Alternative Educational Program...
Exhaustion of administrative remedies
Posted on October 14, 2009Exhaustion of administrative remediesFormica v Huntington, 295 AD2d 400The exhaustion of the administrative remedies available to an individual is generally viewed as a condition precedent to the individual being able to maintain litigation challenging some act or omission by an administrative agency or official...
If the issue involves pure statutory reading and analysis, courts need not defer to the agency?s expertise in adjudicating its administrative decision
Posted on October 13, 2009If the issue involves pure statutory reading and analysis, courts need not defer to the agency?s expertise in adjudicating its administrative decisionMatter of Raganella v New York City Civ. Serv. Commn., 2009 NY Slip Op 07206, Decided on October 8, 2009, Appellate Division, First DepartmentAnthony J...
Returning to work from FMLA leave for 3 minutes before termination violated FMLA
Posted on October 13, 2009Returning to work from FMLA leave for 3 minutes before termination violated FMLASource: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2009. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation...
Individual lacks standing to purse an alleged violation of §209-a.1(d) of the Civil Service Law
Posted on October 13, 2009Individual lacks standing to purse an alleged violation of §209-a.1(d) of the Civil Service LawState Of New York (Department of Correctional Services)(Biegel), Board Decision U-28834Adapted from decision summaries prepared by Public Employment Relations Board staff membersThe New York State Public Employment Relations Board affirmed a decision by the Director of Public Employment Practices and
Disciplinary charges dismissed based on the hearing officer?s finding that the employer did not prove the allegations made against the individual
Posted on October 01, 2009Disciplinary charges dismissed based on the hearing officer?s finding that the employer did not prove the allegations made against the individualNew York City Department of Sanitation v Seagers, OATH Index #3547/09The Department of Sanitation did not prove that an employee, Dean Seagers, engaged in misconduct when he arrived late to work and failed to sign out...
Determining eligibility for disability retirement benefits where there are conflicting medical opinions
Posted on October 01, 2009Determining eligibility for disability retirement benefits where there are conflicting medical opinionsMatter of Hammond-Timpano v New York State & Local Retirement System, 2009 NY Slip Op 06627, Decided on September 24, 2009, Appellate Division, Third DepartmentGina M...
Reliance on the findings of the disciplinary hearing officer
Posted on October 01, 2009Reliance on the findings of the disciplinary hearing officerMatter of Chiarelly v Watertown City School Dist. Bd. of Educ., 34 AD3d 1219Thomas Chiarelly challenged the determination of the Watertown City School District Board of Education (Board) terminating him from his position of cleaner at the Watertown High School...
Substantial evidence required to support disciplinary determination
Posted on October 01, 2009Substantial evidence required to support disciplinary determinationCestare v Town of Islip, 34 AD3d 672,Duda v Board of Educ. of Uniondale Union Free School Dist, 34 AD3d 580The Town of Islip filed disciplinary charges against Town Park Ranger Jerry Cestare pursuant to Section 75 of the Civil Service Law...
Pressing Whistleblower claims
Posted on October 01, 2009Pressing Whistleblower claimsKeskin v State of New York, NYS Court of Claims, 14 Misc.3d 537New York State?s "whistleblower" statutes? (Civil Service Law §75-b; Labor Law §740) provide certain protections to an employee who discloses to a governmental body (Civil Service Law §75-b) or discloses or threatens to disclose to an employer or public body (Labor Law §740), information concerning a
Clerical error in recording an educator?s tenure area does not vest educator with tenure in the tenure area recorded
Posted on September 30, 2009Clerical error in recording an educator?s tenure area does not vest educator with tenure in the tenure area recordedAppeal of Janice Walters from action of the Board of Education of the City School District of the City of Cortland, Superintendent Laurence Spring and Lydia Eberenz-Rosero regarding the appointment of an elementary principal, Decisions of the Commissioner of Education No.
Educator ineligible for unemployment insurance between academic years if give reasonable reassurance of reemployment
Posted on September 30, 2009Educator ineligible for unemployment insurance between academic years if give reasonable reassurance of reemploymentMatter of Jeanty v Commissioner of Labor, 2009 NY Slip Op 06625, decided on September 24, 2009, Appellate Division, Third DepartmentRecognizing that the majority of educators serve a 10-month professional obligation for the academic year, Labor Law §590(10) bars a individual
Employer?s good faith effort to serve a notice of disciplinary charges crucial
Posted on September 30, 2009Employer?s good faith effort to serve a notice of disciplinary charges crucialMatter of DiPillo v Jacknis, 13 Misc 3d 1226(A)Arthur DiPillo was dismissed from his position with Westchester County?s Department of Information Technology after being found guilty of the charges filed against him by the hearing officer...
Disrupting a public meeting
Posted on September 30, 2009Disrupting a public meetingPeople v Albra (Azem), 13 Misc 3d 64Although the Town of Fishkill Board announced that members of the public would be permitted to speak during its meeting about any of the topics on the agenda, Azem Albra insisted on speaking about items not on the agenda...
Arbitrators may make an award reflecting the spirit of an agreement
Posted on September 30, 2009Arbitrators may make an award reflecting the spirit of an agreementMatter of Arbitration Between Civ. Serv. Employees Assn. Inc. Local 1000 AFSCME AFL-CIO Niagara Falls Bridge Commn. Unit Niagara County Local 832, 32 AD3d 1186The Appellate Division, Fourth Department ruled that a Supreme Court Justice properly granted CSEA?s petition to confirm an arbitration award and denied the Niagara Falls
Access to a report prepared for a public employer concerning allegations of workplace misconduct on the part of an employee.
Posted on September 29, 2009Access to a report prepared for a public employer concerning allegations of workplace misconduct on the part of an employee.Advisory Opinion, Committee on Open Government concerning the application of the Freedom of Information Law* An employee of the Schenectady City School District, Steven Raucci, is the subject of 26 criminal charges and is alleged to have engaged in a pattern of
No portal-to-portal pay if work requirements involved in an employees? commuting to and, or, from work is found de minimus
Posted on September 29, 2009No portal-to-portal pay if work requirements involved in an employees? commuting to and, or, from work is found de minimusClarke v. City of New York, Second Circuit Court of Appeals, Nos. 08-6039-cv, 08-6189-cv, decided September 22, 2009The Circuit Court affirmed a federal district court?s ruling dismissing the complaint filed by Shirley Clarke on her behalf and on the behalf of a number of
Video assists in establishing the employee?s innocence in disciplinary hearing
Posted on September 29, 2009Video assists in establishing the employee?s innocence in disciplinary hearingNew York City Department of Education, OATH Index #2273/09Administrative Law Judge Alessandra F. Zorgniotti recommended that disciplinary charges filed against John Fleischmann, a New York City Board of Education custodian accused of failing to notify his supervisor about a gas emergency be dismissed...
Challenging disqualification for a position
Posted on September 29, 2009Challenging disqualification for a position George Thorsen v Nassau County Civil Service Commission, 32 AD3d 1037 The Nassau County Civil Service Commission disqualified George Thorsen for the position of Nassau County Director of Probation. Thorsen sued and won a judgment holding that he was qualified for the position and requiring the Commission to process his
Diminution of employment benefits may constitute disciplinary action
Posted on September 29, 2009Diminution of employment benefits may constitute disciplinary action Matter of Lynch v Board of Education of the Hewlett-Woodmere Union Free School District, 13 Misc 3d 1208(A). The School District changed the work schedule of a school bus driver and part time security aide...
Claiming damages for alleged unlawful discrimination
Posted on September 29, 2009Claiming damages for alleged unlawful discriminationDiLauria v Town of Harrison, 32 AD3d 490 A police officer brought two lawsuits against the Town of Harrison in an effort to recover damages for alleged unlawful discrimination based upon disability. The first was an Article 78 action for ?economic benefits derivable from his status as a police officer? that DiLauria claimed he had lost...
Counseling memoranda may constitute disciplinary action
Posted on September 29, 2009Counseling memoranda may constitute disciplinary action Matter of Harper v New York State Off. of Mental Health, 12 Misc 3d 1197(A) Brinsley Harper received a written ?counseling memorandum? following an investigation of a complaint alleging sexual harassment filed against him by one of his subordinates...
Lesbian, gay, bisexual & transgender (LGBT) employees seek protection from workplace discrimination
Posted on September 27, 2009Lesbian, gay, bisexual & transgender (LGBT) employees seek protection from workplace discriminationSource: Posted on the Internet in CCH Workday at http://cch-workday.blogspot.com/ . Reproduced with permission. Copyright© CCH 2009, All rights reserved...
Probationary termination of a classified service employee by a school district
Posted on September 26, 2009Probationary termination of a classified service employee by a school districtAppeal of Jeffrey Brewer, Decisions of the Commissioner of Education; Decision No. 15,473 Jeffrey Brewer was employed as an ?Aide to Students with Disabilities? by the Bethlehem Central School District...
Reassignment to a different work shift
Posted on September 26, 2009Reassignment to a different work shiftMatter of Kattaya (Commissioner of Labor), 32 AD3d 1124Hany Kattaya was a security officer at a museum. He worked both the day shift and the night shift, preferring the night shift because he received a pay differential and free parking while working the night shift...
Termination recommended after employee is found to be a direct threat to others
Posted on September 25, 2009Termination recommended after employee is found to be a direct threat to othersNew York City Fire Department v Krasner, OATH Index #2967/09Glenn Krasner, a fire protection specialist, was highly regarded for his job-related knowledge and skills.Krasner, however, was found to pose a direct threat to the health and safety of others following a disciplinary hearing and Administrative Law Judge
EEOC files proposed amendments to its ADA regulations and guidelines
Posted on September 25, 2009EEOC files proposed amendments to its ADA regulations and guidelinesSource: Jackson Lewis LLP. Reproduced with permission. Copyright © 2009, Jackson Lewis. Originally published by Jackson Lewis, LLP, at www.jacksonlewis.com. All rights reserved.Proposing sweeping changes to its regulations and interpretative guidance under the Americans with Disabilities Act (ADA), the Equal Employment
Appointing authority?s duty to review disciplinary hearing record made by the designated hearing officer
Posted on September 25, 2009Appointing authority?s duty to review disciplinary hearing record made by the designated hearing officerMatter of McKinney v Bennett, 31 AD3d 860The Appellate Division, Third Department, affirmed the termination of a State Trooper after the Trooper was being found guilty of making unwanted gender advances toward two female coworkers, rejecting his contention that the appointing authority ?blindly
Contracting out for substitute teachers
Posted on September 25, 2009Contracting out for substitute teachers Appeal of Kim E. Woodarek, Comm. Of Education Decision No. 15,422The Commissioner of Education ruled that a school district does not have the authority to enter into a contract with a private party to recruit, interview, select, hire and assign employees to render per diem substitute teaching...
Injuries to Trainees
Posted on September 25, 2009Injuries to TraineesSource: AELE Law Enforcement Legal Center, http://www.aele.org/, Reproduced with permission. Copyright © 2009 AELEBecause a police trainee had signed a liability release to participate in physically demanding training programs, he was not entitled to damages after he was injured while carrying 70-pound cooler containing the lunches of other police recruits...
Suspension without pay may extended if delay in proceeding is caused by the accused
Posted on September 25, 2009Suspension without pay may extended if delay in proceeding is caused by the accusedMatter of Skrypek v Bennett, 31 AD3d 827State Trooper Randall R. Skrypek challenging his suspension without pay pending disciplinary action following an off-duty incident in which he misrepresented to 911 operators and police investigators that he had been assaulted and robbed...
School board member removed after being found guilty of charges of official misconduct
Posted on September 24, 2009School board member removed after being found guilty of charges of official misconductAppeal of Deann Nelson from action of the Board of Education of the City School District of the City of Jamestown regarding her removal as a board member, Commissioner of Education Decision No...
Tape-recorded testimony of a deceased witness may be admitted as evidence in an administrative hearing
Posted on September 24, 2009Tape-recorded testimony of a deceased witness may be admitted as evidence in an administrative hearingNYC Department of Buildings v Stallone Testing Laboratories, Inc., OATH Index #362/10OATH Administrative Law Judge Alessandra F. Zorgniotti allowed the tape-recorded sworn testimony of a deceased witness to be admitted into evidence at an administrative hearing over the objections of Stallone
Employee?s ?hiding? his new address bars his claiming that he was not served with the hearing officer?s decision
Posted on September 24, 2009Employee?s ?hiding? his new address bars his claiming that he was not served with the hearing officer?s decisionBoard of Educ. of the City School Dist. of the City of New York v Grullon, 2009 NY Slip Op 06594, Decided on September 22, 2009, Appellate Division, First DepartmentAlexis Grullon asked the court to vacate or modify the disciplinary hearing officer's decision suspending him from
Out of title work
Posted on September 24, 2009Out of title workLake City Police Club v City of Oswego, 31 AD3d 1159Noting the well-established principle that out-of-title work creates no automatic right to reclassification, the Appellate Division, citing Matter of McGuinness v New York State Off...
Facial coverings ? removal at security checkpoints
Posted on September 24, 2009Facial coverings ? removal at security checkpointsSource: AELE Law Enforcement Legal Center, http://www.aele.org/, Reproduced with permission. Copyright © 2009 AELEThe Maryland Attorney General has written a formal opinion that a deputy sheriff may require individuals entering the courthouse to remove masks, veils, or other face coverings at the security checkpoint, without regard to whether the
News Related to Equal Employment Opportunity
Posted on September 24, 2009News Related to Equal Employment OpportunitySource: iNews © 2009 John D. Sargent - eeoinews@yahoo.com - All Rights ReservedU.S. Supreme CourtPublic Citizen?s most recent Sup Ct Watch list hereSCOTUSblog?s most recent Petitions to Watch here and hereRoss Runkel?s US Sup Ct Employment Law Cases ? Pending & decided hereOctober Term 2009 - Selected Cases Pending CertiorariAdam v...
Unemployment insurance benefits to continue after GML 207-c benefits terminate
Posted on September 24, 2009Unemployment insurance benefits to continue after GML 207-c benefits terminate Burrows v Commissioner of Labor, 31 AD3d 1094The fact that a City of Newburgh police officer injured on the job is determined to be ineligible to receive benefits pursuant to Section 207-c of the General Municipal Law because he or she is living at a location that is a greater distance outside of the City than is
Termination during the probationary period
Posted on September 24, 2009Termination during the probationary period Matter of Sztabnik v City of New York, 31 AD3d 456 The Appellate Division, Second Department affirmed the termination of Donald Sztabnik as Chief Administrative Superintendent. Sztabnik had been reinstated to his prior title of Administrative Superintendent prior to the end of his probationary period...
County enjoined from surveying employees concerning their continuing to be represented by their current employee organization
Posted on September 23, 2009County enjoined from surveying employees concerning their continuing to be represented by their current employee organizationMatter of New York State Pub. Empl. Relations Bd. v County of Monroe, 2009 NY Slip Op 51908(U), Decided on August 28, 2009, Supreme Court, Albany County, Judge Henry F...
Terminating an individual while he or she is serving a disciplinary probationary period
Posted on September 23, 2009Terminating an individual while he or she is serving a disciplinary probationary periodCialdella v NYC Community School Dist. 21, App. Div. 252 A.D.2d 582Sometimes disciplinary charges are resolved when the parties agree to a settlement providing for a ?disciplinary probationary period...
Employee?s status critical element in determining General Municipal Law Section 207-a and 207-c benefits
Posted on September 23, 2009Employee?s status critical element in determining General Municipal Law Section 207-a and 207-c benefitsBarnes v PERB, NYS Supreme Court, [Not officially reported]Upon separation or retirement, the value of accrued vacation and other leave credits to be paid to an individual depends on his employment status...
Indemnifying personnel
Posted on September 23, 2009Indemnifying personnelColello v Town of Orangetown, Appellate Division, 251 A.D.2d 404Section 18 of the Public Officers Law allows a municipality to ?defend or indemnify and save harmless? its officers and employees held liable for any federal or state judgment against them in connection with an act or omission that occurred while the individual was acting within the scope of his or her public
Electing to appeal a Section 75 disciplinary action to Civil Service Commission bars court review of disciplinary action
Posted on September 23, 2009Electing to appeal a Section 75 disciplinary action to Civil Service Commission bars court review of disciplinary actionTurner v NYC Transit Authority, Appellate Division, 252 A.D.2d 558Section 76 of the Civil Service Law offers an individual found guilty of disciplinary charges pursuant to Section 75 alternative appeal options...
Substitute teacher ineligible for unemployment insurance based on assurance of reemployment
Posted on September 23, 2009Substitute teacher ineligible for unemployment insurance based on assurance of reemploymentHammond v Commissioner of Labor, App. Div., 252 A.D.2d 638The Unemployment Insurance Appeals Board ruled that Sherry Hammond, an ?occasional per diem substitute teacher,? was ineligible to receive unemployment insurance benefits because she had a reasonable assurance of continued employment...
Disciplinary arbitration
Posted on September 23, 2009Disciplinary arbitrationSuffolk County v Gillin, NYS Supreme Court, [Not officially reported], affd. 264 A.D.2d 842The collective bargaining agreement between the Suffolk County and the Suffolk County Detectives Association provided that in the event the Suffolk County Police Department [SCPD] proposes to terminate a detective brought up on disciplinary charges, the detective may elect a
Arbitrator?s award will be confirmed even if based on an error of law or fact
Posted on September 23, 2009Arbitrator?s award will be confirmed even if based on an error of law or factHempstead UFSD v Hempstead Classroom TA, App. Div., 251 A.D.2d 502An arbitrator concluded that the Hempstead Union Free School District violated the collective bargaining agreement when it terminated a probationary teacher, William Gray...
Defending and indemnifying public officers and employees named as defendants in a lawsuit
Posted on September 23, 2009Defending and indemnifying public officers and employees named as defendants in a lawsuitDerespiris v NYC Transit Auth., App. Div., 251 A.D.2d 503Louis Derespiris wanted the New York City Transit Authority to pay for his legal fees in connection with litigation brought against him in State Supreme Court [Cellini v Derespiris*]in accordance with the provisions of Section 18 of the Public Officers
Court declines to apply the doctrine of primary jurisdiction in a challenge to the layoff of a teacher
Posted on September 22, 2009Court declines to apply the doctrine of primary jurisdiction in a challenge to the layoff of a teacherMatter of Moraitis v Board of Educ. Deer Park Union Free School Dist., 2009 NY Slip Op 51954(U), Decided on August 31, 2009, Supreme Court, Suffolk County, Judge William B...
Good cause must be shown to annul decisions made at a public meeting held in technical violation of Open Meetings Law notice requirements
Posted on September 22, 2009Good cause must be shown to annul decisions made at a public meeting held in technical violation of Open Meetings Law notice requirementsMatter of Wilson v Board of Educ. Harborfields Cent. School Dist., 2009 NY Slip Op 06561, Decided on September 15, 2009, Appellate Division, Second DepartmentAt its June 24, 2007 meeting the Board of Education of the Harborfields Central School District voted not to extend Janet C...
Involuntary disability retirement
Posted on September 22, 2009Involuntary disability retirementRockland Co. PBA v Collins, USDC SDNY, 97CIV7827Burns v Collins, NYS Supreme Court, 258 A.D.2d 692Anyone familiar with police and fire disability issues in New York State is aware that the finances of many municipal governments are strained by the obligation to pay disability benefits to injured fire and police officers while at the same time maintaining public safety services with able-bodied personnel...
Jurisdictional classification
Posted on September 22, 2009Jurisdictional classificationGrosh v City of Troy, 246 A.D.2d 235The failure to properly process a request to jurisdictionally classify an otherwise classified service position in the exempt, noncompetitive or labor class means that the position continues to be a position in the competitive class...
Investigations and the Taylor law
Posted on September 22, 2009Investigations and the Taylor lawCity of New York v DeCosta, 95 NY2d 2731. Is New York City?s Department of Investigation?s investigatory procedures restricted by a labor contract between the City and the Uniformed Fire Officers Association? and2. Does a determination of the Board of Collective Bargaining of the City of New York that this dispute is a subject for arbitration between the parties improperly impinges on public policy?The Court of Appeals concluded that public policy bars enforcement of a provision in a collective bargaining agreement that would limit the power of the New York City?s Department of Investigation from interrogating city employees in a criminal investigationThe issue arose when the Department wanted to question a number of fire officers in connection with its investigation of a false alarm that was allegedly to be used for a false claim of a line of duty injury for a fraudulent pension claim...
Governor has the power to appoint an individual to fill the vacancy in office of Lieutenant-Governor
Posted on September 22, 2009Governor has the power to appoint an individual to fill the vacancy in office of Lieutenant-Governor Skelos v Paterson, 2009 NY Slip Op 06585, Decided on September 22, 2009, Court of AppealsThe issue before the Court of Appeals: Does the Governor of the State of New York have the authority to fill a vacancy in the office of Lieutenant-Governor by appointment...
Fraternization with subordinates
Posted on September 22, 2009Fraternization with subordinatesWorden v Commissioner of Labor, App. Div., 252 A.D.2d 711Craig W. Warden had been discharged from his position because he had violated the employer?s policy prohibiting fraternization by employees with their subordinates...
School district not required to provide for defense, nor provide for indemnification, in lawsuit it brought against former school board member
Posted on September 21, 2009School district not required to provide for defense, nor provide for indemnification, in lawsuit it brought against former school board memberMatter of Barkan v Roslyn Union Free School Dist., 2009 NY Slip Op 06541, decided on September 15, 2009, Appellate Division, Second DepartmentMichael F...
Same offense, different penalties
Posted on September 21, 2009Same offense, different penaltiesWagner v Kerik, 298 A.D.2d 322Jones v Kerik, 298 A.D.2d 308Two different employees serving in the same agency are charged and found guilty of the same type of misconduct but the appointing authority imposes different penalties on each...
Manifest error voids arbitration
Posted on September 21, 2009Manifest error voids arbitrationHalligan v. Piper Jaffray Inc., CA2, 148 F.3d 197It was considered ?black letter law? that a court would not vacate an arbitrator?s award for errors of law or fact committed by the arbitrator. In Halligan, however, the court did just that based on its finding ?manifest disregard? of the law by the arbitrator...
May an individual resign from his or her position by e-mail?
Posted on September 21, 2009May an individual resign from his or her position by e-mail?Appeal of Joanne Boisvert-Fraser from action of the Board of Education of the City School District of the City of Mechanicville and its District Clerk regarding resignation, Decisions of the Commissioner of Education 15,983Although the Commissioner dismissed the appeal submitted by Joanne Boisvert-Fraser as moot and did not comment on its merits, the appeal raises an interesting issue ? is a resignation submitted by a public officer or employee electronically by e-mail or as a ?text message? effective?The general rule in the public service is that a resignation must be in writing and takes effect on the date indicated or thirty days after delivery, whichever first occurs...
Longevity pay and retirement
Posted on September 21, 2009Longevity pay and retirementTooley v McCall, Appellate Division, 252 A.D.2d 794Lowell J. Tooley retired from the Village of Scarsdale after forty years of service. In the course of the three years preceding his retirement the Village paid Tooley about $80,000 under an ?enhanced compensation plan? [ECP] in addition to his regular salary...
Proof of mandatory membership required to effect a "tier" change
Posted on September 18, 2009Proof of mandatory membership required to effect a "tier" changeMatter of Giordano v New York State Teachers' Retirement Sys., 2009 NY Slip Op 51910(U), Decided on September 2, 2009, Supreme Court, Albany County, Judge Harold F. Zwack [Not included in the official reported]Matthew Giordano filed a petition pursuant to CPLR Article 78 in an effort to have a vacate the New York State Teachers? Retirement System?s decision not to change his ?tier status with in the retirement system? from Tier II to Tier I...
News Related to Equal Employment Opportunity
Posted on September 18, 2009News Related to Equal Employment OpportunitySource: iNews © 2009 John D. Sargent - eeoinews@yahoo.com - All Rights ReservedUnited State Supreme CourtPublic Citizen?s most recent Sup Ct Watch list click hereSCOTUSblog?s most recent Petitions to Watch click hereRoss Runkel?s US Sup Ct Employment Law Cases ? Pending & decided click hereOctober Term 2009 - Selected Cases Pending CertiorariAdam v...
Processing PERB appeals
Posted on September 18, 2009Processing PERB appealsJardim v PERB, 265 A.D.2d 329In this action the Appellate Division held that LeRoy Jardim?s petition seeking review of the determination of the New York State Public Employment Relations Board was properly dismissed he failed to exhaust his administrative remedies, citing Watergate II Apts...
Employee's promotion as an asset in divorce proceedings
Posted on September 18, 2009Employee's promotion as an asset in divorce proceedingsBystricky v Bystricky, Supreme Court, Nassau County, 177 Misc 2d 914Although this case deals with the marital assets of a police officer involved in a divorce, the decision suggests the court?s general approach to evaluating benefits resulting from promotions in the public service in divorce proceedings...
Unit member has limited rights in processing his or her grievance to arbitration
Posted on September 18, 2009Unit member has limited rights in processing his or her grievance to arbitrationRine v Higgins, 244 A.D.2d 963After his union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 264, demanded arbitration challenging Rine?s termination from his position as an Erie deputy sheriff, Rine asked a State Supreme Court justice to issue a declaratory judgment establishing his right to choose his own attorney to represent him in a grievance brought by the Union arising out of his discharge...
Status of employees may lead to tenure by estoppel
Posted on September 18, 2009Status of employees may lead to tenure by estoppelWalters v Amityville UFSD, Appellate Division, 251 A.D.2d 590The Walters decision demonstrates the need for employers to clearly identify in its personnel records the professional obligation of each employee (e...
Refusing to allow an employee to
Posted on September 17, 2009Refusing to allow an employee to withdraw a letter of resignationMatter of Pishotti v New York State Thruway Authority, 38 A.D.3d 1122James Pishotti, a construction equipment operator, had been placed on disciplinary probation by the Thruway Authority for violations of its policy against violence in the workplace...
Attorney-client privilege
Posted on September 17, 2009Attorney-client privilegeRe Lindsey Grand Jury Testimony, CADC, 148 F.3d 1100The attorney-client privilege has been frequently relied upon in an effort to bar the disclosure of conversations between an individual and his or her attorney. The decision by the U...
Breaching test security
Posted on September 17, 2009Breaching test securitySettlement of disciplinary chargesThe School District filed disciplinary charges against a fifth grade teacher alleging that she had allowed students to correct their incorrect answers in a district-wide mathematics proficiency test, thereby compromising the test?s validity...
Employee terminated following positive random test for illegal drugs
Posted on September 17, 2009Employee terminated following positive random test for illegal drugsMatter of Randall Rice v Thomas Belfiore, 15 Misc.3d 1105A disciplinary action was instituted after Randall Rice, a police officer with the County?s Department of Public Safety [DPS], tested positive for marijuana after a random drug test...
Financing government activities - is it a fee or a tax? -- The duck rule
Posted on September 17, 2009Financing government activities - is it a fee or a tax? -- The duck ruleSource: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2009, All rights reserved http://lawprofessors.typepad.com/adminlaw/In these times of financial difficulties administrators and legislators frequently attempt to devise alternative ways to increase revenue to support govenment activites...
The doctrine of primary jurisdiction applied in case where an administrative remedy is available
Posted on September 16, 2009The doctrine of primary jurisdiction applied in case where an administrative remedy is availableAppeal of Denise M. Ferencik from action of the Board of Education of the Amityville Union Free School District regarding preferred eligibility rights, Decisions of the Commissioner of Education, Decision No...
Employee terminated following positive random test for illegal drugs
Posted on September 16, 2009Employee terminated following positive random test for illegal drugsMatter of Randall Rice v Thomas Belfiore, 15 Misc.3d 1105A disciplinary action was instituted after Randall Rice, a police officer with the County?s Department of Public Safety [DPS], tested positive for marijuana after a random drug test...
Employees assume the risks inherent in performing the duties of their position
Posted on September 16, 2009Employees assume the risks inherent in performing the duties of their positionWitkowski v Milwaukee County, USCA 7th Circuit, 480. F.3d 511Laron Ball was on trial murder. Ball had threatened mayhem if convicted, so the court took extra precautions. When the jury found Ball guilty, Ball seized a gun from deputy sheriff Michael J...
Demand for premium pay where union cannot negotiate a disciplinary procedure a mandatory subject of collective bargaining
Posted on September 15, 2009Demand for premium pay where union cannot negotiate a disciplinary procedure a mandatory subject of collective bargainingMatter of City of New York v New York State Public Employment Relations Board, 2008 NY Slip Op 52693(U), Decided on January 18, 2008, Supreme Court, Albany County, Judge Henry F...
Discrimination against minority educators
Posted on September 15, 2009Discrimination against minority educatorsDecisions of the Commissioner of Education #13994Fanny Ogbununga, claiming that the Union Free School District of the Tarrytowns had a policy of not appointing minorities to professional positions, appealed to the Commissioner of Education because she had applied, but was not selected, for a social sciences teacher vacancy...
Definition of a police officer
Posted on September 15, 2009Definition of a police officerRossi v Metropolitan Trans. Auth., App Div, 249 A.D.2d 307After the New York Metropolitan Transportation Authority [MTA] and the Long Island Rail Road [LIRR] initiated a ?no fare - police ride program,? a dispute arose over the definition of a police officer...
State workforce reduction plans
Posted on September 14, 2009State workforce reduction plans announcedSource: New York State Division of the BudgetOn September 14, 2009 the Division of the Budget announced that its preliminary review of New York State agency Workforce Reduction Plans (WRPs) has been completed.These plans are projected to achieve $260...
Vague and conclusory allegations results in dismissal of Article 78 petition
Posted on September 14, 2009Vague and conclusory allegations results in dismissal of Article 78 petitionWharry v Lindenhurst Union Free School District, 2009 NY Slip Op 06424, Decided on September 8, 2009, Appellate Division, Second DepartmentMarissa Wharry sued the Lindenhurst Union Free School District after it declined to renew her annual contract as varsity gymnastics coach...
City of New York not responsible for acts or omissions by employees of the New York City Board of Education
Posted on September 14, 2009City of New York not responsible for acts or omissions by employees of the New York City Board of EducationMcClain v City of New York, 2009 NY Slip Op 06409, Decided on September 8, 2009, Appellate Division, Second DepartmentIn an action to recover damages for personal injuries, Naquan McClain and other plaintiffs sued the City of New York for alleged negligent and intentional acts and omissions by certain employees of the New York City Board of Education...
Conviction of a crime and employment pursuant a ?Certificate of Relief from Disabilities? or a ?Certificate of Good Conduct?
Posted on September 14, 2009Conviction of a crime and employment pursuant a ?Certificate of Relief from Disabilities? or a ?Certificate of Good Conduct?Camulaire v Board of Education, NYS Supreme Court, [Not officially reported]In May 1996 Arnold Camulaire applied to the New York City Board of Education for a teaching license and listed a criminal conviction on his application form...
Name clearing hearing to rebut derogatory information in a personnel file
Posted on September 14, 2009Name clearing hearing to rebut derogatory information in a personnel fileSciolino v. City of Newport News, U.S. 4th Circuit Court of Appeals, 480 F.3d 642The lesson in Sciolino is that if an individual believes that there is derogatory information in his or her personnel file and that there is a danger of such derogatory information being seen by a prospective employer or the public, such an allegation must be set out in the individual?s complaint...
Appeal claims ?procedural flaws? in conducting a disciplinary hearing
Posted on September 11, 2009Appeal claims ?procedural flaws? in conducting a disciplinary hearingMatter of Whyte v Horn, 38 A.D.3d 362Sharon Whyte was terminated from her employment as a correction officer after being found guilty of disciplinary charges that had been filed against her...
Accelerated research tool make research easier
Posted on September 11, 2009Accelerated research tool make research easierYou may now perform research of the material published by NYPPL more quickly.To search this blog using a key word or phrase, please click on: http://www.feedblitz.com/f/?Search=594476For example, set out below are the first ten ?hits? of over 200 postings for the phrase Summary termination...
Early retirement agreements
Posted on September 10, 2009Early retirement agreementsLilker v Village of Freeport, Supreme Court Nassau Co., [Not officially reported]The Village of Freeport Trustees decided that an unprecedented budget deficit required it to reorganize the village?s police force. The plan called for the establishment of the position of ?police chief? and the elimination of the title ?inspector...
Which blawgs should be included in the ABA's annual list of the 100 best legal blogs
Posted on September 10, 2009An e-mail received from the American Bar Association asks "Which blawgs should we include in our annual list of the 100 best legal blogs in December? Readers wishing to nominate a legal blog for inclusion in the ABA's list may do so at: http://www...
School district?s new food service contractor not necessarily required to continue existing staff and to match existing benefits
Posted on September 09, 2009School district?s new food service contractor not necessarily required to continue existing staff and to match existing benefitsAppeal of Whitsons School Nutrition Corporation from action of the Board of Education of the William Floyd Union Free School District, Aramark Corporation and Aramark Educational Services, LLC regarding the awarding of a food service contract, Decisions of the Commissioner of Education, Decision No...
Federal Honest Leadership and Open Government Act of 2007 ruled Constitutional
Posted on September 09, 2009Federal Honest Leadership and Open Government Act of 2007 ruled ConstitutionalNational Association of Manufacturers v Jeffrey Allen Taylor, et alUnited States Court of Appeals, for the District of Columbia Circuit, Decided September 8, 2009, No. 08-5085The Circuit Court of Appeals, DC Circuit, upheld the constitutionality of the Honest Leadership and Open Government Act of 2007, rejecting a challenge alleging that 2 U...
Use of hearsay evidence in administrative hearings
Posted on September 09, 2009Use of hearsay evidence in administrative hearingsHoffman v Village of Sidney, 252 A.D.2d 844Edward F. Hoffman, Jr., a Village of Sidney police officer, was served with disciplinary charges pursuant to Section 75 of the Civil Service Law alleging:1. While off-duty he threatened one or more persons;2...
Medical evidence supports finding that applicant?s disability was not job related
Posted on September 08, 2009Medical evidence supports finding that applicant?s disability was not job relatedMatter of Locke v Kelly, 38 A.D.3d 363Richard Locke?s application for a service-related accidental disability retirement allowance was rejected.The Appellate Division sustained the Police Commissioner?s rejection of Locke?s disability retirement application, ruling that the Medical Board's finding that his disability was caused by a degenerative hip condition rather than his line-of-duty knee injuries was supported by credible evidence...
Attorney General Cuomo releases New York State Police Report; Governor Paterson responds
Posted on September 08, 2009Attorney General Cuomo releases New York State Police Report; Governor Paterson respondsSource: Press release, Office of the GovernorGovernor David A. Paterson and Attorney General Andrew M. Cuomo have released the Attorney General?s State Police report, along with a letter from the Governor responding to the Attorney General's findings and recommendations...
Break in service required of a member of the State Teachers? Retirement System to effect retirement
Posted on September 08, 2009Break in service required of a member of the State Teachers? Retirement System to effect retirementMatter of Boyce v New York State Teachers' Retirement System, 2009 NY Slip Op 29356, decided on July 21, 2009, Supreme Court, Albany County, Judge Henry F...
Reinstatement to the eligible list
Posted on September 04, 2009Reinstatement to the eligible listMatter of Chiang v County of Nassau, 38 A.D.3d 772, Motion to appeal denied, 9 N.Y.3d 804The Nassau County Civil Service Commission disqualified Catherine Chiang for appointment to the position of Nassau County Police Officer on medical grounds...
OPM Issues Proposed Military Family Leave Regulations Covering Federal Employees
Posted on September 04, 2009OPM Issues Proposed Military Family Leave Regulations Covering Federal EmployeesSource: The FMLA Blog -http://federalfmla.typepad.com/fmla_blog/Copyright © 2009. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation...
Negotiating parity salary provisions
Posted on September 03, 2009Negotiating parity salary provisionsMatter of Plainedge Federation of Teachers, 31 PERB 3015The Plainedge Federation of Teachers submitted a bargaining demand that provided that the Plainedge Union Free School District would pay its teaching assistants a percentage salary increase equal to the median percentage increase paid annually to teaching assistants in other school districts in Nassau County...
2d Circuit Court of Appeals holds employment-related grievances may relate to matters of public concern
Posted on September 03, 20092d Circuit Court of Appeals holds employment-related grievances may relate to matters of public concernSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq...
County to review step/grade placements of certain employees promoted to determine if the CBA provisions were correctly applied
Posted on September 02, 2009County to review step/grade placements of certain employees promoted to determine if the CBA provisions were correctly appliedCivil Serv. Empl. Assn., Inc. v County of Nassau, 2009 NY Slip Op 51819(U), Decided on July 27, 2009, Supreme Court, Nassau County, Judge F...
Out-of-title work
Posted on September 02, 2009Out-of-title workMacrae v Dolce, 249 A.D.2d 476City of White Plains firefighters brought an Article 78 action contending that the City was requiring them to regularly perform out-of-title work by serving as fire lieutenants in violation of Section 61...
Employee cannot be found guilty of misconduct not alleged in the disciplinary charges filed against the employee
Posted on September 01, 2009Employee cannot be found guilty of misconduct not alleged in the disciplinary charges filed against the employeeMayo v Personnel Review Bd. of the Health & Hosps. Corp, 2009 NY Slip Op 06224, Decided on August 18, 2009, Appellate Division, First DepartmentKeith Mayo was employed by the Health and Hospitals Corporation [HHC] as a supervisor of stock workers...
Disciplinary penalty reduced by court
Posted on September 01, 2009Disciplinary penalty reduced by courtCatena v Village of Southampton, 289 A.D.2d 487The Village of Southampton dismissed Jeffrey Catena from his position as maintenance mechanic. Although Catena admitted his guilt, he appealed, contending that the penalty of dismissal was too harsh under the circumstances...
Recommended penalty for excessive lateness: suspensions without pay
Posted on August 31, 2009Recommended penalty for excessive lateness: suspensions without payTaxi and Limousine Commission v Jones, OATH Index #2829/09Taxi and Limousine Commission v Kupferberg, OATH Index #2828/09In two separate cases, OATH Administrative Law Judge John Spooner found that the Taxi and Limousine Commission proved that two clerical associates were excessively late...
Determining line-of-duty disability
Posted on August 31, 2009Determining line-of-duty disabilityErtner v Chenango County, 280 A.D.2d 851In considering the standard to apply in determining line-of-duty disability for the purpose of demonstrating eligibility for Section 207-c benefits, in the Ertner case, the Appellate Division, Third Department said that:While it would be virtually impossible to enumerate each and every instance in which an employee would be entitled to General Municipal Law Section 207-c benefits as opposed to workers' compensation benefits (and such determinations must, of necessity, be made on an ad hoc basis), two rather classic examples come to mind: a police officer injured while pursuing a fleeing felon and a correction officer injured while attempting to quell a prison riot...
States and political subdivisions of states are not employers within the meaning of the National Labor Relations Act
Posted on August 28, 2009States and political subdivisions of states are not employers within the meaning of the National Labor Relations ActFord v D.C. 37 Union Local 1549, CA2d Circuit, Docket No. 08-2317-cvRoxanne Ford appealed a judgment by the United States District Court for the Southern District of New dismissing her complaint alleging that DC-37 breached the duty of fair representation...
Disciplinary suspension without pay
Posted on August 28, 2009Disciplinary suspension without payWachtmeiser v Andrus, 279 A.D.2d 822Clearly an employee against whom disciplinary charges have been filed pursuant to Section 75 of the Civil Service Law may be suspended without for up to thirty days pending a resolutions of the disciplinary action...
Social Networking, Blogging And Employment Law Article
Posted on August 28, 2009Social Networking, Blogging And Employment Law ArticleSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...
Proof of service critical in determining if an appeal from an administrative decision has been timely filed
Posted on August 27, 2009Proof of service critical in determining if an appeal from an administrative decision has been timely filedMatter of Maye v New York City Dept. of Educ., 2009 NY Slip Op 31815(U), August 11, 2009, Supreme Court, New York County, Docket Number: 112869/08, Judge: Nicholas FigueroaCatherine Maye challenged an arbitration award terminating her employment as a New York City public school teacher...
Arbitration awards must be consistent with public policy
Posted on August 27, 2009Arbitration awards must be consistent with public policyMatter of Lawrence Teachers Assn. v Lawrence Pub. Schools 38 A.D.3d 779, Motion for leave to appeal denied, , 9 N.Y.3d 806The Lawrence Teachers Association filed a CPLR Article 75 action seeking to confirm an arbitration award that directed the Lawrence Public Schools to designate members of the Association?s bargaining unit to perform special education services outside of the geographical boundaries of the school district in accordance with the terms of a ?stipulation? agreed to by the parties...
Legislation proposed to require private employers in New York City to provide their employees with paid sick leave
Posted on August 27, 2009Legislation proposed to require private employers in New York City to provide their employees with paid sick leaveSource: CCH Workday/Workday WorldPositioning New York City to become the fourth municipality in the country to pass paid sick leave legislation, Council Member Gale A...
A ?new penalty? to be imposed after court finds no substantial evidence to support one of two disciplinary charges for which employee was found guilty
Posted on August 26, 2009A ?new penalty? to be imposed after court finds no substantial evidence to support one of two disciplinary charges for which employee was found guiltyMatter of Penderleith v Lakeland Cent. School Dist. of Shrub Oak, N.Y., 2009 NY Slip Op 06250, Decided on August 18, 2009, Appellate Division, Second DepartmentThe Lakeland Central School District of Shrub Oak file charges alleging Penderleith failed to comply with proper protocol during a fire alarm (Charge I) and acting in a manner that was menacing, intimidating, and/or threatening toward the principal or assistant principal (Charge II)...
Disciplinary charges must provide information sufficient to prepare a defense
Posted on August 26, 2009Disciplinary charges must provide information sufficient to prepare a defenseMatter of Capone v Patchogue-Medford Union Free School District, 38 A.D.3d 770Ralph Capone, formerly employed by the Patchogue-Medford Union Free School District as a Custodial Worker I, challenged his termination after he was found guilty of charges filed against him pursuant to §75 of the Civil Service Law...
Employee may proceed with claim based on unauthorized access to e-mail
Posted on August 26, 2009Employee may proceed with claim based on unauthorized access to e-mailSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...
Work-related stress experienced by employees working at a correction facility ?normal?
Posted on August 25, 2009Work-related stress experienced by employees working at a correction facility ?normal?Matter of D'Errico v New York City Dept. of Corrections, 2009 NY Slip Op 06262, decided on August 20, 2009, Appellate Division, Third DepartmentJohn D'Errico contended that he suffered with severe major depressive disorder with psychotic features, post-traumatic stress disorder and panic disorder with agoraphobia that he claimed resulted from his exposure to violent incidents in the course of his employment by the Department...
Employer rep at unemployment hearing was not practicing law
Posted on August 25, 2009Employer rep at unemployment hearing was not practicing lawSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...
Resolving disputes pursuant to the arbitration clause set out in the the City Manger's employment contract held not against public policy
Posted on August 24, 2009Resolving disputes pursuant to the arbitration clause set out in the City Manger's employment contract held not against public policyMatter of City of Newburgh v McGrane, 2009 NY Slip Op 51463(U), Supreme Court, Orange County, Judge Robert J. Onofry, [Not selected for publication in the Official Reports]In 2006 the City of Newburgh?s then City Council adopted a resolution authorizing the Mayor to enter into an Employment Agreement Jean-Ann McGrane as its City Manager...
Commissioner of Education no longer has jurisdiction to determine the merits of disciplinary charges served on a tenured teacher
Posted on August 24, 2009Commissioner of Education no longer has jurisdiction to determine the merits of disciplinary charges served on a tenured teacherAppeal of Nicola A. DeMarco from action of the New York City Department of Education regarding disciplinary charges, Decisions of the Commissioner of Education, No...
Delay of and reinstatement to a different job did not violate the FMLA
Posted on August 24, 2009Delay of and reinstatement to a different job did not violate the FMLASource: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/Copyright © 2009. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation...
Filling a vacancy in the office of Lieutenant Governor
Posted on August 21, 2009Filling a vacancy in the office of Lieutenant GovernorSkelos v Paterson, 2009 NY Slip Op 06265, Decided on August 20, 2009, Appellate Division, Second Department May the Governor, acting entirely on his own, select and appoint an otherwise qualified individual to fill a vacancy in the office of the Lieutenant-Governor? The Appellate Division?s answer: no, he may not...
Misusing one?s official position gain a personal advantage
Posted on August 21, 2009Misusing one?s official position to gain a personal advantageNew York City Department of Corrections v Rodriguez, OATH Index #792/09The Administrate Law Judge found that Kathleen Rodriguez, a New York City correction officer, guilty of using her official position and title in an effort to intercede in a criminal prosecution on behalf of a personal friend and that Rodriguez attempted to use her position to gain access to unauthorized access to confidential court files...
Stay of arbitration
Posted on August 21, 2009Stay of arbitrationCity of White Plains v Professional Firefighters Association, Local 274 I.A.F.F., 298 A.D.2d 456From time to time a party to a collective bargaining agreement [CBA] will attempt to prevent a grievance from being submitted to an arbitrator by seeking a stay of arbitration pursuant to Article 75 of the Civil Practice Law and Rules...
Employee charging employer did not appoint him because of age required to show that the employer?s reasons given for rejecting him were pretextual
Posted on August 20, 2009Employee charging employer did not appoint him because of age required to show that the employer?s reasons given for rejecting him were pretextualSaia v Suffolk County Community College, 2009 NY Slip Op 05851, Appellate Division, Second DepartmentThe Appellate Division dismissed Robert Saia?s appeal in which he sought to recover damages for alleged discrimination in employment on the basis of age in violation of Executive Law §296, the State?s Human Rights Law...
Termination by operation of law
Posted on August 20, 2009Termination by operation of lawMaldarelli v Doherty, 7 A.D.3d 384In some instances a public officer or employee otherwise entitled to a pretermination hearing before he or she may be dismissed is automatically removed from his or her position by operation of law without being given any "notice and hearing...
Correction officer found not guilty of failing to secure his post
Posted on August 19, 2009Correction officer found not guilty of failing to secure his postNew York City Department of Correction v Long, OATH Index #2464/09OATH Administrative Law Judge Tynia Richard recommended dismissal of a charge that a correction officer failed to secure his post...
Political activity during working hours not protected by the Labor Law
Posted on August 19, 2009Political activity during working hours not protected by the Labor LawMcCue v County of Westchester, 57 A.D.3d 746James McCue sued Westchester County seeking damages on the ground that he had been unlawfully terminated from his employment in violation of Labor Law §201-d...
The Top 100 Employment Law Blogs [as identified by the Delaware Employment Law Blog]
Posted on August 18, 2009The Top 100 Employment Law Blogs [as identified by the Delaware Employment Law Blog]Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...
Constructive dismissal
Posted on August 18, 2009Constructive dismissalEvans v City of New York, 2009 NY Slip Op 05832, Appellate Division, First DepartmentJohn Evans sued the City of New York alleging that [1 he suffered from a mental impairment and the City did not provide him with a reasonable accommodation in violation of the State?s Human Rights Law and [2] he had been ?constructively discharged? from his position...
Commission?s authority to determine applicant?s qualification for appointment not compromised by court order directing it to produce certain evidence
Posted on August 18, 2009Commission?s authority to determine applicant?s qualification for appointment not compromised by court order directing it to produce certain evidenceMatter of McElligott v Nassau County Civ. Serv. Commn., 57 A.D.3d 671The Nassau County Civil Service Commission disqualified Maurice McElligott for appointment as a police officer on the ground that he did not meet the psychological requirements of the position...
Of Special Interest to School District and BOCES Administrators - School Bus Recall
Posted on August 18, 2009Of Special Interest to School District and BOCES AdministratorsSchool Bus Recall Source: National Highway Traffic Safety Administration Office of Defects Investigation (ODI) RecallsReport Date : August 17, 2009 at 09:45 AM NHTSA CAMPAIGN ID Number: 09V328000 Vehicle Make / BLUE BIRD / ALL AMERICAN Model Year(s):2004-2010BLUE BIRD / CONVENTIONAL2004-2008 BLUE BIRD / MICRO BIRD2008-2010BLUE BIRD / VISION Manufacturer: BLUE BIRD BODY COMPANY - Mfr's Report Date: AUG 12, 2009 NHTSA CAMPAIGN ID Number: 09V328000Component: SEATS -- Potential Number of Units Affected: 37095Summary: BLUE BIRD IS RECALLING CERTAIN MODEL YEAR 2004 THROUGH 2010 ALL AMERICAN, VISION, MICRO BIRD, AND CONVENTIONAL SCHOOL BUSES MANUFACTURED BETWEEN JANUARY 30, 2003 AND MAY 7, 2009...
Answering questions during an ?investigatory interview?
Posted on August 17, 2009Answering questions during an ?investigatory interview?New York City Human Resources Administration v Ali, OATH Index #2380/09Mahmoud Sami Ali, a staff analyst employed by the New York City Human ResourcesAdministration, had requested annual leave to attend to family matters outside of the country...
Employee terminated after making a false statement on his employment application
Posted on August 14, 2009Employee terminated after making a false statement on his employment applicationMatter of Wilson v Town of Minerva Town Bd., 2009 NY Slip Op 06214, decided on August 13, 2009, Appellate Division, Third DepartmentThe Town of Minerva appointed Philip Wilson as a maintenance mechanic in 2001...
Suspension for 45 days without pay recommended as the penalty for a correction officer found guilty of leaving an inmate unguarded in a hospital room
Posted on August 13, 2009Suspension for 45 days without pay recommended as the penalty for a correction officer found guilty of leaving an inmate unguarded in a hospital roomDepartment of Correction v Turpin, OATH Index #2070/09OATH Administrative Law Judge John Spooner found New York City correction officer Carlene Turpin guilty of charges that she walked off her post guarding an inmate in hospital room and left her weapon in a bathroom...
Improper Practices within the meaning of the Taylor Law ? decisions by PERB administrative law judges
Posted on August 13, 2009Improper Practices within the meaning of the Taylor Law ? decisions by PERB administrative law judges Source: Summaries of decisions prepared by the Public Employment Relations Board City Of Plattsburgh and Plattsburgh Permanent Firemen's Association, Local 2421, IAFF...
The 30-day suspension without pay limitation set Civil Service Law §75 controls unless the employee is the cause of a delay in the proceeding
Posted on August 12, 2009The 30-day suspension without pay limitation set Civil Service Law §75 controls unless the employee is the cause of a delay in the proceedingMatter of Ruggiero v McGrane, 2009 NY Slip Op 06026, Decided on July 28, 2009, Appellate Division, Second DepartmentJean-Ann McGrane, Poughkeepsie?s City Manager, sustained the finding that that Paul Ruggiero was guilty of certain charges of misconduct...
Termination for disrespectful conduct dual constitutes disqualifying misconduct for the purposes of claiming unemployment insurance benefits
Posted on August 12, 2009Termination for disrespectful conduct dual constitutes disqualifying misconduct for the purposes of claiming unemployment insurance benefitsMatter of Davis v Commissioner of Labor, 2009 NY Slip Op 05922, decided on July 23, 2009, Appellate Division, Third DepartmentDeborah Davis worked as a school district secretary for approximately 2½ years...
Eligibility for ?Jarema Credit" depends on the tenure area of the earlier held tenured employment
Posted on August 11, 2009Eligibility for ?Jarema Credit" depends on the tenure area of the earlier held tenured employmentAppeal of Julia Zalaman from action of the Board of Education of the Katonah-Lewisboro Union Free School District and Superintendent Robert J. Roelle regarding termination of employment, Decisions of the Commissioner of Education, Decision No...
Discriminating against white county managers because of their race ruled unlawful
Posted on August 11, 2009Discriminating against white county managers because of their race ruled unlawfulBryant v Jones, U.S. 11th Circuit Court of Appeals, Docket #06-16591, Decided July 31, 2009In Ricci Et Al. V. DeStefano, USSC, No. 07?1428, decided June 29, 2009, the Supreme Court held that that race-based action taken by a public employer is prohibited by Title VII unless the employer can demonstrate, by strong evidence, that had if it had not taken such action, it would have been liable under the disparate-impact statute...
Executive order seeks to eliminate unnecessary regulatory requirements on businesses and local governments promulgated by Governor Paterson
Posted on August 10, 2009Executive order seeks to eliminate unnecessary regulatory requirements on businesses and local governments promulgated by Governor PatersonSource: Press release issued by the Office of the GovernorGovernor David A. Paterson signed Executive Order No. 7...
Whistleblower?s complaint alleging unlawful retaliation ruled untimely
Posted on August 10, 2009Whistleblower?s complaint alleging unlawful retaliation ruled untimelyCante v New York City Department of Education, U.S. Department of Labor Administrative Review Board Case NO. 08-012Richard Cante filed a complaint with the U.S. Department of Labor?s Occupational Safety and Health Administration (OSHA) alleging that his employer, New York City Department of Education (NYCDOE), demoted him after he complained about his supervisor illegally removing asbestos from a work site...
Dismissed probationary teacher presents evidence sufficient to require judicial review of whether termination was made in bad faith
Posted on August 07, 2009Dismissed probationary teacher presents evidence sufficient to require judicial review of whether termination was made in bad faithLisa Capece f/k/a Lisa Grande v Schultz, 2009 NY Slip Op 51679(U), Decided on August 3, 2009, Supreme Court, Richmond County, Judge Philip G...
Commissioner of Education lacks jurisdiction to consider appeals involving FOIL, the Open Meetings Law and allegations of defamation
Posted on August 06, 2009Commissioner of Education lacks jurisdiction to consider appeals involving FOIL, the Open Meetings Law and allegations of defamationAppeal of P.S. from action of the Board of Education of the City School District of the City of Tonawanda regarding termination of employment, Commissioner of Education Decision No...
Disciplinary suspension without pay results in the voiding of the educator?s required visa
Posted on August 05, 2009Disciplinary suspension without pay results in the voiding of the educator?s required visaMatter of Brown v Board of Educ. of City School Dist. of City of N.Y., 2009 NY Slip Op 31687(U), July 22, 2009, Supreme Court, New York County, Docket Number: 102678/09, Judge: Eileen A...
Is there a new standard to consider when providing public records pursuant to a FOIL request?
Posted on August 05, 2009Is there a new standard to consider when providing public records pursuant to a FOIL request?Matter of Verizon NY, Inc. v Mills, 2007 NY Slip Op 52616(U), Decided on August 10, 2007, Supreme Court, Westchester County, Judge Robert M. DiBella, [Not be published in the Official Reports...
An ?at-will? employee given fair notice and an opportunity to be heard prior to dismissal has received the due process required by the 14th Amendment
Posted on August 04, 2009An ?at-will? employee given fair notice and an opportunity to be heard prior to dismissal has received the due process required by the 14th AmendmentEdward A. Biliski, v Red Clay Consolidated School District, USCA, 3rd Circuit, Docket No. 08-1742 [This decision is noted as "Precedential"]Edward A...
Individualized inquiry is required when making a determination of reasonable accommodation
Posted on August 03, 2009Individualized inquiry is required when making a determination of reasonable accommodationPhillips v City of New York, 2009 NY Slip Op 05990, Decided on July 28, 2009, Appellate Division, First Department [Judge Andrias, (dissenting)]Deborah Phillips was initially appointed by the New York City Department of Homeless Services (DHS) in a noncompetitive civil service title in 1988...
Defective service bars proceeding with an appeal to the Commissioner of Education
Posted on August 03, 2009Defective service bars proceeding with an appeal to the Commissioner of EducationApplication of Lisa A. Kelty for the removal of James Parla as Superintendent of the Island Trees Union Free School District. Commissioner of Education Decision No. 15,946This decision by Carole Huxley, the interim Commissioner of Education, addresses a situation where the failure to correctly resolve a procedural matter proved fatal to processing the appeal submitted by Lisa A...
Charter school required to provide certain staff personnel information in response to a Freedom of Information Law request
Posted on July 31, 2009Charter school required to provide certain staff personnel information in response to a Freedom of Information Law requestMatter of New York State United Teachers v Brighter Choice Charter School, 2009 NY Slip Op 06071, Decided on July 30, 2009, Appellate Division, Third DepartmentThe New York State Federation of Teachers [UFT], a labor union, pursuant to the Freedom of Information Law [FOIL],* asked the Brighter Choice Charter School to provide it with the names, home addresses, titles and salaries of school?s teachers...
Blogs and websites - Transgender Workplace Diversity
Posted on July 31, 2009Blogs and websites - Transgender Workplace DiversityNew York Public Personnel Law posts Law-related sites found on the Internet that it believes could be useful to NYPPL readers in the right sidebar of this Blog.Recently added:Transgender Workplace Diversity...
It's 9:00 AM: Do you know where your employee records are?
Posted on July 31, 2009It's 9:00 AM: Do you know where your employee records are?Source: Posted on the Internet in CCH Workday at http://cch-workday.blogspot.com:80/ . Reproduced with permission. Copyright© CCH 2009, All rights reserved.Earlier this month, Connecticut Governor M...
State Civil Service Commission?s action placing certain competitive class positions in the noncompetitive class annulled
Posted on July 30, 2009State Civil Service Commission?s action placing certain competitive class positions in the noncompetitive class annulledMatter of Brynien v New York State Dept. of Civil Service, 2009 NY Slip Op 31656(U), July 25, 2009 Supreme Court, Albany County, Docket Number: 2144/09, Judge: Joseph C...
Recapturing retirement benefit overpayments
Posted on July 30, 2009Recapturing retirement benefit overpaymentsMatter of Marin v Teachers' Retirement Sys. of the City of New York, 2009 NY Slip Op 51600(U), Decided on July 14, 2009, Supreme Court, New York County, Judge Alice Schlesinger [This decision will not be included in the Official Reports...
Employer?s setting out the nature of acts of misconduct that adversely impact upon the ?efficiency of the service? critical
Posted on July 29, 2009Employer?s setting out the nature of acts of misconduct that adversely impact upon the ?efficiency of the service? criticalDoe v. Department of Justice, #2008-3139, 2009 U.S. App. Lexis 10031 (Fed. Cir.)Source: AELE Law Enforcement Legal Center, http://www...
Governor Paterson's statement upon the selection of Dr. David M. Steiner to serve as Commissioner of Education
Posted on July 28, 2009Governor Paterson's statement upon the selection of Dr. David M. Steiner to serve as Commissioner of EducationSource: Press release ? Office of the Governor?I am pleased that the New York State Board of Regents voted to elect Dr. David M. Steiner as New York State Education Commissioner and President of the University of the State of New York...
Settlement agreements including a clause barring a terminated employee from seeking reemployment ? are they valid?
Posted on July 28, 2009Settlement agreements including a clause barring a terminated employee from seeking reemployment ? are they valid?Source: AELE Law Enforcement Legal Center, http://www.aele.org/, Reproduced with permission. Copyright © 2009 AELEIn an article entitled Validity of Settlement Agreements Containing a ?Will Not Reapply for Employment? Provision, AELE considers the situation wherein an employee is dismissed from his or her position and subsequently alleges that he or she was terminated as the result of unlawful discrimination or unlawful retaliation...
An individual serving an extension of his or her probationary period may be summarily dismissed from the position
Posted on July 28, 2009An individual serving an extension of his or her probationary period may be summarily dismissed from the positionMatter of Ward v Metropolitan Transp. Auth., 2009 NY Slip Op 05973, decided on July 21, 2009, Appellate Division, Second DepartmentThe New York City Transit Authority terminated Steward Ward from his position...
Appeal dismissed because of a procedural misstep
Posted on July 27, 2009Appeal dismissed because of a procedural misstepMatter of Rumman v Duane Reade, 2009 NY Slip Op 05968, decided on July 21, 2009, Appellate Division, Second DepartmentThe Commissioner of the New York State Division of Human Rights adopted the finding of an Administrative Law Judge that Dilruba Rumman failed to demonstrate termination from her employment was a pretext for unlawful discrimination, and dismissed the administrative complaint...
Age discrimination lawsuit dismissed after applicant failed to show employer?s reason for rejection were pretext to mask unlawful discrimination
Posted on July 24, 2009Age discrimination lawsuit dismissed after applicant failed to show employer?s reason for rejection were pretext to mask acts of unlawful discriminationSaia v Suffolk County Community Coll., 2009 NY Slip Op 05851, decided on July 14, 2009, Appellate Division, Second DepartmentRobert Saia sued the Suffolk County Community College in an attempt to obtain damages...
Employee reinstated with back pay following termination pursuant to Section 73 of the Civil Service Law
Posted on July 23, 2009Employee reinstated with back pay following termination pursuant to Section 73 of the Civil Service LawMatter of Hoover v County of Broome, 2009 NY Slip Op 51563(U), Decided on July 21, 2009, Supreme Court, Broome County, Judge Phillip R. Rumsey, [Not to be published in the Official Reports]Keith Hoover filed an Article 78 petition seeking a court order annulling Broome County?s decision to terminate his employment ?pursuant to Civil Service Law §73...
Public Employee and Individual Liability Under FMLA
Posted on July 23, 2009Public Employee and Individual Liability Under FMLASource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...
Appointing the spouse of a board member to a position supervised by the board
Posted on July 23, 2009Appointing the spouse of a board member to a position supervised by the boardOpinions of the State Comptroller, 2009-1The Comptroller was asked for his views regarding whether the spouse of a member of a fire district board of commissioners could serve as an appointed fire district treasurer while the spouse was on the board...
Restraining order bars appointment of Lieutenant Governor
Posted on July 22, 2009Restraining order bars appointment of Lieutenant GovernorSource: Press release from the Governor?s office dated July 21, 2009 Following State Supreme Court Justice William LaMarca?s issuing a restraining order barring the appointment of Richard Ravitch as Lieutenant Governor, the Governor?s Communications Director, Peter E...
Dismissal during an employee?s disciplinary probationary period
Posted on July 22, 2009Dismissal during an employee?s disciplinary probationary periodMatter of Bradford v New York City Dept. of Correction, 2006 NY Slip Op 30569(U), July 11, 2006, Supreme Court, New York County, Docket Number: 111044/05, Judge: Debra A. James [Not selected for official publication]The general rule is that a probationary employee may be dismissed from his or her position at any time after completing the minimum period of probation and prior to the end of the probationary period so long as such dismissal is not for an unlawful reason or purpose...
Filling a vacant city court judge position by appointment
Posted on July 22, 2009Filling a vacant city court judge position by appointmentInformal Opinion of the Attorney General, 2009-02A vacancy in the position of city court judge that is filled by appointment by the mayor with the advice and consent of the city council does not constitute appointment by the council within the meaning of General City Law §3...
Minimum salary set by statute
Posted on July 22, 2009Minimum salary set by statuteInformal Opinion of the Attorney General, 2009-03The statutory minimum salary for the Cayuga County district attorney is the salary established for county court judge by Judiciary Law §221-d even when the judge is serving as acting supreme court justice...
The latest concerning the litigation involving the appointment of a Lieutenant Governor
Posted on July 22, 2009The latest concerning the litigation involving the appointment of a Lieutenant GovernorSource: Office of the Governor's Press Office - For Immediate Release: July 22, 2009STATEMENT FROM THE OFFICE OF GOVERNOR DAVID A. PATERSONThe following statement was issued by Director of Communications Peter E...
A "reasonable relation" between the subject matter of a grievance and the subject matter of the CBA defeats a motion to stay arbitration
Posted on July 21, 2009A "reasonable relation" between the subject matter of a grievance and the subject matter of the collective bargaining agreement defeats a motion to stay arbitrationCounty of Greene v Civil Service Empl. Assn., 2009 NY Slip Op 31468(U), July 7, 2009, Supreme Court, Columbia County, Docket Number: 09-0669, Judge: Joseph C...
Appointing an individual to the vacant Lieutenant Governor position
Posted on July 20, 2009Appointing an individual to the vacant Lieutenant Governor positionA NYPPL commentaryIn recent weeks NYPPL has posted a number of items concerning the current vacancy in the position of Lieutenant Governor -- seehttp://publicpersonnellaw.blogspot.com/2009/07/filling-vacancy-of-lieutenant-governor...
Notice: Posting will resume on
Posted on July 11, 2009Notice: Posting will resume on July 20, 2009.
Queens College of the City University of New York not subject to the City?s Human Right because it is a State entity
Posted on July 10, 2009Queens College of the City University of New York not subject to the City?s Human Right Law because it is a State entityJattan v Queens Coll. of City Univ. of N.Y., 2009 NY Slip Op 05746, decided on July 7, 2009, Appellate Division, Second DepartmentLincoln Jattan, sued Queens College of the City University of New York to recover damages for employment discrimination in violation of the New York State Human Rights Law [Executive Law § 297[9] and the federal Civil Rights Law [42 USC §1983 ]...
Appointment to the Office of Lieutenant Governor
Posted on July 09, 2009Appointment to the Office of Lieutenant GovernorA NYPPL reviewOn July 6, 2009 the Attorney General issued the following statement:?Statement Of Attorney General Andrew Cuomo Regarding Lieutenant Governor Appointment Proposal"The State Constitution explicitly prescribes what occurs when there is a vacancy in the Office of Lieutenant Governor...
Scheduling and arranging for an alternate date for scheduled written civil service tests
Posted on July 08, 2009Scheduling and arranging for an alternate date for scheduled written civil service testsSource: New York State Department Of Civil Service State Personnel Management Manual 1230 Alternate Date For Written Test, July, 2009 updateAs a general rule, the New York State Department of Civil Service will arrange for an alternate written test date for a candidate who can establish one of the following:1...
Injury in the line of duty
Posted on July 08, 2009Injury in the line of dutyMatter of Stymiloski v DiNapoli, 2009 NY Slip Op 05675, Decided on July 2, 2009, Appellate Division, Third DepartmentPaul A. Stymiloski, a police officer employed by the Village of Ossining in Westchester County, was engaged in a routine patrol at 6:00 A...
Filling the vacancy of Lieutenant Governor
Posted on July 08, 2009Filling the vacancy of Lieutenant GovernorArticle III, Section 9, New York State ConstitutionWith all of the discussions on whether it is possible to appoint an individual to the position of Lieutenant Governor, here is one additional possibility:Article III, §9 of the State Constitution provides that ?A majority of each house shall constitute a quorum to do business...
Vacating an arbitration award in situations where the decision exceeds a specific, enumerated limitation on the arbitrator's power
Posted on July 07, 2009Vacating an arbitration award in situations where the decision exceeds a specific, enumerated limitation on the arbitrator's powerMatter of Massena Cent. School Dist. v Massena Confederated School Employees' Assn., NYSUT, AFL-CIO, 2009 NY Slip Op 05674, decided on July 2, 2009, Appellate Division, Third DepartmentEric Fetterly had a dispute with Massena Central School District concerning his (1) Absenteeism, (2) the impact of his workers' compensation leave on his leave credits...
Designating a hearing officer to consider Civil Service Law Section 75 disciplinary charges
Posted on July 06, 2009Designating a hearing officer to consider Civil Service Law Section 75 disciplinary chargesMatter of Perryman v Village of Saranac Lake, 2009 NY Slip Op 05660, Decided on July 2, 2009, Appellate Division, Third DepartmentDonald G. Perryman, the Village of Saranac Lake Chief of Police, was suspended and charged with misconduct and incompetence* pursuant to Civil Service Law §75...
Recap of Supreme Court's labor & employment law decisions
Posted on July 06, 2009Recap of Supreme Court's labor & employment law decisionsSource: Posted on the Internet in CCH Workday at http://cch-workday.blogspot.com:80/ . Reproduced with permission. Copyright© CCH 2009, All rights reserved.Locke v Karass. A union representing Maine's state employees may charge fee-paying nonmembers for the national, or "extra-local" litigation expenses incurred by its parent union, a unanimous Supreme Court ruled, holding that the First Amendment permits such charges (January 21, 2009)...
State Comptroller Thomas P. Dinapoli on processing payment to State Senators for certain monies
Posted on July 03, 2009State Comptroller Thomas P. Dinapoli on processing payment to State Senators for certain moniesSource: Office of the State Comptroller press releaseThe State Comptroller has directed his staff to stop processing any Senate vouchers, including those for the Senators? travel expenses...
?My fiancée got me fired?: The evolution of retaliation claims
Posted on July 03, 2009?My fiancée got me fired?: The evolution of retaliation claims*Source: Posted on the Internet in CCH Workday at http://cch-workday.blogspot.com/ . Reproduced with permission. Copyright© CCH 2009, All rights reserved."With the Sixth Circuit?s recent pro-employer ruling on associational retaliation, and a current split on the matter unfolding among the circuits, this issue may well be headed to the Supreme Court next term?to a Court under Chief Justice Roberts that has been decisively pro-employee in its retaliation decisions...
Employee denied unemployment insurance benefits after resigning despite assurances of continued employment notwithstanding a layoff
Posted on July 02, 2009Employee denied unemployment insurance benefits after resigning despite assurances of continued employment notwithstanding a layoffMatter of Ruggiero v Commissioner of Labor, 2009 NY Slip Op 05236, decided on June 25, 2009, Appellate Division, Third DepartmentElaine Ruggiero learned that resigning from one's position in anticipation of being laid off does not constitute good cause for leaving one's employment when she attempted to overturn the Commissioner of Labor?s determination denying her application for unemployment insurance...
Employer can avoid disparate-impact liability based evidence that its test was valid
Posted on July 01, 2009Employer can avoid disparate-impact liability based evidence that its test was validRicci Et Al. V. DeStefano, USSC, No. 07?1428, decided June 29, 2009 [Together with No. 08?328, Ricci et al. v. DeStefano et al.]The summary of the Ricci v DeStefano decision by the United State Court of Appeals, Second Circuit, was captioned ?The Merit System and public employment ? does it have a future?? [see http://publicpersonnellaw...
School district directed to provide for the defense and indemnification of a teacher being sued in a civil action by another teacher in the district
Posted on June 30, 2009School district directed to provide for the defense and indemnification of a teacher being sued in a civil action by another teacher in the districtMatter of Cotter v Board of Educ. of Garden City Union Free School Dist., 2009 NY Slip Op 05336, decided on June 23, 2009, Appellate Division, Second DepartmentTwo sections in the Education Law concern providing for the defense and indemnification of school officials and employees in the event they are named as defendants in a civil action alleging acts or omissions that occurred in the performance of their official duties...
New York?s Administrative Procedures Act does not require a State agency to issue a declaratory ruling when requested
Posted on June 30, 2009New York?s Administrative Procedures Act does not require a State agency to issue a declaratory ruling when requestedMatter of Humane Society of United States, Inc. v Brennan, 2009 NY Slip Op 05062, Decided on June 18, 2009, Appellate Division, Third DepartmentThe genesis of this lawsuit was the New York State?s Department of Agriculture and Markets' declining to issue a declaration that foie gras* is an adulterated food product within the meaning of Agriculture and Markets Law §200...
Authority of the New York City?s Department of Investigation to compel an individual to comply with an ?investigative subpoena?
Posted on June 29, 2009Authority of the New York City?s Department of Investigation to compel an individual to comply with an ?investigative subpoena?Matter of Parkhouse v Stringer, 2009 NY Slip Op 05205, decided on June 25, 2009, Court of AppealsVirginia Parkhouse's testimony at a public hearing before a New York City agency prompted a complaint by a public official, followed by a subpoena to Parkhouse from the New York City Department of Investigation (DOI)...
Employee privacy when using the employer?s computer
Posted on June 29, 2009Employee privacy when using the employer?s computerSource: CCH ? Workday BlogCCH?s Workday Blog discusses Brahmana v Lembo, N.D. Cal. a case wherein ?one employee, one employer and a federal trial court in California are about to at least decide if monitoring down to the very keystroke violates privacy rights, or at least those rights under the Electronic Communications Privacy Act (ECPA)...
In determining ?final average salary,? including additional payments for working on vacation days would credit the hours in a paid vacation day twice
Posted on June 26, 2009In determining ?final average salary,? including additional payments for working on vacation days would credit the hours in a paid vacation day twiceMatter of Port Authority Police Benevolent Association, Inc. v Anglin, 2009 NY Slip Op 05198, Decided on June 24, 2009, Court of AppealsFor a period of time after the events of September 11, 2001, members of the Port Authority Police Department of New York and New Jersey, were required to work 12-hour shifts and all vacation, regular days off, personal days, and compensatory time off were cancelled...
Employers must record injuries resulting from ?horseplay? at work
Posted on June 26, 2009Employers must record injuries resulting from ?horseplay? at workSource: Jackson Lewis LLP. Reproduced with permission. Copyright © 2009, Jackson Lewis. Originally published by Jackson Lewis, LLP, at http://www.jacksonlewis.com/ . All rights reserved...
Missing examination application deadlines due to serving on active military duty
Posted on June 26, 2009Missing examination application deadlines due to serving on active military dutySource: New York State Department of Civil Service Personnel Services DivisionThe New York Department of Civil Service has published Advisory Memorandum #09-03, Amendment to Section 243-b Military Law, updating its Advisory Memorandum State Personnel Management Manual Advisory Memorandum #05-05...
Supremes vacate ruling that nonsignatories may not enforce arbitration pact
Posted on June 26, 2009Supremes vacate ruling that nonsignatories may not enforce arbitration pactSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...
Individual employed by a private entity and paid with funds provided by the City of New York is not ?paid by the City?
Posted on June 25, 2009Individual employed by a private entity and paid with funds provided by the City of New York is not ?paid by the City?Matter of Ivan v New York City Dept. of Health & Mental Hygiene, 2009 NY Slip Op 05189, decided on June 23, 2009, Decided on June 23, 2009Richard Ivan filed a petition pursuant to Article 78 of the Civil Practice Law and Rules in an effort to compel the New York City Department of Health and Mental Hygiene (DHMH) to take the necessary actions to permit him to obtain the benefits of membership in the New York City Employees' Retirement System (NYCERS)...
Legislation directing the State Comptroller to audit charter schools held unconstitutional
Posted on June 25, 2009Legislation directing the State Comptroller to audit charter schools held unconstitutionalMatter of New York Charter Schools Assn., Inc. v DiNapoli, 2009 NY Slip Op 05204, Decided on June 25, 2009, Court of AppealsThe Court of Appeals, reversing a lower court?s decision, held that the State Legislature violated Article V, §1 of the New York State Constitution when it assigned and directed the State Comptroller to audit charter schools...
State Senate required to provide employee payroll records in response to a Freedom of Information Law request
Posted on June 24, 2009State Senate required to provide employee payroll records in response to a Freedom of Information Law requestMatter of Polokoff-Zakarin v Boggess, 2009 NY Slip Op 03823, decided on May 14, 2009, Appellate Division, Third DepartmentPenny Polokoff-Zakarin filed a Freedom of Information [FOIL] request seeking documents concerning an employee of the State Senate, including the individual?s date of employment and date of termination of employment, the title or position of employment held, the salary paid, and ?complete time and attendance records for [the individual] employee of the State Senate sometime between 1990 and 2007...
Providing police and fire services in times of fiscal stress
Posted on June 24, 2009Providing police and fire services in times of fiscal stressSource: AELE Law Enforcement Legal Center, http://www.aele.org/, Reproduced with permission. Copyright © 2009 AELEDoes a municipality or other political subdivision of a state have a legal duty to maintain a police force or provide firefighting services?The following are excerpts from AELE?s June 2009 issue of its Monthly Law Journal concerning this question and may be of particular relevance in view of the fact that a number of municipalities have been reported to be considering consolidating or abolishing such services because of budget problems...
Teacher's blog caused a disruption resulting in no First Amendment protection
Posted on June 24, 2009Teacher's blog caused a disruption resulting in no First Amendment protectionSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...
The doctrine of the exhaustion of administrative remedy
Posted on June 23, 2009The doctrine of the exhaustion of administrative remedyMatter of Mirenberg v Lynbrook Union Free School Dist. Bd. of Educ., 2009 NY Slip Op 05138, decided on June 16, 2009, Appellate Division, Second DepartmentIn this decision the Appellate Division set out a synopsis of the doctrine of the exhaustion of administrative remedy, noting that:1...
NLRB?s ruling that terminating non-union employees for having picketed its health clinic was lawful overturned
Posted on June 23, 2009NLRB?s ruling that terminating non-union employees for having picketed its health clinic was lawful overturnedCivil Service Employees Association, Local 1000, AFSCME, v National Labor Relations Board, United States Court of Appeals for the Second Circuit, Docket No...
Termination for ?medical incompetence? based on 219 days of absence in a two-year period
Posted on June 23, 2009Termination for ?medical incompetence? based on 219 days of absence in a two-year periodDep't of Correction v. Duclet, OATH Index No. 972/09Administrative Law Judge Faye Lewis found that New York City Correction Officer Ruby Duclet had been absent excessively since 2007, reporting sick 219 days during a two year, one month period...
Under certain circumstances, a municipalilty may modify or discontinue providing health insurance benefits to retirees
Posted on June 22, 2009Under certain circumstances, a municipalilty may modify or discontinue providing health insurance benefits to retirees Matter of Kapell v Incorporated Village of Greenport, 2009 NY Slip Op 05134, decided on June 16, 2009, Appellate Division, Second DepartmentDavid E...
Intermittent absences during approved FMLA
Posted on June 22, 2009Intermittent absences during approved FMLASmith v. CallTech Communications, LLC, No. 2:07-cv-144, 2009 U.S. Dist. LEXIS 48518 (S.D. Ohio June 10, 2009).Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/Copyright © 2009. All rights reserved by Carl C...
Termination of employment recommended for employee found guilty of harassment of fellow employee based on co-worker?s religion
Posted on June 22, 2009Termination of employment recommended for employee found guilty of harassment of fellow employee based on co-worker?s religionDep't of Parks & Recreation v. Mullusky, OATH Index No. 2041/09Administrative Law Judge John Spooner found that park worker Chris Mullusky had harassed and mistreated a Jewish co-worker because of the co-worker?s religion in violation of the City's Equal Employment Opportunity policy...
An appeal to the Commissioner of Education must contain a clear statement showing an entitlement to relief and a demand for such relief
Posted on June 19, 2009An appeal to the Commissioner of Education must contain a clear statement showing an entitlement to relief and a demand for such reliefAppeal of Scott A. Stepien from action of the Board of Education of the Lewiston-Porter Central School District, William H...
Employee suspended for 30-days without pay after being found guilty of failing to comply with a superior?s lawful order
Posted on June 19, 2009Employee suspended for 30-days without pay after being found guilty of failing to comply with a superior?s lawful orderMatter of Nash v Kelly, 2009 NY Slip Op 04723, decided on June 9, 2009, Appellate Division, First DepartmentThe New York City Police Commissioner adopted a Hearing Officer?s determination that found Police Detective Andrew Nash guilty of failing to comply with a lawful order of a superior officer concerning ?licensing information on a computer program used by the Department? and was discourteous to that officer when questioned about such refusal, The penalty imposed: a 30-day suspension without pay...
The State Constitution?s provisions addressing a vacancy in the office of Lieutenant Governor
Posted on June 18, 2009The State Constitution?s provisions addressing a vacancy in the office of Lieutenant GovernorArticle IV, §6 of the State ConstitutionRobert Ward, of the Rockefeller Institute of Government, is reported to have said that ?On its face, the constitution does not rule out two votes,? apparently referring to the claim of a coalition of Republicans and a Democrat advancing the theory that the State constitution provides ?Sen...
Appointing authority?s decision to dismiss a probationary employee found to have violated Department rules sustained
Posted on June 18, 2009Appointing authority?s decision to dismiss a probationary employee found to have violated Department rules sustainedAbreu v Doherty, 2009 NY Slip Op 04732, Decided on June 9, 2009, Appellate Division, First DepartmentThe New York City Department of Sanitation terminated Cristobal Abreu before he had completed his maximum period of probation...
E-verify employment eligibility rule implementation delayed until September 8, 2009
Posted on June 18, 2009E-verify employment eligibility rule implementation delayed until September 8, 2009Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...
Unit member bound by the terms set out in the collective bargaining agreement negotiated by the union
Posted on June 17, 2009Unit member bound by the terms set out in the collective bargaining agreement negotiated by the unionMatter of Raymond v Walsh, 2009 NY Slip Op 04832, Decided on June 12, 2009, Appellate Division, Fourth DepartmentOnondaga County Deputy Sheriff Joseph D...
Appointing authority not required to give its former employee a reason for denying his or her application for reinstatement
Posted on June 17, 2009Appointing authority not required to give its former employee a reason for denying his or her application for reinstatementSalas v New York City Police Dept., 2009 NY Slip Op 04705, Decided on June 9, 2009, Appellate Division, First DepartmentEddie Salas a New York City police officer, resigned from his position on the eve of a departmental hearing scheduled to address allegations that he refused to obey a superior?s order to arrest a sleeping homeless person...
Freezing the payment of salary increments does not freeze the crediting of service for the purpose of determining an employee's increment step
Posted on June 16, 2009Freezing the payment of salary increments does not freeze the crediting of service for the purpose of determining an employee's increment stepMatter of Meegan v Brown, 2009 NY Slip Op 04805, Decided on June 12, 2009, Appellate Division, Fourth DepartmentIn response to a State Comptroller's report concerning a fiscal crisis in the City of Buffalo, the State Legislature passed the Buffalo Fiscal Stability Authority Act on July 3, 2003...
Reemployment of retired State and municipal public employees by the State or a political subdivision of the State
Posted on June 16, 2009Reemployment of retired State and municipal public employees by the State or a political subdivision of the StateNew York State Department of Civil Service - Division of Staffing Services General Information Bulletin No. 09-07Except in cases involving the election to public office and employment in one of the specified position listed in §150, §150 of the Civil Service Law mandates the suspension of a retired public employee's retirement allowance from a public retirement system of this State if he or she returns to public service and receives a "salary or emolument" as a result...
Following the rules about making rules
Posted on June 16, 2009Following the rules about making rulesSource: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2009, All rights reserved http://lawprofessors.typepad.com/adminlaw/Another 'why didn't they just follow their own rules' case, from [Albany Law School Professor] Patty Salkin on her Law of the Land blog: "Failure to Follow Statutory Procedures Invalidates Countywide Zoning Ordinance"...
Inability to demonstrate the possession
Posted on June 15, 2009Inability to demonstrate the possession of a required license permits the summary termination of an incumbentMatter of Cravatta v New York State Dept. of Transp., 2009 NY Slip Op 51164(U), Decided on May 15, 2009, Supreme Court, Erie County, Judge Paula L...
Certain information contained in personnel records may be redacted in complying with a Freedom of Information request
Posted on June 12, 2009Certain information contained in personnel records may be redacted in complying with a Freedom of Information requestMatter of Capital Newspapers Div. of Hearst Corp. v City of Albany, 2009 NY Slip Op 04789, Decided on June 11, 2009, Appellate Division, Third DepartmentThe Albany Times Union [TU] reporter filed two requests under the Freedom of Information Law (Public Officers Law Article 6) with City of Albany seeking documents, including ?gun tags,? related to the alleged use of official Albany Police Department channels to purchase military-style assault rifles for personal, nonofficial use by a number of individual police officers in the 1990s...
Appointing authority, rather than the appointee, responsible for determining if the individual is qualified for the appointment
Posted on June 12, 2009Appointing authority, rather than the appointee, responsible for determining if the individual is qualified for the appointmentAppeal of Dawn And Jay Kippen from action of the Board of Education of the City School District of the City of Rome regarding the employment of a superintendent and application for the removal of Jeffrey P...
Providing for the defense and indemnification of employees being sued as a result of the performance, or failure to perform, their official duties
Posted on June 11, 2009Providing for the defense and indemnification of employees being sued as a result of the performance, or failure to perform, their official dutiesMatter of Matyas v Board of Educ., Chenango Forks Cent. School Dist., 2009 NY Slip Op 04343, Decided on June 4, 2009, Appellate Division, Third DepartmentJohn Matyas was employed as a teacher and coach by the Chenango Forks Central School District...
Local governments save on employee health insurance costs
Posted on June 11, 2009Local governments save on employee health insurance costsOffice of the State Comptroller Press ReleaseLooking to help local governments cut expenses and stretch tax dollars, State Comptroller Thomas P. DiNapoli released a report on June 11, 2009 that provides suggestions to reduce or contain costs, including the costs of employee health care programs provided to employees by local governments...
Arbitrating a layoff unit determination by the appointing authority may be prohibited by statute or as a matter of public policy
Posted on June 10, 2009Arbitrating a layoff unit determination by the appointing authority may be prohibited by statute or as a matter of public policyMatter of Civil Serv. Employees Assn., Inc. v County of Erie, 2009 NY Slip Op 04477, Decided on June 5, 2009, Appellate Division, Fourth DepartmentIn the course of a layoff, CSEA complained that Erie County improperly prohibited County employees laid off from various departments from being recalled or "bumped" into equivalent open positions at the Erie County Medical Center (ECMCC), a public benefit corporation...
Restricting the use of bottled water at state facilities
Posted on June 10, 2009Restricting the use of bottled water at state facilitiesExecutive Order No.7-18,* issued June 3, 2009Governor David A. Paterson has issued an Executive Order, Executive Order 18, directing that ?Within 180 days of the issuance of this Order, every executive agency shall develop and begin implementation of a plan to eliminate the expenditure of State funds for the purchase of bottled water for use at executive agency facilities...
Violation of employer?s rules results in dismissal from the position
Posted on June 10, 2009Violation of employer?s rules results in dismissal from the positionMatter of Ward v Juettner, 2009 NY Slip Op 04432, Decided on June 2, 2009, Appellate Division, Second DepartmentThe Board of Police Commissioners of the Town of Greenburgh conducted a disciplinary hearing and found Town of Greenburgh police officer Erik Ward guilty of violating "three Rules and Regulations" of the Town of Greenburgh Police Department...
Reinstatement following termination pursuant to §73 of the Civil Service Law
Posted on June 09, 2009Reinstatement following termination pursuant to §73 of the Civil Service LawMatter of Hoover v County of Broome, 2009 NY Slip Op 51101(U), Decided on June 2, 2009, Supreme Court, Broome County, Judge Phillip R. Rumsey [This decision will not be published in the Official Reports...
Probationary employee dismissed on the basis of reports indicating a potential violation of the employer?s rules
Posted on June 09, 2009Probationary employee dismissed on the basis of reports indicating a potential violation of the employer?s rulesMatter of Shabazz v New York State Dept. of Correctional Servs., 2009 NY Slip Op 04336, decided on June 4, 2009, Appellate Division, Third DepartmentThe Appellate Division affirmed a judgment of the Supreme dismissing a petition filed by Malik Shabazz seeking a review a determination of Correctional Services? terminating his employment...
Union's negligence about failing to fully inform grievant does not establish breach of duty of fair representation
Posted on June 08, 2009Union's negligence about failing to fully inform grievant does not establish breach of duty of fair representationSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq...
Attorney?s letter to witnesses in a grievance proceeding held an attempt to threaten or influence a witness
Posted on June 08, 2009Attorney?s letter to witnesses in a grievance proceeding held an attempt to threaten or influence a witnessKalyanaram v New York Institute of Technology, 2009 NY Slip Op 04349, decided on June 4, 2009, Appellate Division, First DepartmentAfter investigating complaints from 37 students alleging that Gurumurthy Kalyanaram, a member the New York Institute of Technology?s faculty had engaged in inappropriate conduct during class, the Institute sent a letter to Kalyanaram notifying him that, pursuant to the collective bargaining agreement (CBA) governing faculty employed by New York Institute of Technology, "you are hereby dismissed, effective as of May 21, 2007, for engaging in serious professional misconduct...
Considering criminal conviction in determining qualification of an applicant for employment in the public service
Posted on June 05, 2009Considering criminal conviction in determining qualification of an applicant for employment in the public serviceMatter of El v New York City Dept. of Educ., 2009 NY Slip Op 50883(U), Decided on April 1, 2009, Supreme Court, New York County, Judge Alice Schlesinger [This opinion will not be published in the Official Reports...
The General Municipal Law Section
Posted on June 05, 2009The General Municipal Law Section 207-a/c Case BookA Guide to Disability Leave for those involved inLaw Enforcement and Firefighting in New York State2009 Edition, 1098 pagesThe Section 207-a/c Case Book is an electronic handbook for administrators, union officials and attorneys involved with General Municipal Law Sections 207-a and 207-c benefits available to law enforcement personnel and firefighters suffering job related injuries...
Legislature urged to pass Tier V pension reform legislation
Posted on June 04, 2009Legislature urged to pass Tier V pension reform legislationOffice of the Governor press releaseFollowing his veto of a bill to provided for the temporary extension of Tier II retirement that would provide Tier II benefits to all new police officers and firefighters, matching the benefits of current employees, Governor David A...
Increasing the compensation of the State?s judiciary
Posted on June 03, 2009Increasing the compensation of the State?s judiciaryLarabee v Governor of the State of New York, 2009 NY Slip Op 04296, Decided on June 2, 2009, Appellate Division, First DepartmentTwo Family Court Judges, a Civil Court Judge and a Criminal Court Judge, whose salaries are specified in Judiciary Law § 221-e and § 221-g, initiated litigation naming the Governor, the New York State Senate, the State Assembly, and the State of New York as defendants...
Court vacates jury?s determination that employee was laid off because of her political affiliation
Posted on June 03, 2009Court vacates jury?s determination that employee was laid off because of her political affiliationMiller v County of Nassau, 2009 NY Slip Op 31178(U), May 11, 2009, Supreme Court, New York County, Docket Number: 28936/92, Judge: Ute W. Lally [Not selected for publication in the Official Reports]Roberta Miller was the only Democrat employed by the Nassau County Department of Senior Citizens Affairs...
Processing of an administrative appeal does not toll the running of a statute of limitations
Posted on June 02, 2009Processing of an administrative appeal does not toll the running of a statute of limitationsMatter of Yolanda Strong v New York City Dept. of Educ., 2009 NY Slip Op 04114, decided on May 26, 2009, Appellate Division, First DepartmentState Supreme Court, New York County, Leland G...
Failure to include transcript of the disciplinary hearing bars any ?meaningful appellate review?
Posted on June 02, 2009Failure to include transcript of the disciplinary hearing bars any ?meaningful appellate review? Matter of Michael Saunders v Rockland Bd. of Coop. Educ. Servs., 2009 NY Slip Op 04248, Decided on May 26, 2009, Appellate Division, Second Department Michael Saunders was served with disciplinary charges pursuant to §3020 of the Education Law alleging that he allowed a student to be strapped into a restraining chair without cause and striking a student in the jaw and chest...
Reinstatement following separation from service while on ?workers? compensation leave? pursuant to §71 of the Civil Service Law
Posted on June 02, 2009Reinstatement following separation from service while on ?workers? compensation leave? pursuant to §71 of the Civil Service Law Matter of Richard Lazzari v Town of Eastchester, 2009 NY Slip Op 04239, Decided on May 26, 2009, Appellate Division, Second Department §71 of the Civil Service Law provides for the granting of ?workers? compensation leave? to an employee of the State or a political subdivision of the State who is disabled as the result of a work-connected injury or disease where such injury or disease does not permanently incapacitate him or her for the performance of the duties of his or her position...
Vacating an arbitration award
Posted on June 01, 2009Vacating an arbitration awardMatter of Board of Educ. of Amityville Union Free School Dist. v Amityville Teacher's Assn., 2009 NY Slip Op 04230, Decided on May 26, 2009, Appellate Division, Second DepartmentComplaining that the arbitrator's award was ?indefinite and nonfinal? when it directed that ?sixth grade teachers assigned a sixth teaching period? shall be paid at the "negotiated sixth period rate" of pay, the Board of Education asked the court to vacate the award...
Attendance reporting requirements for elected and appointed officials of a participating employer in the State?s Retirement System
Posted on June 01, 2009Attendance reporting requirements for elected and appointed officials of a participating employer in the State?s Retirement SystemDepartment of Audit and Control, I.D. No. AAC-42-08-00002-RP [No hearing scheduled]As a result of the Department of Audit and Controls?s assessment of public comment received concerning its proposed regulation, renumbering section 315...
Public Policy Exception To Employment At Will and Porn
Posted on June 01, 2009Public Policy Exception To Employment At Will and PornSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...
Certification of names from eligible lists
Posted on May 29, 2009Certification of names from eligible lists Referring to NYPPL summary concerning the distinction between mandatory eligible lists and non-mandatory eligible lists,* a reader asks: If an eligible list contains fewer than three names, may the appointing authority use ?a previous eligible list? that contains the names of at least three eligible candidates and appoint one of the three to the vacancy? It may be possible to appoint an eligible whose name appears on an unexpired list, but only under certain, limited, circumstances...
News Related to Equal Employment
Posted on May 29, 2009News Related to Equal Employment Opportunity Source: iNews © 2009 John D. Sargent - eeoinews@yahoo.com - All Rights Reserved___________________________________________EEO/iNews provides weekly links to Internet news related to employment discrimination based on race, sex, color, religion, national origin, age, disability, retaliation, FRD and LGBT...
Layoff, Preferred Lists and Reinstatement
Posted on May 29, 2009Layoff, Preferred Lists and Reinstatement of public employees in New York StateThis 334-page electronic book provides a concise guide to the applicable laws, rules and regulations, together with summaries of selected court and administrative decisions concerning the layoff and reinstatement of employees of New York State and its political subdivisions and school districts...
Selection of one of available alternative remedies provided by the State?s Human Right Law bars recourse to the other
Posted on May 28, 2009Selection of one of available alternative remedies provided by the State?s Human Right Law bars recourse to the otherTierney v Patchogue Fire Dept. Ambulance Co., Inc., 2009 NY Slip Op 50929(U), Decided on May 14, 2009, Supreme Court, Suffolk County, Judge Thomas F...
Failure to file a timely General Municipal Law §50-e(1)(a) notice of claim fatal to court assuming jurisdiction of the matter
Posted on May 28, 2009Failure to file a timely General Municipal Law §50-e(1)(a) notice of claim fatal to court assuming jurisdiction of the matterDonas v City of New York, 2009 NY Slip Op 03838, Appellate Division, First DepartmentHarry Donas claimed that as a result of his reporting alleged corruption within in agency, the New York City Department of Environmental Protection, to his supervisor, he was told that he would never be promoted...
Mediation suggested as a possible remedy to resolve the strained relationship between an employee and a supervisor
Posted on May 28, 2009Mediation suggested as a possible remedy to resolve the strained relationship between an employee and a supervisor New York City Health and Hospitals Corporation v Jean-Baptist, OATH Index No. 1648/09 OATH Administrative Law Judge Kara Miller dismissed charges against a dietary aid, Claire Jean-Baptiste, accused by the New York City Health and Hospital Corporation of speaking inappropriately to her supervisor and failing to follow her directive not to place food trays in front of the exhaust fans of a refrigerator...
The difference between a mandatory list and a non-mandatory list
Posted on May 27, 2009The difference between a mandatory list and a non-mandatory listWall v Town of Niskayuna, USDC, N.D.N.Y. 1-29-2009, 07-CV-350, decided May 22, 2009One of the central issues in the Wall case* concerning the 2005 promotion of a police officer from Sergeant to Lieutenant was the allegation that the promotion was made from a civil service list that was invalid because it contained the names of only two candidates while three were needed to constitute a valid list...
Correction officers may be sued by prisoners seeking money damages for alleged violations of 42 USC §1983 rights in state supreme court
Posted on May 27, 2009Correction officers may be sued by prisoners seeking money damages for alleged violations of 42 USC §1983 rights in state supreme courtHaywood v Drown et al, Certiorari to the Court of Appeals of New York, USSC No. 07?10374.Decided May 26, 2009New York's Correction Law §24 provides that New York State's trial courts of general jurisdiction cannot entertain §1983 suits filed by prison inmates seeking money damages from correction officers...
One-day suspension without pay recommended as the penalty for operating a truck without wearing a seatbelt
Posted on May 27, 2009One-day suspension without pay recommended as the penalty for operating a truck without wearing a seatbeltNew York City Department of Sanitation v Wright, OATH Index No. 2490/09OATH Administrative Law Judge Tynia Richard found that the Department of Sanitation established that one of its drivers, Kenneth Wright, was operating his truck without wearing a seatbelt...
Status of a police chief
Posted on May 26, 2009Status of a police chiefSource: An article first published in print by the Albany Times Union, May 24, 2009A story by Brendan J. Lyons, senior writer at the Albany Times Union, captioned ?Albany chief hasn't been sworn police officer since 1996, making carrying a weapon questionable,?* states that Albany's Chief of Police ?is not a certified police officer, which may call into question his ability to legally carry a department-issued weapon or make arrests...
COBRA Continuation Coverage Assistance under The American Recovery And Reinvestment Act
Posted on May 26, 2009COBRA Continuation Coverage Assistance under The American Recovery And Reinvestment ActSource: U.S. Department of Labor, Employee Benefits Security AdministrationThe American Recovery and Reinvestment Act of 2009 (ARRA) provides for premium reductions and additional election opportunities for health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, commonly called COBRA...
Resolving disputes involving the payment of a New York State Employees? Retirement System member?s death benefit to a beneficiary
Posted on May 26, 2009Resolving disputes involving the payment of a New York State Employees? Retirement System member?s death benefit to a beneficiaryRice v Dinapoli, 2009 NY Slip Op 50979(U), Decided on May 21, 2009, Supreme Court, Albany County, Judge Joseph C. Teresi [This decision will not be published in the printed Official Reports]Gary Rice [Gary] died, survived by three children and a wife...
The Discipline Book A Concise Guide
Posted on May 23, 2009The Discipline Book A Concise Guide to Disciplinein theNew York State Public Service 559 pagesNow available as a softcover book or as a seachable electronic bookThe Discipline Book is a handbook for administrators, union officials and attorneys involved in disciplinary actions taken against public officers and employees employed by New York State and its political subdivisions under the State's Civil Service Law, the Education Law and disciplinary grievance procedures negotiated pursuant to the Taylor Law...
Selected from iNews Related to Equal Employment Opportunity
Posted on May 23, 2009EEO/iNewsSelected from iNews Related to Equal Employment Opportunity, © 2009 John D. Sargent, All Rights Reserved, Thursday, May 21, 2009 - EEO/iNews is a free publication of EEO Services by John D. ?Jack? Sargent. Mr. Sargent retired as a Supervisory Trial Attorney from the U...
Administrative Law Judge rules that the wages of 30% of the workers in a trade covered by the CBA constitutes the ?prevailing wage rate?
Posted on May 22, 2009Administrative Law Judge rules that the wages of 30% of the workers in a trade covered by the CBA constitutes the ?prevailing wage rate? Office of the New York City Comptroller, ex rel. Local 1087 v Office of Labor Relations, OATH Index No. 2451/08 OATH Administrative Law Judge Faye Lewis upheld the New York City?s Comptroller's preliminary determination finding that radio repair mechanics (RRMs) employed by the City should be paid commensurate with the wages set forth in the collective bargaining agreement of broadcast engineers employed by ABC...
Discharge following a positive test for unlawful drugs is disqualifying misconduct for the purposes of receiving unemployment insurance benefits
Posted on May 22, 2009Discharge following a positive test for unlawful drugs is disqualifying misconduct for the purposes of receiving unemployment insurance benefitsMatter of Shugg v Commissioner of Labor, 2009 NY Slip Op 03990, decided on May 21, 2009, Appellate Division, Third DepartmentFollowing his discharge by his employer tested positive for cocaine following an injury at work, the Unemployment Insurance Appeal Board ruled that Shugg had engaged in disqualifying misconduct for the purposes of unemployment insurance and dismissed his claim for benefits...
Naming and serving a necessary party in an appeal to the Commissioner of Education is a critical requirement
Posted on May 22, 2009Naming and serving a necessary party in an appeal to the Commissioner of Education is a critical requirementAppeal of Ronald S. Miller from action of the Board of Education of the City School District of the City of Lackawanna regarding the appointment of a custodian, Decisions of the Commissioner of Education, Decision No...
Appointing authority?s final determination as whether or not to take disciplinary action against an employee controls
Posted on May 21, 2009Appointing authority?s final determination as whether or not to take disciplinary action against an employee controlsRosenblum v New York City Conflicts of Interest Board, 2009 NY Slip Op 31073(U), April 29, 2009, Supreme Court, New York County, Docket Number: 101121/09, Judge Jane S...
Dismissal recommended as the penalty for employee?s abuse of sick leave
Posted on May 21, 2009Dismissal recommended as the penalty for employee?s abuse of sick leaveNYC Department of Corrections v Auguste, OATH Index No. 2770/08OATH Administrative Law Judge Joan R. Salzman, found that a New York City Department of Corrections correction officer, Emile Auguste, had left his residence repeatedly without permission while on sick leave...
Statute of limitations to compel an official to perform a ministerial act commences to run when the demand for compliance is refused
Posted on May 20, 2009Statute of limitations to compel an official to perform a ministerial act commences to run when the demand for compliance is refusedMatter of Eidt v City of Long Beach, 2009 NY Slip Op 03902, Decided on May 12, 2009, Appellate Division, Second DepartmentDouglas Eidt and a number of disabled firefighters receiving General Municipal Law §207-a(2) pension supplementations filed a petition pursuant to CPLR Article 78 in the nature of mandamus to compel the City of Long Beach to pay the pension supplements to which they believed they were entitled...
Law in effect at the time litigation was initiated applies notwithstanding a subsequent amendment liberalizing such law
Posted on May 20, 2009Law in effect at the time litigation was initiated applies notwithstanding a subsequent amendment liberalizing such lawBarnum v New York City Tr. Auth., 2009 NY Slip Op 03855, decided on May 12, 2009, Appellate Division, Second DepartmentIn Williams v N...
Commissioner of Education grants school board member a certificate of good faith permitting the district to reimburse his legal fees and expenses
Posted on May 20, 2009Commissioner of Education grants school board member a certificate of good faith permitting the district to reimburse his legal fees and expensesApplication of Fu-Yun Tang for the removal of Uri Kaufman as a member of the Board of Education of the Lawrence Union Free School District, Decisions of the Commissioner of Education, Decision No...
Arbitrator to determine if CAB?s disciplinary procedure applies in the event an employee is summarily dismissed due to the lack of certification
Posted on May 19, 2009Arbitrator to determine if CAB?s disciplinary procedure applies in the event an employee is summarily dismissed due to the lack of certificationMatter of New York State Off. of Alcoholism & Substance Abuse Servs. v Ortiz, 2009 NY Slip Op 03809, Decided on May 14, 2009, Appellate Division, Third DepartmentNYPPL recently summarize the decision in Matter of New York State Off...
An individual?s right to the payment of the value of accrued sick leave credits deemed deferred compensation is not forfeited upon death
Posted on May 18, 2009An individual?s right to the payment of the value of accrued sick leave credits deemed deferred compensation is not forfeited upon deathMatter of Shaffer, 2009 NY Slip Op 50939(U), decided on April 30, 2009, Surrogate Court, Nassau County, Judge John B...
Placement on a ?special military list? for appointment to a position in the competitive class following military service
Posted on May 18, 2009Placement on a ?special military list? for appointment to a position in the competitive class following military serviceMatter of Woods v New York City Dept. of Citywide Admin. Services, 2009 NY Slip Op 29199, Decided on May 11, 2009, Supreme Court, New York County, Justice Michael D...
The Discipline Book
Posted on May 16, 2009The Discipline BookA Concise Guide to Discipline in the New York State Public Service - 559 pagesNow available as a softcover book or as an searchable E-bookThe Discipline Book is a handbook for administrators, union officials and attorneys involved in disciplinary actions taken against public officers and employees employed by New York State and its political subdivisions under the State's Civil Service Law, the Education Law and disciplinary grievance procedures negotiated pursuant to the Taylor Law...
EEO/iNews - Foreign Spotlight
Posted on May 16, 2009EEO/iNews - Foreign SpotlightiNews Related to Equal Employment OpportunitySource: iNews © 2009 John D. Sargent, All Rights Reserved ______________________________________________________ EEO/iNews provides weekly links to Internet news related to employment discrimination based on race, sex, color, religion, national origin, age, disability, retaliation, FRD and LGBT...
EEO/iNews of General Interest
Posted on May 16, 2009EEO/iNews of General InterestiNews Related to Equal Employment OpportunitySource: iNews © 2009 John D. Sargent, All Rights Reserved_____________________________________________________EEO/iNews provides weekly links to Internet news related to employment discrimination based on race, sex, color, religion, national origin, age, disability, retaliation, FRD and LGBT...
EEO/iNews from State CourtsiNews
Posted on May 16, 2009EEO/iNews from State CourtsiNews Related to Equal Employment Opportunity Source: iNews © 2009 John D. Sargent, All Rights Reserved_________________________________________________EEO/iNews provides weekly links to Internet news related to employment discrimination based on race, sex, color, religion, national origin, age, disability, retaliation, FRD and LGBT...
EEO/iNews from the United States Courts of Appeal
Posted on May 16, 2009EEO/iNews from the United States Courts of AppealiNews Related to Equal Employment OpportunitySource: iNews © 2009 John D. Sargent, All Rights Reserved_____________________________________________________EEO/iNews provides weekly links to Internet news related to employment discrimination based on race, sex, color, religion, national origin, age, disability, retaliation, FRD and LGBT...
EEO/iNews from the United States Supreme Court - Thursday, May 14, 2009
Posted on May 16, 2009EEO/iNews from the United States Supreme Court - Thursday, May 14, 2009Source: iNews © 2009 John D. Sargent, All Rights Reserved _____________________________________________________EEO/iNews provides weekly links to Internet news related to employment discrimination based on race, sex, color, religion, national origin, age, disability, retaliation, FRD and LGBT...
Employee terminated after losing the license required to perform the duties of the position
Posted on May 15, 2009Employee terminated after losing the license required to perform the duties of the positionMatter of New York State Off. of Children & Family Servs. v Lanterman, 2009 NY Slip Op 03808, Decided on May 14, 2009, Decided on May 14, 2009The most significant issue in the Lanterman case concerned the result if the individual does not hold the license, certification, permit or other credential required to perform the duties of the position for which the credential is required...
An attorney?s advice sent by one layperson to another layperson not an attorney-client communication subject to a FOIL exception
Posted on May 15, 2009An attorney?s advice sent by one layperson to another layperson not an attorney-client communication subject to a FOIL exceptionMatter of Siani v Clark, 2009 NY Slip Op 50906(U), Decided on April 15, 2009, Supreme Court, Albany County, Justice Henry F...
Sarbanes-Oxley determination precludes later discrimination lawsuit involving same facts
Posted on May 15, 2009Sarbanes-Oxley determination precludes later discrimination lawsuit involving same factsSource: Jackson Lewis LLP. Reproduced with permission. Copyright © 2009, Jackson Lewis. Originally published by Jackson Lewis, LLP, at www.jacksonlewis.com. All rights reserved...
Using a global positioning device to track the location of individuals while at work
Posted on May 14, 2009Using a global positioning device to track the location of individuals while at workPeople v Weaver, 2009 NY Slip Op 03762, Decided on May 12, 2009, Court of AppealsA number disciplinary actions taken against employees were initiated by, or relied upon, the use of global positioning equipment installed in the employer?s vehicle or in the employer-issued cell phone...
Approval of a plaintiff?s request that the federal district court dismiss his or her then pending lawsuit may bar later reinstating the action
Posted on May 13, 2009Approval of a plaintiff?s request that the federal district court dismiss his or her then pending lawsuit may bar later reinstating the action Perry v Commonwealth Of Pennsylvania and Pennsylvania State Police, Ca3, Docket #08-2884Bonita Perry appealed from an order of the District Court for the Western District of Pennsylvania denying her motion to reopen her case alleging claims against the Commonwealth of Pennsylvania (?Commonwealth?) under the Americans With Disabilities Act (?ADA?) and the Rehabilitation Act of 1973 in federal court...
Probationary teacher dismissed for an alleged inappropriate sexual relationship with a student
Posted on May 13, 2009Probationary teacher dismissed for an alleged inappropriate sexual relationship with a studentBlack v New York City Dept. of Educ., 2009 NY Slip Op 03768, decided on May 12, 2009, Appellate Division, First DepartmentThe Chancellor of the New York City Department of Education gave probationary teacher Thomas Black an unsatisfactory rating, terminated his ?physical education? license and place his name on the Department's Ineligible/Inquiry list...
Public benefit corporations are subject to the Open Meetings Law and the Freedom of Information Law as long as they remain public benefit corporations
Posted on May 12, 2009Public benefit corporations are subject to the Open Meetings Law and the Freedom of Information Law as long as they remain public benefit corporationsMatter of Reese v Daines, 2009 NY Slip Op 03569, decided on May 1, 2009, Appellate Division, Fourth DepartmentEllen Reese and a number of others filed a petition in Supreme Court seeking to compel Western New York Health Systems, Inc...
?Has the employee been treated less well than other employees because of his or her gender? test applied by OATH Administrative Law Judge
Posted on May 12, 2009?Has the employee been treated less well than other employees because of his or her gender? test applied by OATH Administrative Law JudgeCommission on Human Rights ex rel. Zoleo v Weinstein Family Services of NY, OATH Index No. 623/09In 2005, the City Council passed the Local Civil Rights Restoration Act, which provides that the City Human Rights law shall be liberally construed "regardless of whether federal or New York State civil and human rights laws ? have been so construed...
Rejection of an applicant for employment or license because of his or her conviction of a crime
Posted on May 11, 2009Rejection of an applicant for employment or license because of his or her conviction of a crimeMatter of Acosta v New York City Dept. of Educ., 2009 NY Slip Op 03667, decided on May 7, 2009, Appellate Division, First DepartmentThe Acosta decision explains that where a prospective employer rejects an applicant for employment because of that individual?s conviction of a crime, the employer must show that such conviction is relevant to the duties of the position or poses an unreasonable danger to clients, co-workers or the public...
Private security firm and City are joint employers under Title VII
Posted on May 11, 2009Private security firm and City are joint employers under Title VIISource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...
An appointing authority may, during collective bargaining, lawfully agree to limit its right to discharge a probationary teacher during probation
Posted on May 08, 2009An appointing authority may, during collective bargaining, lawfully agree to limit its right to discharge a probationary teacher during probationMatter of Hampton Bays Union Free School Dist. v Public Empl. Relations Bd., 2009 NY Slip Op 03656, Decided on May 7, 2009, Appellate Division, Third DepartmentThe Hampton Bays Teachers' Association filed an improper practice charge against the school district pursuant to Civil Service Law § 209-a (1) (a) and (d) after the district refused to furnish documentation underlying its termination of a probationary physical education teacher before her probationary period expired...
Arbitrator may award attorney and arbitrator notwithstanding a provision that each party is to bear its own expenses
Posted on May 08, 2009Arbitrator may award attorney and arbitrator fees notwithstanding an arbitration provision that each party is to bear its own expensesReliaStar Life Insurance Co. v EMC National Life Company,* USCA, 2nd Circuit, Docket No. 07-0828-cvA typical provision in an agreement to arbitrate a dispute provides that in the event a dispute is submitted to arbitration, ?each will bear the expenses of its own arbitrator and its own attorneys? ? the so-called American Rule...
The First Amendment?s protection does not apply in all situations involving an employee?s refusal to submit to a polygraph test
Posted on May 08, 2009The First Amendment?s protection does not apply in all situations involving an employee?s refusal to submit to a polygraph testLuty v City of Saginaw, #07-2035, 2009 U.S. App. Lexis 2674 (Unpub. 6th Cir.)Source: AELE Law Enforcement Legal Center, http://www...
Employee found guilty of disciplinary charges involving absence from work based on records generated by global positioning equipment
Posted on May 07, 2009Employee found guilty of disciplinary charges involving absence from work based on records generated by global positioning equipmentMatter of Halpin v Klein, 2009 NY Slip Op 03593, Decided on May 5, 2009, Appellate Division, First Department*Joel I. Klein, Chancellor of the New York City Department of Education, terminated John Halpin?s employment with the Department after finding Halpin guilty of having left work early on 63 occasions over a four-month period and having submitted falsified time cards for his work on those dates...
Reopening an appeal following the
Posted on May 07, 2009Reopening an appeal following the promulgation of a decision by the Commissioner of EducationMatter of Rocco N. Lanzilotta and Westbury Union Free School District, Decisions of the Commissioner of Education, Decision 15,911Section 276.8 [8 NYCRR 276.8] of the Commissioner?s regulations provides for the reopening of an appeal previously decided by the Commissioner under certain conditions and circumstances...
State Pension Fund seeks damages and reimbursement of fees from Aldus Equity partners and its principals
Posted on May 07, 2009State Pension Fund seeks damages and reimbursement of fees from Aldus Equity partners and its principalsSource: Office of the State ComptrollerOn May 6, 2009, New York State Comptroller Thomas P. DiNapoli announced that, as Sole Trustee of the New York State Common Retirement Fund, frequently referred to as The New York State Public Employees? Retirement System or ERS, he had filed a lawsuit against Aldus Equity Partners LP, its principals, and others for wrongful conduct, including various acts of fraud, bribery, breach of contract, and conspiracy...
Employee dismissed following a disciplinary fails to allege sufficient facts the disciplinary action was initiated in retaliation
Posted on May 06, 2009Employee dismissed following a disciplinary fails to allege sufficient facts the disciplinary action was initiated in retaliation for his suing the employerMatter of Chiara v Wells, 2009 NY Slip Op 03516, Decided on April 28, 2009, Appellate Division, Second DepartmentIn a separate action involving the same parties, Jeffrey Chiara sued the Town of New Castle to recover damages for alleged unlawful discrimination, disparate treatment, and hostile work environment...
Medical provider may have abused the New York State Health Insurance Program
Posted on May 06, 2009Medical provider may have abused the New York State Health Insurance ProgramSource: Office of the State ComptrollerAn audit report released May 5, 2009 by State Comptroller Thomas P. DiNapoli alleges that a Nassau County ?non-participating? medical practice took in an extra $787,134 in payments by routinely waiving the required out-of-pocket costs for services provided to employees and retirees, and their dependents, having health insurance coverage under the "Empire Plan" of New York State's Health Insurance Program (NYSHIP)...
Treatment during house calls by a healthcare provider are not covered by the FMLA -- 6th Circuit Court of Appeals
Posted on May 06, 2009Treatment during house calls by a healthcare provider are not covered by the FMLA -- 6th Circuit Court of AppealsSource: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/Copyright © 2009. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission...
EEO/iNews - Articles/Reports/Books
Posted on May 06, 2009EEO/iNews - Articles/Reports/BooksiNews Related to Equal Employment OpportunitySource: iNews © 2009 John D. Sargent, All Rights Reserved_______________________________________________________EEO/iNews provides weekly links to Internet news related to employment discrimination based on race, sex, color, religion, national origin, age, disability, retaliation, FRD and LGBT...
Employee terminated after accessing Facebook from her a home after claiming to be too ill to use a computer at work
Posted on May 05, 2009Employee terminated after accessing Facebook from her a home after claiming to be too ill to use a computer at workSource: BBC World News, April 25, 2009Employee surveillance using the employer?s on-site security cameras is becoming an important issue in terms of employee privacy and the expectation of employees to privacy at the worksite...
Contract grievance procedures must be exhausted before a grievance is ripe for consideration by the courts
Posted on May 05, 2009Contract grievance procedures must be exhausted before a grievance is ripe for consideration by the courtsMatter of Julicher v Town of Tonawanda, 2009 NY Slip Op 03273, Decided on April 24, 2009, Appellate Division, Fourth DepartmentDismissed from his position, Joseph J...
Medical interns eligible for student exemption from FICA tax
Posted on May 05, 2009Medical interns eligible for student exemption from FICA taxSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...
At-will employee not entitled to a pre-termination hearing
Posted on May 04, 2009At-will employee not entitled to a pre-termination hearingMatter of Dorsey v Herkimer County Community Coll., 2009 NY Slip Op 03262, decided on April 24, 2009, Appellate Division, Fourth DepartmentJanet Evelyn Dorsey was employed by the Herkimer County Community College in a series of annual and biyearly appointments did not have a permanent or tenure status with the College...
Administrative disciplinary decision finding employee guilty must be affirmed if supported by substantial evidence
Posted on May 04, 2009Administrative disciplinary decision finding employee guilty must be affirmed if supported by substantial evidenceMatter of DeNardo v Board of Educ. of Mamaroneck Union Free School Dist., 2009 NY Slip Op 03169, decided on April 21, 2009, Appellate Division, Second DepartmentBoard of Education of the Mamaroneck Union Free School District served Valerie DeNardo with disciplinary charges pursuant to §75 of the Civil Service Law...
Court annuls Commissioner of Human Rights determination because it lacked substantial evidence to support a finding of unlawful discrimination
Posted on May 04, 2009Court annuls Commissioner of Human Rights' determination because it lacked substantial evidence to support a finding of unlawful discriminationMatter of Suffolk County Community Coll. v New York State Div. of Human Rights, 2009 NY Slip Op 03184, Decided on April 21, 2009, Appellate Division, Second DepartmentThe Commissioner of the New York State Division of Human found Suffolk County Community College had engaged in unlawful racially discriminatory practices against one of its employees and retaliated against him...
Lack of evidence of a connection to a protected activity defeats improper practice claim
Posted on May 01, 2009Lack of evidence of a connection to a protected activity defeats improper practice claimRonald Grassel and Board of Education of The City School District of The City of New York, PERB Decision U-27502, 9/24/08The Board Public Employment Relations Board affirmed a decision of an ALJ dismissing a charge filed by Ronald Grassel alleging that the Board of Education had violated §209-a...
News Related to Equal Employment Opportunity
Posted on May 01, 2009EEO/iNews = News Related to Equal Employment OpportunitySource: iNews © 2009 John D. Sargent, All Rights Reserved__________________________________________EEO/iNews provides weekly links to Internet news related to employment discrimination based on race, sex, color, religion, national origin, age, disability, retaliation, FRD and LGBT...
Appointing authority is entitled to rely upon the findings of its own medical personnel when qualifying an applicant for employment
Posted on April 30, 2009Appointing authority is entitled to rely upon the findings of its own medical personnel when qualifying an applicant for employmentMatter of City of New York v New York City Civ. Serv. Commn., 2009 NY Slip Op 03384, decided on April 28, 2009, Appellate Division, First DepartmentThe New York Civil Service Commission reversed a determination made by the New York City Police Commissioner that disqualified a candidate for appointment as a police officer for medical reasons: the applicant suffered from sleep apnea...
Employer does not have to pay benefits to former employees guilty of embezzling
Posted on April 30, 2009Employer does not have to pay benefits to former employees guilty of embezzling William Floyd Union Free School Dist. v Wright, 2009 NY Slip Op 03164, Decided on April 21, 2009, Appellate Division, Second DepartmentThe William Floyd Union Free School District asked Supreme Court to relieve it of its contractual obligation to provide postretirement health and dental insurance benefits to Daniel C...
Local Government Leadership
Posted on April 30, 2009Local Government LeadershipSource: State Comptroller Thomas P. DiNapoliNoting recent stories concerning the shrinking pool of public sector leaders, State Comptroller Thomas P. DiNapoli said that more than 50 percent of all municipal managers are age 50 or older, and many will be eligible to retire within 5 years and counties, cities, towns, villages and school districts face a growing problem in recruiting and retaining leadership talent...
Involvement in an accident going to or from work typically is not job-related for the purposes of receiving workers' compensation benefits
Posted on April 29, 2009Involvement in an accident going to or from work typically is not job-related for the purposes of receiving workers' compensation benefitsMatter of Littles v New York State Dept. of Corrections, 2009 NY Slip Op 03088, decided on April 23, 2009, Appellate Division, Third DepartmentWhile en route to her job at a prison, Wandell Littles was injured when she was involved in an automobile accident approximately 10 feet from the entrance to the facility...
Mother-in-law not an employee under New York State's Executive Law for purposes of numerosity
Posted on April 29, 2009Mother-in-law not an employee under New York State's Executive Law for purposes of numerositySource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...
The Discipline Book -- a handbook for administrators, union officials and attorneys involved in disciplinary actions
Posted on April 29, 2009Now available in paperback, The Discipline Book -- a handbook for administrators, union officials and attorneys involved in disciplinary actions taken against public officers and employees working for New York State and its political subdivisions under the State's Civil Service Law, the Education Law and disciplinary grievance procedures negotiated through collective bargaining...
The Merit System and public employment ? does it have a future?
Posted on April 28, 2009The Merit System and public employment ? does it have a future?Ricci v DeStefano, United State Supreme Court, Docket Nos. 07-1428 and 08-328New York State?s Constitution mandates that ?appointments and promotions in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive? [Article V, Section 6]...
Authority to proceed to initiate disciplinary action against an employee
Posted on April 28, 2009Authority to initiate disciplinary action against an employeeMatter of Stafford v Board of Educ. of Mohonasen Cent. School Dist., 2009 NY Slip Op 03084, Decided on April 23, 2009, Appellate Division, Third DepartmentJoel Stafford was served with disciplinary charges pursuant to §75 of the Civil Service Law...
Copy of Updated New York Style Manual Available (Brown Book)
Posted on April 28, 2009Copy of Updated New York Style Manual Available (Brown Book)Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...
Failure to exercise discretion is an abuse of discretion
Posted on April 28, 2009Failure to exercise discretion is an abuse of discretionSource: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2009, All rights reserved http://lawprofessors.typepad.com/adminlaw/A recent opinion from the Washington Court of Appeals provides an interesting teaching point...
PERB reverts to its earlier ?past-practice? analysis in determining ?unit work?
Posted on April 27, 2009PERB reverts to its earlier ?past-practice? analysis in determining ?unit work?Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 2009 NY Slip Op 03072, Decided on April 23, 2009, Appellate Division, Third DepartmentThe Public Employment Relations Board held that Manhasset Union Free School District had violated Civil Service Law §209-a(1)(d) by transferring "unit work to outside contractors...
Can I Get Fired for Posting on Twitter or Facebook?
Posted on April 27, 2009Can I Get Fired for Posting on Twitter or Facebook?Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...
Law Blogs
Posted on April 27, 2009Law BlogsThere are literally thousands of LawBlogs currently being published on the Internet and cover topics from "Administrative Law" to "Workers' Compensation.Among the law blogs concentrating on New York State legal issues are the following:The New York Disability Law Blog Information, help and support for disabled individuals with long term disability, social security disability and workers' compensation claims...
Applying the public policy exception in a judicial review arbitration awards
Posted on April 24, 2009Applying the public policy exception in a judicial review arbitration awardsMatter of Amalgamated Transit Union v MTA Bus Co., 2009 NY Slip Op 30877(U), April 16, 2009, Supreme Court, New York County, Docket Number: 115102/08, Judge: O. Peter SherwoodAmalgamated Transit Union, Local 1179, AFL-CIO filed a petition pursuant to CPLR Article 75 CPLR Article 75 seeking the confirmation of an arbitration award in its favor providing for the reinstatement of one of its members, Adron Grate...
Sanitation worker reinstated as AWOL status due to arrest, acquittal is not misconduct
Posted on April 24, 2009Sanitation worker reinstated as AWOL status due to arrest, acquittal is not misconductSilberzweig v Doherty, ___Misc.3d___Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H...
iNews Related to Equal Employment Opportunity
Posted on April 24, 2009EEO/iNewsiNews Related to Equal Employment OpportunitySource: iNews © 2009 John D. Sargent, All Rights Reserved, Thursday, April 23, 2009________________________________________________________________________EEO/iNews provides weekly links to Internet news related to employment discrimination based on race, sex, color, religion, national origin, age, disability, retaliation, FRD and LGBT...
Lack of a clear explanation of the administrative procedure requires the granting an administrative hearing
Posted on April 23, 2009Lack of a clear explanation of the administrative procedure requires the granting an administrative hearingMeadow* v NYC Dept. of Fin., Motor Vehicles, 2009 NY Slip Op 03048, Decided on April 21, 2009, Appellate Division, First DepartmentThe notice on the back of a New York City issued parking ticket indicated three ways "TO PLEAD NOT GUILTY' AND REQUEST A HEARING":1...
Careerjet.com?s search engine aids users in finding employment opportunities in the United States and foreign countries
Posted on April 23, 2009Careerjet.com?s search engine aids users in finding employment opportunities in the United States and foreign countriesSource: Advisory from Careerjet?s marketing specialist Emily KovakMs. Kovak calls attention to Careerjet -- a job search engine designed to make the process of finding a job via the Internet easier...
Bankrupt municipality may void union contracts
Posted on April 23, 2009Bankrupt municipality may void union contractsSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...
Arbitration pursuant to the terms of a collective bargaining agreement held exclusive remedy for alleged discrimination
Posted on April 22, 2009Arbitration pursuant to the terms of a collective bargaining agreement held exclusive remedy for alleged discrimination14 Penn Plaza LLC et al. v Pyett et al., United States Supreme Court No.07-581United States Supreme Court ruled that a provision in a collective-bargaining agreement that ?clearly and unmistakably? compels union members to arbitrate Age Discrimination in Employment Act (ADEA) claims instead of using EEOC and courts to resolve the issue controls...
Local government officials invited to participate in the Local Government Leadership Institute at Hofstra and Cornell Universities
Posted on April 22, 2009Local government officials invited to participate in the Local Government Leadership Institute at Hofstra and Cornell UniversitiesSource: Office of the State ComptrollerNew York State Comptroller Thomas P. DiNapoli has established the Local Government Leadership Institute to develop fiscal and management expertise and to provide information and guidance to local government officials...
Requiring a lifeguard applicant to take a swim test using a State issued ?Speedo? swimsuit is not an act of unlawful discrimination because of age
Posted on April 22, 2009Requiring a lifeguard applicant to take a swim test using a State issued ?Speedo? swimsuit is not an act of unlawful discrimination because of ageMatter of Lester v New York State Off. of Parks, Recreation & Historic Preservation, 2009 NY Slip Op 01651, Decided on March 3, 2009, Appellate Division, Second DepartmentThe New York State Division of Human Rights dismissed Roy J...
An ambiguity as to the finality of an administrative determination tolls the running of the statute of limitations
Posted on April 21, 2009An ambiguity as to the finality of an administrative determination tolls the running of the statute of limitationsIn re Linda Branch, et. al. and the New York City Department of Education, et. al., 2009 NY Slip Op 02898, Decided on April 16, 2009, Appellate Division, First DepartmentMarco Viola and Linda Branch, employed by Thomas Buses, Inc...
Volunteer firefighter terminated after being found guilty of failing to follow procedures and falsifying documents
Posted on April 21, 2009Volunteer firefighter terminated after being found guilty of failing to follow procedures and falsifying documentsKurot v East Rockaway Fire Dept., 19 Misc 3d 1120, rev. Appellate Division, 2009 NY Slip Op 03000, April 14, 2009The East Rockaway Fire Department filed disciplinary charges against Volunteer Fire Captain LeRoy Kurot alleging that he ?knowingly and willfully violated the Purchasing Policy of the East Rockaway Fire Department and the Village of East Rockaway...
Employee benefits
Posted on April 21, 2009Employee benefitsSelected items from Jackson Lewis, LLPSource: Jackson Lewis LLP. Reproduced with permission. Copyright © 2009, Jackson Lewis. Originally published by Jackson Lewis, LLP, at http://www.jacksonlewis.com/ All rights reserved.The Jackson Lewis Law Firm has posted the following advisories on its web site:COBRA Premium Subsidies Notice Requirements and Action PlanThe new American Recovery and Reinvestment Act of 2009 ("ARRA") provides reductions in premiums and additional opportunities to elect continued group health coverage under COBRA for employees who became eligible for COBRA coverage as a result of an involuntary termination of employment between Full Story >New Special Enrollment Rights Under Group Health Plans Effective April 1, 2009The Children's Health Insurance Program Reauthorization Act of 2009 ("CHIPRA"), enacted February 4, 2009, requires group health plans to provide two new special enrollment rights beginning April 1, 2009...
Lawsuit dismissed for failure to specify the acts or omissions of unlawful discrimination underlying the complaint
Posted on April 20, 2009Lawsuit dismissed for failure to specify the acts or omissions of unlawful discrimination underlying the complaintRoth v State University of New York, et. al., 2009 NY Slip Op 02829, Decided on April 14, 2009, Appellate Division, First DepartmentJeffrey Roth sued SUNY?s State College of Optometry and named individuals, alleging he was the victim of unlawful discrimination...
Failure to repay student loans bars admission to practice law
Posted on April 20, 2009Failure to repay student loans bars admission to practice lawMatter of Anonymous, 2009 NY Slip Op 02883, Decided on April 16, 2009, Appellate Division, Third DepartmentAlthough Anonymous passed the New York State bar exam and the State Board of Law Examiners certified him for admission to practice before the Appellate Division, Third Department, the Appellate Division concluded that Anonymous ?has not presently established the character and general fitness requisite for an attorney and counselor-at-law...
News Related to Equal Employment Opportunity
Posted on April 20, 2009EEO/iNews, iNews Related to Equal Employment Opportunity© 2009 John D. Sargent, All Rights Reserved, republished with permission.________________________________________________________________________EEO/iNews provides weekly links to Internet news related to employment discrimination based on race, sex, color, religion, national origin, age, disability, retaliation, FRD and LGBT...
Terminating of a probationary teacher?s employment
Posted on April 17, 2009Terminating of a probationary teacher?s employmentMatter of Hinson and the Board of Education of the Valhalla Union Free School District, Decisions of the Commissioner of Education, Decision No. 15,908Cynthia Hinson challenged the termination of her probationary appointment and denial of tenure by the Board of Education of the Valhalla Union Free School District...
Employer policy requiring the employee charge his or her vacation days for illness if sick leave is exhausted upheld
Posted on April 17, 2009Employer policy requiring the employee charge his or her vacation days for illness if sick leave is exhausted upheldUSDOL/OALJ Reporter, Decisions of the Administrative Review Board, ARB No. 08-082, ALJ No. 2008-STA-25In Wood v Aggregate Industries, the U...
U.S. Circuit Court holds that not being recommended for the Presidential Rank Award not an adverse employment action
Posted on April 17, 2009U.S. Circuit Court holds that not being recommended for the Presidential Rank Award not an adverse employment actionSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq...
First circuit appeals court upholds two-member quorum of NLRB
Posted on April 17, 2009First circuit appeals court upholds two-member quorum of NLRBSource: Jackson Lewis LLP. Reproduced with permission. Copyright © 2009, Jackson Lewis. Originally published by Jackson Lewis, LLP, at http://www.jacksonlewis.com/ All rights reserved.In a case of first impression, the U...
Layoff, Preferred Lists and Reinstatement of public employees in New York State
Posted on April 16, 2009Layoff, Preferred Lists and Reinstatement of public employees in New York StatePublic Employment Law PressThis 340-page electronic book provides a concise guide to the applicable laws, rules and regulations, together with summaries of selected court and administrative decisions concerning the layoff and reinstatement of employees of New York State and its political subdivisions and school districts...
Threatening termination for any leave after the expiration of FMLA leave interfered with employee?s FMLA rights
Posted on April 16, 2009Threatening termination for any leave after the expiration of FMLA leave interfered with employee?s FMLA rightsSource: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/Copyright © 2009. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission...
Union has no duty to act after member files a grievance on his or her own behalf
Posted on April 16, 2009Union has no duty to act after member files a grievance on his or her own behalfGeorge Carr and Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO and County Of Westchester. ALJ Blassman, PERB U-27258The ALJ dismissed Carr's charge, which alleged that CSEA violated §§209-a...
Of special interest to public colleges and universities and public school districts - §403(b) prototype plans and sample plan language
Posted on April 16, 2009Of special interest to public colleges and universities and public school districts - §403(b) prototype plans and sample plan languageInternal Revenue Service advisory - Internal Revenue Code §403(b)The IRS is seeking comments on the proposed §403(b) plan prototype program and the ?sample plan language for drafting §403(b) prototype plans...
Duty Of Fair Representation Jurisprudential Reform:
Posted on April 15, 2009Duty Of Fair Representation Jurisprudential Reform: The Need To Adjudicate Disputes In Internal Union Review Tribunals And The Forgotten Remedy Of Re-Arbitration by Mitchell H. Rubinstein*42 U. Michigan J. L. Reform 517 (Spring 2009)http://papers.ssrn...
Removal of a public officer by the Appellate Division pursuant to Public Officers Law §36
Posted on April 15, 2009Removal of a public officer by the Appellate Division pursuant to Public Officers Law §36Matter of Salvador v Ross, 2009 NY Slip Op 02710, decided on April 9, 2009, Appellate Division, Third DepartmentJohn Salvador Jr. asked the court to remove Teri Ross from her position of Assessor of the Town of Queensbury pursuant to Public Officers Law §36 for "mismanagement...
Immunity of a municipality bars punitive damages award
Posted on April 15, 2009Municipality immune from award of punitive damages by administrative law judgeCollins v Village of Lynchburg, Ohio, Decisions of the Administrative Review Board ARB No. 07-079, ALJ No. 2006-SDW-3The U.S. Department of Labor's Administrative Review Board affirmed the Administrative Law Judge's finding that the Village of Lynchburg, Ohio, had violated the whistleblower provision of the Safe Drinking Water Act [SDWA] when it fired Michael Collins two hours after learning that he had called the Ohio EPA office about whether a proper procedure had been followed for a bacteria test for the village's water supply...
Individual denied retirement incentive provided in collective bargaining agreement
Posted on April 14, 2009Individual denied retirement incentive provided in collective bargaining agreementSpano v Kings Park Cent. School Dist., 2009 NY Slip Op 02771, Decided on April 7, 2009, Appellate Division, Second DepartmentThe collective bargaining agreement (CBA) between Kings Park Central School District and CSEA provided that Kings Park would pay a $13,000 retirement bonus to any employee with 10 years of service who notified Kings Park by March 1, 2006, of his or her intent to retire by January 1, 2007...
Procedural issues concerning the arbitrability of a grievance is for the arbitrator to resolve
Posted on April 14, 2009Procedural issues concerning the arbitrability of a grievance is for the arbitrator to resolveMatter of Board of Educ. of Schenectady City School Dist. v Schenectady Fedn. of Teachers, 2009 NY Slip Op 02716, Decided on April 9, 2009, Appellate Division, Third DepartmentThe collective bargaining agreement (CBA) between the Schenectady City School District and the Schenectady Federation of Teachers provided that "[a]ll teachers may be required to attend no more than three (3) evening meetings a year...
In contrast to removing a school official, the Commissioner of Education does not have the authority to direct the removal of a school employee
Posted on April 14, 2009In contrast to removing a school official, the Commissioner of Education does not have the authority to direct the removal of a school employeeParent of Student v East Meadow UFSD, Commissioner of Education Decision 15,907The parents of a student at East Meadow UFSD asked the Commissioner to remove two school employees from their respective positions for alleged ?willful misconduct and neglect of duty...
A school board waiver of its right to dismiss a probationary school administrator at any time during the probationary term must be explicitly stated
Posted on April 13, 2009A school board waiver of its right to dismiss a probationary school administrator at any time during the probationary term must be explicitly statedConsedine v Portville Cent. School Dist., 2009 NY Slip Op 02645, Decided on April 7, 2009, Court of AppealsThe Portville Central School District appointed John R...
Past practice ? time off to donate blood
Posted on April 13, 2009Past practice and the reversion defenseLocal 891, International Union Of Operating Engineers, AFL-CIO and Board Of Education of The City School District of The City Of New York, PERB U-27711, ALJ Cacavas A PERB Administrative Law Judge held that where evidence establishes a practice of allowing employees to book out of their shifts on blood donation days, without any limitation on the hours taken, the employer violated the Act by prospectively enforcing a ten year old policy which contained said limitation, but had never been enforced...
EEO/iNews
Posted on April 13, 2009EEO/iNewsCases and items related to equal employment opportunitySource: EEO/iNews ? iNews Related to Equal Employment Opportunity, © 2009 John D. Sargent, Esq., All Rights Reserved. Reproduced with permission. Please direct corrections, comments, questions, subscription requests and inquiries to Mr...
Please note that publication of
Posted on April 09, 2009Please note that publication of New York Public Personnel Law will resume Monday, April 13, 2009.
Union?s attempt to resolve a grievance ?informally? does not toll the statute of limitations for filing the grievance
Posted on April 08, 2009Union?s attempt to resolve a grievance ?informally? does not toll the statute of limitations for filing the grievanceMatter of Local 832 Term. Employees of the City of New York v Department of Educ. of the City of New York, 2009 NY Slip Op 02301, Decided on March 26, 2009, Appellate Division, First DepartmentLocal 832 Terminal Employees of the City of New York school lunch managers and school food service managers employed by Department of Education of the City of New York (DOE)...
COBRA Subsidy
Posted on April 08, 2009COBRA SubsidyH.R.1-341 subchapter A of chapter 1 of the Internal Revenue Code of 1986 Employees laid off from their position may be eligible to receive a 65% "COBRA subsidy" for the payment of their health insurance premiums for up to nine months. The employee is responsible for paying the remainder, i...
Federal law does not permit racial discrimination based upon client's preferences
Posted on April 07, 2009Federal law does not permit racial discrimination based upon client's preferences Pleener v. NYC Board of Education, ___F.3d___ (2d Cir. Feb. 24, 2009)Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission...
The administrative body, rather than its attorney, must indicate the basis for its administrative action or decision
Posted on April 07, 2009The administrative body, rather than its attorney, must indicate the basis for its administrative action or decision Matter of Weill v New York City Dept. of Educ., 2009 NY Slip Op 02534, decided on April 2, 2009, Appellate Division, First DepartmentScott A...
Disciplinary arbitrator has jurisdiction to hear a defense based on CSL §75-b, the Whistle Blower statute
Posted on April 07, 2009Disciplinary arbitrator has jurisdiction to hear a defense based on CSL §75-b, the Whistle Blower statuteMatter of Kowaleski v New York State Dept. of Correctional Servs., 2009 NY Slip Op 02515, decided on April 2, 2009, Appellate Division, Third DepartmentNYS Correction Officer Barabara Kowaleski was served with a notice of discipline charging her with violating various provisions of the employees' manual as the result of her conduct on three separate occasions...
Challenging a layoff determination
Posted on April 06, 2009Challenging a layoff determinationMatter of Janet Arnold, et al v Erie County Med. Ctr. Corp., 59 AD3d 1074The Arnold decision by the Appellate Division, 4th Department, sets out the steps involved in processing a lawsuit challenging the layoff of employees...
School board has broad discretion with respect to initiating disciplinary action against its members or employees of the district
Posted on April 06, 2009School board has broad discretion with respect to initiating disciplinary action against its members or employees of the districtAppeal of Peter And Francesca Gonzalez, on behalf of their daughter Nilli, from action of the Board of Education of the Middleburgh Central School District, Decisions of the Commissioner of Education, Decision No...
"As Soon As Practicable" triggered based on possibility of the need for FMLA Leave
Posted on April 06, 2009"As Soon As Practicable" triggered based on possibility of the need for FMLA LeaveSource: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2009. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation...
Governor Paterson creates a task force to improve diversity in the State's workforce
Posted on April 03, 2009Governor Paterson creates a task force to improve diversity in the State's workforceSource: Office of the GovernorA study by the New York Department of Civil Service reports that there is a discrepancy between state workforce and statewide labor force with respect to representation of Hispanics and persons with disabilities...
Supreme Court holds that CBA arbitration provisions can preclude employees from asserting statutory rights in court
Posted on April 03, 2009Supreme Court holds that CBA arbitration provisions can preclude employees from asserting statutory rights in courtSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq...
Smith, Hodges, Stabile and Gely Principals of Employment Law
Posted on April 03, 2009Smith, Hodges, Stabile and Gely Principals of Employment LawSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...
EEO/iNews
Posted on April 03, 2009EEO/iNewsSource: iNews Related to Equal Employment Opportunity - © 2009 John D. Sargent All Rights Reserved - Thursday, April 2, 2009EEO/iNews provides weekly links to Internet news related to employment discrimination based on race, sex, color, religion, national origin, age, disability, retaliation, FRD and LGBT...
Public officer entitled to compensation despite his or her failure to file his or her oath of office
Posted on April 02, 2009Public officer entitled to compensation despite his or her failure to file his or her oath of officeWhitman v City of Troy, 3 Misc 3d 794, Justice George B. Ceresia, Jr.Cases in which the failure of a public officer to file his or her oath of office in a timely manner is an issue are somewhat rare...
Positions recently designated managerial or confidential for the purposes of the Taylor Law
Posted on April 02, 2009Positions recently designated managerial or confidential for the purposes of the Taylor Law*Decisions by PERB's Office of Public Employment Practices and RepresentationSachem Central School District And United Public Service Employees Union: Cynthia Carvajal, Senior Account Clerk Typist, Carol Burns, Senior Stenographer, and Barbara Waidler, Secretary to the Superintendent, were designated as confidential based on evidence that their duties and responsibilities satisfied the criteria enumerated in §201...
Suspension without pay recommended for employee found guilty of using inappropriate speech
Posted on April 02, 2009Suspension without pay recommended for employee found guilty of using inappropriate speechHealth & Hospitals Corp. (Elmhurst Hospital Center) v. McKenzie, OATH Index No. 1239/09OATH Administrative Law Judge Kara Miller recommended a 60-day suspension for a custodial assistant, Nukrue McKenzie, employed at the Elmhurst Hospital Center of the NYC Health and Hospitals Corporation...
Lawsuit for libel brought against public official turns on whether the statements objected to were uttered with ?actual malice?
Posted on April 01, 2009Lawsuit for libel brought against public official turns on whether the statements objected to were uttered with ?actual malice?Shulman v Hunderfund, 2009 NY Slip Op 02263, Decided on March 26, 2009, Court of AppealsIn the words of Justice Smith, ?In this action for libel by a public figure, the record does not clearly and convincingly show that the statements in question were made with "actual malice," as required by New York Times Co...
Dismissal after testing positive in random drug test later declared inoperative by the Appellate Division ruled lawful
Posted on April 01, 2009Dismissal after testing positive in random drug test later declared inoperative by the Appellate Division ruled lawfulMatter of Goldin v Kelly, 2009 NY Slip Op 30646(U), March 11, 2009, Supreme Court, New York County Docket Number: 109751/08, Judge: Eileen A...
Principal Must Teach After Probationary Period Expiration To Obtain Tenure By Estoppel
Posted on April 01, 2009Principal Must Teach After Probationary Period Expiration To Obtain Tenure By EstoppelSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...
Absent damages, technical violations of the FMLA do not support recovery
Posted on March 31, 2009Absent damages, technical violations of the FMLA do not support recoverySource: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/Copyright © 2009. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation...
Please note that from time to time
Posted on March 31, 2009Please note that from time to time a political ad or endorsement may appear in the sidebar of this Blog concerning a special election for Member of the House of Representatives.We do not have any control over this posting and neither support nor oppose the candidate's election to this office.
Basis for vacating or modifying an arbitrator?s disciplinary arbitration award limited
Posted on March 31, 2009Basis for vacating or modifying an arbitrator?s disciplinary arbitration award limitedMatter of Board of Educ. of William Floyd Union Free School Dist. v Lemay, 2009 NY Slip Op 02358, Decided on March 24, 2009, Appellate Division, Second DepartmentThe William Floyd Union Free School District attempted to vacate an arbitrator?s award promulgated pursuant to Section 3020-a(5) of the Education Law...
Special Grand Jury?s report ordered sealed after public officer who was the target of the investigation resigned from public office
Posted on March 31, 2009Special Grand Jury?s report ordered sealed after public officer who was the target of the investigation resigned from public officeMatter of Seventh Report of Seneca County Special Grand Jury of Jan. 2007, 2009 NY Slip Op 02398, Decided on March 27, 2009, Appellate Division, Fourth DepartmentSeneca County Court Justice Dennis F...
State Division of Human Rights lacks jurisdiction to consider school board member?s charge that the school board unlawfully discriminated against her
Posted on March 30, 2009State Division of Human Rights lacks jurisdiction to consider school board member?s charge that the school board unlawfully discriminated against herAppeal of Antoinette A. Huffine from action of the Board of Education of the South Country Central School District regarding a discrimination complaint, Decisions of the Commissioner of Education, Decision No...
Legal Aspects of Firearms Restrictions
Posted on March 30, 2009Legal Aspects of Firearms RestrictionsSource: AELE Law Enforcement Legal Center, http://www.aele.org/, Reproduced with permission. Copyright © 2009 AELEIn February 2009 AELE published Part One - Management?s Right to Restrict or Forbid an Officer from Carrying Firearms...
Terminated employees challenge City?s requirement that employees be domiciled within its jurisdication
Posted on March 30, 2009Terminated employees challenge City?s requirement that employees be domiciled within its jurisdicationMatter of Ball v City of Syracuse, 2009 NY Slip Op 02039, Decided on March 20, 2009, Appellate Division, Fourth DepartmentThe significant issue Ball case is the legal distinction between an individual?s domicile and his or her residence...
Letter to file not an adverse employment action under Title VII
Posted on March 27, 2009Letter to file not an adverse employment action under Title VIISource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...
DOL Issues Model COBRA Subsidy Notices and Forms
Posted on March 27, 2009DOL Issues Model COBRA Subsidy Notices and FormsSource: Jackson Lewis LLP. Reproduced with permission. Copyright © 2009, Jackson Lewis. Originally published by Jackson Lewis, LLP, at www.jacksonlewis.com. All rights reserved.The United States Department of Labor (?DOL?) today posted on its website model notices and application forms to be used by employer-sponsored health plans and individuals electing COBRA in connection with the American Recovery and Reinvestment Act of 2009 (?ARRA?) COBRA premium subsidy...
Retaliation against public employees:
Posted on March 27, 2009Retaliation against public employees: conquering the time lagSource: Wait a Second! Reproduced with permission. © Bergstein & Ullrich, 2009, http://www.tbulaw.com/ All rights reserved.In order to win a retaliation case, you have to show that the defendant engaged in an adverse employment action at least a few months after you engaged in the protected activity...
Retaliation against public employees: conquering the time lag
Posted on March 27, 2009Retaliation against public employees: conquering the time lagSource: Wait a Second! Reproduced with permission. © Bergstein & Ullrich, 2009, http://www.tbulaw.com/ All rights reserved.In order to win a retaliation case, you have to show that the defendant engaged in an adverse employment action at least a few months after you engaged in the protected activity...
Retrenchment 101 ? basics concerning the layoff of employees from positions in the public service of the State and its political subdivisions
Posted on March 26, 2009Retrenchment 101 ? basics concerning the layoff of employees from positions in the public service of the State and its political subdivisionsN.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...
Governor Paterson announces comprehensive response to Inspector General?s report on the manipulation of the civil service system
Posted on March 25, 2009Governor Paterson announces comprehensive response to Inspector General?s report on the manipulation of the civil service systemSource: Executive Chamber Press OfficeGovernor David A. Paterson announced a comprehensive State response to address serious violations of the public trust in the civil service system that were outlined in a report released on March 24, 2009 by Inspector General (IG) Joseph Fisch...
The 2009 Federal Stimulus; Labor And Employment Law
Posted on March 25, 2009The 2009 Federal Stimulus; Labor And Employment LawSource: 33 Rutgers Law Rec. 1 (2009)Mitchell H. Rubinstein, Esq., author of the well-respected BLAWG Adjunct Law Professor, is a resource for information concerning labor and related law and is frequently cited in NYPPL...
City not subject to tort liability
Posted on March 24, 2009City not subject to tort liability for injury resulting from a discretionary decision involving the exercise of reasoned judgmentHeckel v City of New York, 2009 NY Slip Op 01949, Decided on March 17, 2009, Appellate Division, Second DepartmentGlenn Heckel, an employee of the New York City Department of Sanitation was injured when, while placing a piece of cardboard into the smaller of two compartments of the truck being used for collection, his hand became caught under a "hopper blade...
Commissioner of Education asked to void collective bargaining agreement between school district and an employee organization
Posted on March 24, 2009Commissioner of Education asked to void collective bargaining agreement between school district and an employee organizationAppeal of Theresa Budich, from actions of the Board of Education of the Monroe-Woodbury Central School District relating to the ratification of a collective bargaining agreement, and application for the removal of Michael DiGeronimo as a member of the board...
Personal preference not enough to establish a material adverse action
Posted on March 24, 2009Personal preference not enough to establish a material adverse actionSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...
General Municipal Law Section 209-m is operative only with respect to police departments having police officers in a negotiating unit
Posted on March 23, 2009General Municipal Law Section 209-m is operative only with respect to police departments having police officers in a negotiating unitParadiso v Loeffler, 2009 NY Slip Op 01986, Decided on March 17, 2009,The Village of Ocean Beach rejected Edward T. Paradiso?s application for, among other things, an increase in his annual compensation...
Employee serving a disciplinary probationary period terminated after violation of the terms of a disciplinary settlement
Posted on March 23, 2009Employee serving a disciplinary probationary period terminated after violation of the terms of a disciplinary settlementMatter of Outley v Upstate Med. Univ., 2009 NY Slip Op 02162, Decided on March 20, 2009, Appellate Division, Fourth DepartmentJoanne Outley, an employee at SUNY?s Upstate Medical Center, was served with disciplinary charges alleging that she was guilty of excessive absences and disciplinary notifications UMC and Outley entered into a disciplinary settlement agreement that placed her on probation for a specified period of time and bar her taking any unauthorized absences...
Administrative Law Judge holds that an employee's failure to report for drug testing must be treated as the equivalent of failing a drug test
Posted on March 20, 2009Administrative Law Judge holds that an employee's failure to report for drug testing must be treated as the equivalent of failing a drug testDepartment of Sanitation and Henry Morrison, OATH Index No. 894/09OATH Administrative Law Judge Kara Miller recommended termination for a sanitation worker, Henry Morrison, after finding that he was guilty of failing to be at home after reporting sick on two occasions and also failing to report for a random drug test...
"As Soon As Practicable" triggered based on possibility of the need for FMLA leave
Posted on March 20, 2009"As Soon As Practicable" triggered based on possibility of the need for FMLA leaveSource: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/Copyright © 2009. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation...
Statute of limitations for filing the violation of its duty of fair representation charge commences on the day member complained to union
Posted on March 20, 2009Statute of limitations for filing the violation of its duty of fair representation charge commences on the day member complained to unionLevi Mcintyre And Middle Island Administrators Association, PERB U-27349The Public Employment Relations Board affirmed the decision of its ALJ that dismissed as untimely, a duty of fair representation charge filed by Levi McIntyre...
Zone Sergeant's violation of a Division of State Police regulation and bringing discredit upon the Division justifies her demotion to Sergeant
Posted on March 19, 2009Zone Sergeant's violation of a Division of State Police regulation and bringing discredit upon the Division justifies her demotion to SergeantMatter of Revella v Felton, 2009 NY Slip Op 01753, Decided on March 12, 2009, Appellate Division, Third DepartmentChristine A...
School board?s statutory responsibility to call a special meeting of the district key to deciding an appeal seeking school superintendent's removal
Posted on March 19, 2009School board?s statutory responsibility to call a special meeting of the district key to deciding an appeal seeking school superintendent's removalApplication of Frank W. Kolbmann for the removal of Garry F. Stone as superintendent of schools of the Holland Central School District, Decision No...
Union has authority to settle case, despite grievant?s objection
Posted on March 19, 2009Union has authority to settle case, despite grievant?s objectionSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...
NYPPL soon to be available via Amazon?s Kindle
Posted on March 19, 2009NYPPL soon to be available via Amazon?s KindleSource: Notice from Amazon.comAccording to Amazon, "Kindle blogs are fully downloaded onto your Kindle so you can read them even when you're not wirelessly connected. And unlike RSS readers that often only provide headlines, blogs on Kindle give you full text content and images, and are updated wirelessly throughout the day...
Union?s right to demand and obtain documents on file with the employer in a grievance procedure does not extend to disciplinary actions
Posted on March 18, 2009Union?s right to demand and obtain documents on file with the employer in a grievance procedure does not extend to disciplinary actionsMatter of Pfau v Public Empl. Relations Bd., 2009 NY Slip Op 29108, Decided on February 19, 2009, Supreme Court, Albany CountyAnn Pfau, as Chief Administrative Judge of the Courts of the Unified Court System of the State of New York (UCS), appealed the New York State Public Employment Relations determination the UCS was guilty of improper practice within the meaning of the Taylor Law as the result of UCS?s refusal to provide certain documents a union demanded in connection with disciplinary action being taken against an employee...
College professor employed on annual basis not entitled to unemployment over the summer
Posted on March 18, 2009College professor employed on annual basis not entitled to unemployment over the summerReproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...
Administrative Law Judge rules that misunderstanding rather than misconduct lead to disciplinary action
Posted on March 18, 2009Administrative Law Judge rules that misunderstanding rather than misconduct lead to disciplinary actionNYC Department of Sanitation against Christopher Burgos, OATH Index No. 1557/09New York City Office Of Administrative Trials And Hearings Administrative Law Judge Julio Rodriguez found that the NYC Department of Sanitation failed to prove that a Department supervisor engaged in misconduct by acting irrationally and refusing to answer his supervisors' questions regarding his duties...
Failure to exhaust administrative remedy by not filing a contract grievance results in dismissal of terminated employee?s lawsuit
Posted on March 17, 2009Failure to exhaust administrative remedy by not filing a contract grievance results in dismissal of terminated employee?s lawsuitMatter of Cummings v Board of Education of Sharon Springs Cent. School District, 2009 NY Slip Op 01570, 2009 NY Slip Op 01570, Appellate Division, Third DepartmentGinger Cummings was terminated from her position as a school bus driver with the Sharon Springs Central School District because ?while off duty, she purportedly created and transmitted a false e-mail document? to the District...
A board of education may require any school district or BOCES employee to submit to a medical examination to determine his or her fitness for duty
Posted on March 17, 2009A board of education may require any school district or BOCES employee to submit to a medical examination to determine his or her fitness for dutyAppeal of D.R. from action of the Board of Education of the South Orangetown Central School District regarding a personnel matter...
Since Machiavelli's Time
Posted on March 17, 2009Since Machiavelli's TimeJonathan G. Newell, et al. v. Susan Runnels, et al., Maryland Court of Appeals No. 48, Filed: March 13, 2009Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2009, All rights reserved http://lawprofessors...
Employee dismissed after being found guilty of 14 of 16 allegations of misconduct by the Civil Service Law Section 75 hearing officer
Posted on March 16, 2009Employee dismissed after being found guilty of 14 of 16 allegations of misconduct by the Civil Service Law Section 75 hearing officeMatter of Roth v Manhasset Union Free School Dist., 2009 NY Slip Op 01807, Decided on March 10, 2009, Appellate Division, Second DepartmentJeffrey S...
The Section 207a/c Casebook- Book Review Highlight
Posted on March 16, 2009The Section 207a/c Casebook - Book Review Highlight Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...
Employee charged with misuse of employer?s e-mail for ?union election activities?
Posted on March 16, 2009Employee charged with misuse of employer?s e-mail for ?union election activities? Department of Environmental Protection v Donas, OATH Index No. 781/09 The Department of Environmental Protection filed disciplinary charges pursuant to Section 75 of the Civil Service Law and proved that the employee improperly used his work e-mail account for union activities...
An individual may not withdraw or rescind his or her resignation without the consent of the appointing authority
Posted on March 13, 2009An individual may not withdraw or rescind his or her resignation without the consent of the appointing authorityMatter of Lewis v State Univ. of N.Y. Downstate Med. Ctr., 2009 NY Slip Op 01802, Decided on March 10, 2009, Appellate Division, Second DepartmentState University Police Officer Robert Lewis submitted his written resignation from his position at the State University of New York Downstate Medical Center [DMC]...
Supervisor?s comments concerning an employee?s job performance protected by a qualified privilege absent a showing of malice
Posted on March 13, 2009Supervisor?s comments concerning an employee?s job performance protected by a qualified privilege absent a showing of maliceBayer v City of New York, 2009 NY Slip Op 01762, Decided on March 10, 2009, Appellate Division, Second DepartmentHank Bayer, who was employed as a plumber by the New York City Department of Education, sued the City, the Department of Education and his supervisor, Nunzio Piro, alleging, that Piro defamed him and repeatedly accused him of misconduct and insubordination...
GML §207-c proposal ruled a non-mandatorily subject of collective bargaining as it did not permit employer to make the initial benefit determination
Posted on March 13, 2009GML §207-c proposal ruled a non-mandatorily subject of collective bargaining as it did not permit employer to make the initial benefit determinationPort Washington Police District and Port Washington Police Benevolent Association, IncDecisions of PERB Administrative Law Judge Case No...
Sending pornography via Email is misconduct and disqualifies employee for Unemployment Insurance Benefist
Posted on March 12, 2009Sending pornography via Email is misconduct and disqualifies employee for Unemployment Insurance BenefistSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq...
Sending an e-mail concerning an interpretation of a contract provision ruled a protected activity within the meaning of the Taylor Law
Posted on March 12, 2009Sending an e-mail concerning an interpretation of a contract provision ruled a protected activity within the meaning of the Taylor LawNew York State Correctional Officers and Police Benevolent Association, Inc. and State Of New York (Division Of Parole) PERB Decision U-26734The Public Employment Relations Board affirmed, in part, and reversed, in part, a decision of an Administrative Law Judge with respect to an improper practice charge alleging that an employer violated §§209-a...
The ?notice of claim? required Education Law § 3813[1] must be more than an e-mail or an unverified [sworn to] statement
Posted on March 12, 2009The ?notice of claim? required Education Law § 3813[1] must be more than an e-mail or an unverified [sworn to] statementGastman v Department of Educ. of City of New York, 2009 NY Slip Op 01693, Decided on March 10, 2009, Appellate Division, First DepartmentAccording to the decision, Gastman had failed to file a timely notice of claim with the New York City Department of Education as required by Education Law §3813[1]...
Employee terminated after refusing to sign a statement acknowledging a ?verbal warning? given to her by her supervisor
Posted on March 11, 2009Employee terminated after refusing to sign a statement acknowledging a ?verbal warning? given to her by her supervisorMatter of Rey-calderon v Commissioner of Labor, 2009 NY Slip Op 01562, Decided on March 5, 2009, Appellate Division, Third DepartmentWanda Rey-calderon, a school bus dispatcher, for the employer reported late to work and her supervisor gave her a verbal warning and a written acknowledgment of the verbal warning for her to sign...
Arbitration does not toll requirement to administratively file charge of discrimination within 300 days
Posted on March 11, 2009Arbitration does not toll requirement to administratively file charge of discrimination within 300 daysSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq...
Independent NYSERS Pension Fund Task Force Releases Report
Posted on March 11, 2009Independent NYSERS Pension Fund Task Force Releases ReportSource: Office of the State ComptrollerDiNapoli: Many Reforms Already Implemented; Reforms Will ContinueNew York State Comptroller Thomas P. DiNapoli, the sole trustee of the New York State Employees' Retirement System has accepted and released the report of the Pension Fund Task Force, an independent advisory panel created in December 2007 to review the practices and policies of the New York State Common Retirement Fund (CRF), is posted on the Internet at http://www...
A ?special relationship? tempers a municipality?s immunity from liability for discretionary actions taken by its agents
Posted on March 10, 2009A ?special relationship? tempers a municipality?s immunity from liability for discretionary actions taken by its agentsAlvarado v City of New York, 2009 NY Slip Op 01581, Decided on March 5, 2009, Appellate Division, First DepartmentLenora Alva alleged that while acting as an interpreter for the New York City Police Department during the course of an investigation into a complaint of domestic violence, she was assaulted by a knife-wielding individual who was involved in a dispute with his girlfriend...
Employee organization charged employer had ?direct dealing? with unit members and refused to negotiate the impact of an assessment plan
Posted on March 10, 2009Employee organization charged employer had ?direct dealing? with unit members and refused to negotiate the impact of an assessment planDutchess United Educators and Dutchess Community College - PERB determinations U-27107, U-27371The Public Employment Relations Board affirmed the decision of an ALJ dismissing two charges filed by the Dutchess United Educators...
"Buyer's Remorse" Insufficient to Establish Interference Claim Where Employee Knowingly Elected Not to Exercise FMLA Rights
Posted on March 10, 2009"Buyer's Remorse" Insufficient to Establish Interference Claim Where Employee Knowingly Elected Not to Exercise FMLA RightsCopyright © 2009. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation...
Section 3020-a disciplinary charges filed against Liverpool CSD administrator dismissed by arbitrator
Posted on March 09, 2009Section 3020-a disciplinary charges filed against Liverpool CSD administrator dismissed by arbitratorSource: Press Release School Administrators Association Of New York State, March 4, 2009The disciplinary charges filed against Liverpool Director of Computer Education and Services Bonnie Ladd have been dismissed in their entirety prior to a single witness testifying...
Proof an enforceable past practice required to support alleged §209-a.1(d) violation
Posted on March 09, 2009Proof an enforceable past practice required to support alleged §209-a.1(d) violationNorth Colonie Teachers Association, NYSUP/AFT/ NEA/AFT/CIO and North Colonie Central School District, Board decision, U-27717The Board affirmed a decision of an ALJ dismissing an improper practice charge filed by the North Colonie Teachers Association (Association) alleging that the North Colonie Central School District (District) violated §209-a...
Failure to appeal an administrative law judges ruling precludes the reopening of the issue in a subsequent proceeding
Posted on March 09, 2009Failure to appeal an administrative law judges ruling precludes the reopening of the issue in a subsequent proceedingMatter of Cipriano v Onondaga County Corrections, 2009 NY Slip Op 01559, decided on March 5, 2009, Appellate Division, Third DepartmentOnondaga County Assistant Corrections Commissioner Peter A...
Establishing a task force on public employee retirement health care benefits
Posted on March 07, 2009Establishing a task force on public employee retirement health care benefitsExecutive Order 7.15Executive Order 7.15 establishing a task force to study health insurance for State and municipal employees upon retirement, provides as follows:WHEREAS, it is in the interest of all New Yorkers that the State and local governments provide retirees receiving health care benefits with quality and affordable health care; andWHEREAS, many retirees have expressed concern that their health benefits will be singled out for reduction during difficult fiscal times; andWHEREAS, health care costs have consistently grown faster than the rate of inflation in recent years, straining the finances of public employers; andWHEREAS, Government Accounting Standards Bulletin (GASB) 45 requires greater disclosure on public entities? financial statements of the their future health care liabilities to retired employees, and failure to properly account for these liabilities could potentially impact the State?s or localities? financial rating; andWHEREAS, there is a need for a dispassionate and informed study of this issue, which will allow for compilation of relevant background information; sharing of viewpoints between interested parties; exploration and evaluation of possible reform proposals; and efforts to reach consensus and make recommendations on relevant issues...
New York State Task Force on Public Retiree Health Benefits created by Executive Order of the Governor
Posted on March 06, 2009New York State Task Force on Public Retiree Health Benefits created by Executive Order of the GovernorExecutive Order 7.15Governor David A. Paterson issued an Executive Order, Executive Order 7.15,* establishing the New York State Task Force on Public Retiree Health Benefits...
Nebraska Supreme court holds state trooper can be discharged based upon his off duty association with the KKK
Posted on March 06, 2009Nebraska Supreme court holds state trooper can be discharged based upon his off duty association with the KKKSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq...
Employee organization may elect not to act provided its decision is not improperly motivated
Posted on March 06, 2009Employee organization may elect not to act provided its decision is not improperly motivatedDaniel Farrey And District Council 37, AFSCME, AFL-CIO, Decisions of the Board, PERB U-27677The Public Employment Relations Board affirmed the decision of an ALJ dismissing a duty of fair representation charge filed by Daniel Farrey (Farrey) against District Council 37 (DC 37) with respect to negotiated provisions of an agreement relating to the federal Fair Labor Standards Act (FLSA)...
A village board is not bound absent its adoption of a resolution providing for the benefit claimed to have agreed upon orally
Posted on March 05, 2009An individual whose rights could be affected by a decision by the Commissioner of Education must be named as a necessary party to the action
Posted on March 05, 2009The custodian of the records has the burden of proving that information it withheld in responding to a FOIL request is within a FOIL exemption
Posted on March 04, 2009Failure to agree to a union?s demand, without more, does not constitute bad faith
Posted on March 04, 2009Webinar on new COBRA amendments offered by Jackson Lewis Partner Joseph Lazzarotti
Posted on March 04, 2009Ability to pass hearing test without the assistance of a hearing aid found a business necessity for the purpose of qualifying for a security position
Posted on March 03, 2009Unilateral creation of a new shift for certain employees in the bargaining unit
Posted on March 02, 2009Arbitrator finds employee guilty of disciplinary charges filed against him; offers employer a choice of penalties to be imposed
Posted on March 02, 2009Employee must show a causal relationship between injury and employment to be eligible for workers? compensation benefitsMatter
Posted on March 02, 2009Legal Aspects of Firearms Restrictions - Part One: Management's Right to Restrict or Forbid a Law Enforcement Officer from Carrying Firearms
Posted on March 02, 2009Twenty-day statute of limitations for filing an appeal with the Unemployment Insurance Board strictly construed
Posted on February 27, 2009Eligibility for Workers? Compensation benefits depends on whether a work related injury was the reason why an individual retired
Posted on February 27, 2009After recommending termination, hearing officer suggests that under the circumstances, the appointing authority could impose a lesser penalty
Posted on February 27, 2009A ?general release? of liability for an injury is not sufficient to insulate a governmental agency from liability resulting from its own negligence
Posted on February 26, 2009A ?general release? of liability for an injury is not sufficient to insulate a governmental agency from liability resulting from its own negligenceRigney v Ichabod Crane Cent. School Dist., 2009 NY Slip Op 01274, Decided on February 19, 2009, Appellate Division, Third DepartmentIt is quite common for a State or municipal entity to require that individuals using its facilities sign a waiver releasing it from liability in the event the individual suffers an injury while on the premises or while participating in an activity at the facility...
PERB Administrative Law Judges consider the negotiability of demands to establish procedures concerning GML Section 207-c benefits
Posted on February 26, 2009PERB Administrative Law Judges consider the negotiability of demands to establish procedures concerning GML Section 207-c benefitsCity Of Middletown and City of Middletown Police Benevolent Association, Improper Practice Petition U-27423 [by ALJ Fitzgerald]Port Washington Police District and Port Washington Police Benevolent Association, Inc...
Concerning the removal and appointment of an individual to the position of Election Commissioner by a county legislature
Posted on February 26, 2009Concerning the removal and appointment of an individual to the position of Election Commissioner by a county legislatureMatter of Wood v County of Cortland, 2009 NY Slip Op 29069, Decided on February 18, 2009, Supreme Court, Cortland CountyThe general rule is that the power to appoint implies the power to remove...
Changing the job description of a position to include new or additional duties must satisfy a ?rational basis? test to survive judicial scrutiny
Posted on February 25, 2009Changing the job description of a position to include new or additional duties must satisfy a ?rational basis? test to survive judicial scrutinyMatter of Criscolo v Vagianelis, 2009 NY Slip Op 01319, Decided on February 24, 2009, Court of AppealsThe NYS Department of Correctional Services provides for three levels of administrative hearings to consider ?inmate misbehavior reports...
Termination recommended for two correction officers found guilty of using excessive force on an inmate
Posted on February 25, 2009Termination recommended for two correction officers found guilty of using excessive force on an inmateDept. of Corrections v Rodney Williams and Alexander Williams,* OATH Index Nos. 2215/08 and 2216/08Administrative Law Judge John B. Spooner found two correction officers searched an inmate's cell without authorization and that one of the officers used impermissible force against the inmate...
Another aspect of the emerging "Law of the E-mail"
Posted on February 25, 2009Another aspect of the emerging "Law of the E-mail"Williamson v Delsener, 2009 NY Slip Op 01333, Decided on February 24, 2009, Appellate Division, First DepartmentIn this case the Appellate Division considered the impact of an exchange of e-mails between attorneys representing the parties with respect to the settlement of the then pending litigation...
Employee?s personnel records considered by the administrative law judge in determining the disciplinary penalty to be recommended
Posted on February 24, 2009Employee?s personnel records considered by the administrative law judge in determining the disciplinary penalty to be recommendedHealth and Hospital Corp. v Milton Meyers, OATH Index No. 1487/09Administrative Law Judge Alessandra F. Zorgniotti found that a hospital aide guilty of intentionally ?chest bumping? a co-worker with such force as to cause the co-worker to stumble...
BrightScope's 401(K) ranking system now available
Posted on February 24, 2009BrightScope's 401(K) ranking system now availableSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...
New York State Health Insurance Program (NYSHIP) to verify dependent eligibility for NYSHIP participation
Posted on February 24, 2009New York State Health Insurance Program (NYSHIP) to verify dependent eligibility for NYSHIP participationSource: NYSHIP Eligibility Verification ProjectNew York State Health Insurance Program (NYSHIP) plans to conduct a ?Dependent Eligibility Verification Project? to help insure that a participant receiving health insurance benefits is entitled to them...
Probationer must prove dismissal was made in bad faith or for a statutorily or constitutionally impermissible reason
Posted on February 23, 2009Probationer must prove dismissal was made in bad faith or for a statutorily or constitutionally impermissible reasonMatter of Bonanno v Nassau County Civ. Serv. Commn., 009 NY Slip Op 01114, Decided on February 10, 2009, Appellate Division, Second DepartmentDorothy H...
Extension of Supplemental Military Leave Benefits proposed by the New York Department of Civil Service
Posted on February 23, 2009Extension of Supplemental Military Leave Benefits proposed by the New York Department of Civil ServiceProposed amendment to 4 NYCRR Sections 21.15 and 28-1.1 [I.D. No. CVS-07-09-00001-P]The Department of Civil Service has filed a notice of its intent to amend the Attendance Rules for State officers and employees in the Classified Service extending the availability of supplemental military leave benefits for certain New York State employees until December 31, 2009...
Essentials of Education Law Section 3020-a ? Disciplinary procedures
Posted on February 23, 2009Essentials of Education Law Section 3020-a ? Disciplinary proceduresSource: Office of Teaching Incentives, NYS Department of EducationSection 3020-a of the Education Law, as amended by Chapter 691 of the Laws of 1994, provides that a tenured school district educator who has been charged with incompetence or misconduct may elect to have a hearing officer review the charges and make findings of fact and recommendations as to penalty or punishment, if warranted...
A policy decision by the employer is not subject to "pre-negotiations;" the impact of that decision on unit members is negotiable
Posted on February 20, 2009A policy decision by the employer is not subject to "pre-negotiations;" the impact of that decision on unit members is negotiableMatter of County of Erie & Erie County Sheriff v State of New York Pub. Empl. Relations Bd. &c., 2009 NY Slip Op 01243, Decided on February 19, 2009, Court of AppealsCivil Service Employees Association, Inc...
Slip and fall due to the employee?s wet shoes held an accident for the purposes of qualifying for accidental disability retirement benefits
Posted on February 20, 2009Slip and fall due to the employee?s wet shoes held an accident for the purposes of qualifying for accidental disability retirement benefitsMatter of Leary v New York City Employees' Retirement Sys., 2009 NY Slip Op 01122, Decided on February 10, 2009, Appellate Division, Second DepartmentMore often than not an application for accidental disability retirement benefits is rejected on the grounds that the event leading to the injury resulting in the filing of the application for such a benefit did not constitute an ?accident? within the meaning of the controlling statute...
Developing administrative procedures ? General Municipal Law §§207-a and 207-c
Posted on February 19, 2009Developing administrative procedures ? General Municipal Law §§207-a and 207-cNYPPL held a series of seminars that dealt with implementing the provisions of Sections 207-a and 207-c of the General Municipal Law and other relevant statutes.The following outlines a number of the major issues and concerns that were considered relevant to developing procedures for handling Sections 207-a and 207-c claims...
Legal scholarship: First Statute of Westminster [1275] is cited in attorney?s brief
Posted on February 19, 2009Legal scholarship: First Statute of Westminster [1275] is cited in attorney?s briefAmalfitano v Rosenberg, 2009 NY Slip Op 01069, Decided on February 12, 2009, Court of AppealsPrecedents and legislative history are frequently referred to in briefs and court decisions...
Of special interest to school administrator-readers - student suspension hearings are complicated
Posted on February 19, 2009Of special interest to school administrator-readers - student suspension hearings are complicatedSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...
Economic stimulus bill includes COBRA obligations for employers
Posted on February 19, 2009Economic stimulus bill includes COBRA obligations for employersSource: Jackson Lewis LLP. Reproduced with permission. Copyright © 2009, Jackson Lewis. Originally published by Jackson Lewis, LLP, at www.jacksonlewis.com All rights reserved.The United States Senate and House have come to an agreement on the terms of the economic stimulus package, known as the American Recovery and Reinvestment Act of 2009 (the ?Act?)...
Employee required to answer employer?s work-related inquiries
Posted on February 18, 2009Employee required to answer employer?s work-related inquiriesSpielbauer v County of Santa Clara [Calif.], Supreme Court of California, decided February 9, 2009. Docket No. S-150402A deputy public defender, Thomas Spielbauer, being investigated by his employer, Santa Clara County, for alleged deceptive court conduct...
Arbitration award vacated where employee violated "Last Chance Agreement"
Posted on February 18, 2009Arbitration award vacated where employee violated "Last Chance Agreement"Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...
Pre-deprivation hearing not required where plaintiff convicted of a felony
Posted on February 17, 2009Pre-deprivation hearing not required where plaintiff convicted of a felonyReproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.Rosa v. CUNY, ___F...
New links with a New York State focus:
Posted on February 17, 2009New links with a New York State focusThe following links have been added to the New York State Focus links in the sidebar.Education Law Section 3020-aEducation Law, Section 3020-a Comm. RegulationsCounties in New York State - web site addressesNew York State Municipalities - web sites
Employers are not required to provide Miranda-like warnings of discipline if FMLA protections are not requested
Posted on February 17, 2009Employers are not required to provide Miranda-like warnings of discipline if FMLA protections are not requestedSource: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2009. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission...
Only service of the petition and related papers an individual authorized by the agency head to accept service constitutes proper service
Posted on February 16, 2009Only service of the petition and related papers an individual authorized by the agency head to accept service constitutes proper serviceMatter of Lowney v New York State Division of Human Rights, 2009 NY Slip Op 30270(U), February 4, 2009, Supreme Court, New York County, Docket Number: 108754/07, Judge: Walter B...
Criminal background checks of prospective school employees
Posted on February 16, 2009Criminal background checks of prospective school employeesSource: Office of the State ComptrollerThe Safe Schools Against Violence in Education (SAVE) Act, [see Chapters 180 and 181 of the Laws of 2000] became effective in July 2000. It requires, in pertinent part, that applicants for teaching and most other positions in New York?s public schools to be checked for criminal histories...
New York?s WARN statute took effect Feb. 1, 2009
Posted on February 16, 2009New York?s WARN statute took effect Feb. 1, 2009Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...
Defending and indemnifying an employee being sued for damages for acts or omissions that occurred in the performance of official duties
Posted on February 13, 2009Defending and indemnifying an employee being sued for damages for acts or omissions that occurred in the performance of official dutiesLarson v County of Seneca, 2009 NY Slip Op 50177(U), Decided on February 5, 2009, Supreme Court, Ontario County, Supreme Court Justice Craig J...
Elements essential to a grand jury making a finding concerning a public official?s performance of his or her duties
Posted on February 13, 2009Elements essential to a grand jury making a finding concerning a public official?s performance of his or her dutiesMatter of Second Report of Seneca County Special Grand Jury of Jan. 2007. 2009 NY Slip Op 00921, Decided on February 6, 2009, Appellate Division, Fourth DepartmentIt is a rather rare occurrence for a grand jury to be asked to consider alleged misconduct by of public officer...
Truck driver found to be employee for unemployment insurance purposes
Posted on February 13, 2009Truck driver found to be employee for unemployment insurance purposesSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...
The absence of language in the collective bargaining agreement providing for the claimed benefit bars the arbitration of the alleged grievance
Posted on February 12, 2009The absence of language in the collective bargaining agreement providing for the claimed benefit bars the arbitration of the alleged grievanceMatter of Union-Endicott Cent. School Dist. v Endicott Teachers' Assn., 2009 NY Slip Op 01060, Decided on February 11, 2009, Appellate Division, Third DepartmentJoanne Peters, a teacher employed by the Union-Endicott Central School District was a member of the collective bargaining unit represented by the Endicott Teachers Association...
A police force is a quasi-military organization and its members are subject strict discipline
Posted on February 12, 2009A police force is a quasi-military organization and its members are subject strict disciplineMatter of Lundy v City of Oswego, 2009 NY Slip Op 00772, Decided on February 6, 2009, Appellate Division, Fourth DepartmentGeorge Lundy sued the City of Oswego and its mayor in an effort to annul a Civil Service Law Section 75 determination terminating his employment as Oswego?s Chief of Police...
The arbitrator should determine if the issue raised in a demand for arbitration is subject to arbitration under the terms of the bargaining agreement
Posted on February 12, 2009The arbitrator should determine if the issue raised in a demand for arbitration is subject to arbitration under the terms of the bargaining agreementMatter of Town of Cheektowaga v Cheektowaga Police Club, Inc., 2009 NY Slip Op 00842, Decided on February 6, 2009, Appellate Division, Fourth DepartmentThe Cheektowaga Police Club, representing police officers below the rank of lieutenant, filed a demand for arbitration to challenge Cheektowaga?s decision to promote one officer to the rank of lieutenant instead of another officer, based on the other officer's residence outside the Town of Cheektowaga...
Accused employee does not have a right to discovery in Section 75 disciplinary proceedings
Posted on February 11, 2009Accused employee does not have a right to discovery in Section 75 disciplinary proceedingsMatter of Utica City School Dist. v Fehlhaber, 2009 NY Slip Op 00776, Decided on February 6, 2009, Appellate Division, Fourth DepartmentThe Utica City School District initiated a Section 75 disciplinary proceeding against Craig S...
Establishment of an Employee Suggestion Program creates a contractual relationship
Posted on February 11, 2009Establishment of an Employee Suggestion Program creates a contractual relationshipDaley v County of Erie, 2009 NY Slip Op 00928, Decided on February 6, 2009, Appellate Division, Fourth DepartmentPatrick L. Daley, an Eric County employee, sued the County alleging that it had violated its Employee Suggestion Program and thus was liable for damages for ?breach of contract,?Under the Program employees who submitted cost-saving suggestions that were implemented by County were given monetary awards...
Damages can be increased to account for adverse tax consequences
Posted on February 11, 2009Damages can be increased to account for adverse tax consequencesSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...
Article 75 petition seeking to vacate a disciplinary arbitration award terminating a tenured teacher dismissed as untimely
Posted on February 10, 2009Article 75 petition seeking to vacate a disciplinary arbitration award terminating a tenured teacher dismissed as untimelyMatter of Awaraka v Board of Educ. of City of New York, 2009 NY Slip Op 00682, Decided on February 3, 2009, Appellate Division, Second DepartmentJosephine Awaraka, a tenured teacher employed by the New York City Board of Education, was found guilty of eight specifications of misconduct in a hearing conducted pursuant to Education Law § 3020-a...
The Discipline Book
Posted on February 10, 2009The Discipline Book ? A handbook for administrators, union officials and attorneys involved in disciplinary actions taken against public officers and employees. Mitchell H. Rubinstein, Esq., Adjunct Professor, St. John's University, said: ... it is the only comprehensive work in this subject area...
Double Damages for Human Resource Director's Failure to Research FMLA Requirements Before Terminating Employee
Posted on February 10, 2009Double Damages for Human Resource Director's Failure to Research FMLA Requirements Before Terminating EmployeeCopyright © 2009. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation...
Union release time counts towards FMLA minimum hour requirements
Posted on February 10, 2009Union release time counts towards FMLA minimum hour requirementsSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...
Appealing an administrative decision as provided in a CBA does not toll the Statute of Limitations for filing an Article 78 action
Posted on February 09, 2009Appealing an administrative decision as provided in a CBA does not toll the Statute of Limitations for filing an Article 78 actionPak v New York City Dept. of Educ., 2009 NY Slip Op 50154(U), Decided on February 2, 2009, Supreme Court, Kings County, Justice Martin Schneier [not officially reported]Kifan Pak, a probationary teacher, was told that he would be terminated from his postion effective February 28, 2007...
Appointing authority directed to set a new disciplinary penalty after court vacates a finding of guilt on one of two specifications
Posted on February 09, 2009Appointing authority directed to set a new disciplinary penalty after court vacates a finding of guilt on one of two specifications Matter of Borrelli v Kelly, 2009 NY Slip Op 00585, Decided on February 3, 2009, Appellate Division, First DepartmentNew York City Police Commissioner filed disciplinary charges against New York City police officer Robert Borrelli...
Consideration of hearsay evidence in a Section 75 disciplinary hearing permitted
Posted on February 09, 2009Consideration of hearsay evidence in a Section 75 disciplinary hearing permittedMatter of Ebling v Town of Eden, 2009 NY Slip Op 00811, Decided on February 6, 2009, Appellate Division, Fourth DepartmentThe Appellate Division confirmed the dismissal of Stephen Ebling from his position following a hearing pursuant to Civil Service Law § 75...
Garden Leave employment contracts
Posted on February 09, 2009Garden Leave employment contractsSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...
Dismissed employee precluded from litigating her termination because of her failure to exhaust her administrative remedies
Posted on February 06, 2009Dismissed employee precluded from litigating her termination because of her failure to exhaust her administrative remediesMatter of Yan Ping Xu v New York City Dept. of Health, 2009 NY Slip Op 50147(U), Decided on January 23, 2009, Supreme Court, New York County [Not officially published]Yan Ping Xu, a New York City Research Scientist Level I, a position in the non-competitive class, was terminated from her position...
Employee protected by Title VII if he or she suffers retaliation by the employer after reporting workplace race or gender discrimination
Posted on February 06, 2009Employee protected by Title VII if he or she suffers retaliation by the employer after reporting workplace race or gender discriminationCrawford v Metropolitan Government Of Nashville And Davidson County, Tennessee, US Supreme Court, No. 06?1595, decided January 26, 2009The genesis of this ruling was an internal investigation into rumors of sexual harassment of employees by the Metro School District Employee Relations Director...
Employer's responsibility for the payment of health insurance premiums upon retirement
Posted on February 06, 2009Employer's responsibility for the payment of health insurance premiums upon retirementGary T. Winnett, Et Al. V Caterpillar, Inc., USCA, Sixth Circuit, #07-6275, Decided January 27, 2009The plaintiffs in this action are retired Caterpillar employees. When Caterpillar commenced charging these retirees for a portion of their health insurance premiums, they sued contending that Caterpillar breached its promise to provide lifetime retiree medical benefits at no cost to the retiree as set out in a 1998 collective bargaining agreement...
Notice of claim must be timely to trigger a duty to defend and indemnify the party being sued
Posted on February 05, 2009Notice of claim must be timely to trigger a duty to defend and indemnify the party being suedGutierrez v State of New York, 2009 NY Slip Op 00506, Decided on January 27, 2009, Appellate Division, Second DepartmentTypically lawsuits in which the issue is whether or not timely notice of a claim has been made involve individuals attempting to sue the State or a political subdivision of the State...
Annulling four of forty-one specifications of alleged misconduct, court sustains finding the employee guilty of the surviving charges and the penalty
Posted on February 05, 2009Annulling four of forty-one specifications of alleged misconduct, court sustains finding the employee guilty of the surviving charges and the penaltyMatter of Levi v Lauro, 2009 NY Slip Op 00542, Decided on January 27, 2009, Appellate Division, Second DepartmentThomas Lauro, Commissioner of the Westchester County Department of Environmental Facilities, adopted the report and recommendation of a hearing officer finding Miriam Baht Levi guilty of 41 specifications of incompetence and/or misconduct, and suspended her from employment without pay for a period of 60 days...
No private right of action against ?state actors? pursuant to 42 USC 1981, the Civil Rights Law
Posted on February 05, 2009No private right of action against ?state actors? pursuant to 42 USC 1981, the Civil Rights LawMcGovern v Philadelphia, USCA Third Circuit, No. 08-1632, Decided January 28, 2009The McGovern decision holds that employees of a municipality may not sue the City of Philadelphia pursuant to 42 USC 1981 for alleged race discrimination...
County Personnel Department refuses to certify the payroll following the appointment of an individual not among the three highest on the eligible list
Posted on February 04, 2009County Personnel Department refuses to certify the payroll following the appointment of an individual not among the three highest on the eligible listMatter of Gramando v Putnam County Personnel Dept., 2009 NY Slip Op 00537, Decided on January 27, 2009, Appellate Division, Second DepartmentThe Carmel Central School District appointed Joseph Gramando to the position of Director of School Facilities, Operations, and Transportation...
BOCES not entitled to claim Eleventh Amendment immunity if sued in federal courts
Posted on February 04, 2009BOCES not entitled to claim Eleventh Amendment immunity if sued in federal courtsCarrie Gorton v Bruce Gettel and Sullivan County BOCES, USCA, 2nd Circuit, Docket # 17-3190-cv, decided January 28, 2009Carrie Gorton filed a complaint in Federal District Court alleging that during her two years of employment as a counselor and recruiter at Sullivan County BOCES, she was harassed repeatedly by Bruce Gettel, a fellow teacher...
Analysis of the ?Lilly Ledbetter Fair Pay Restoration Act of 2009?
Posted on February 04, 2009Analysis of the ?Lilly Ledbetter Fair Pay Restoration Act of 2009?Source: Jackson Lewis LLP. Reproduced with permission. Copyright © 2009, Jackson Lewis. Originally published by Jackson Lewis, LLP, at www.jacksonlewis.com . All rights reserved.The ?Lilly Ledbetter Fair Pay Restoration Act of 2009? was been signed into law by President Barack Obama, overturning the U...
Cases and items related to equal employment opportunity
Posted on February 03, 2009Cases and items related to equal employment opportunitySource: EEO/iNews ? iNews Related to Equal Employment Opportunity, © 2009 John D. Sargent, Esq., All Rights Reserved. Reproduced with permission. Please direct corrections, comments, questions, subscription requests and inquiries to Mr...
USCA, District of Columbia Circuit issues primer on labor arbitration
Posted on February 03, 2009USCA, District of Columbia Circuit issues primer on labor arbitrationSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...
Agency?s initial decision sustaining an employee?s out-of-title work grievance overturned by the Governor?s Office Of Employee Relations
Posted on February 02, 2009Agency?s initial decision sustaining an employee?s out-of-title work grievance overturned by the Governor?s Office Of Employee RelationsMatter of Cushing v Governor's Off. of Empl. Relations, 2009 NY Slip Op 00478, Decided on January 29, 2009, Appellate Division, Third DepartmentThe Governor's Office of Employee Relations denied Judy M...
Union presses an appeal notwithstanding its concession that a final administrative determination rendered the appeal moot
Posted on February 02, 2009Union presses an appeal notwithstanding its concession that a final administrative determination rendered the appeal mootIn re Civil Service Technical Guild, Local 375, AFSCME, v The City of New York, et al, 2009 NY Slip Op 00454, decided on January 29, 2009, Appellate Division, First DepartmentNew York State Supreme Court Justice Carol R...
A Lawyer's Worst Nightmare ? a Law Review article by Mitchell H. Rubinstein, Esq.
Posted on February 02, 2009A Lawyer's Worst Nightmare ? a Law Review article by Mitchell H. Rubinstein, Esq.Source: Northwestern University?s Law Review [103 Northwestern Law Review Colloquy 317 [2009]NYPPL?s summary of the Appellate Division?s decision in Vinluan v Doyle was posted January 29, 2009...
NYC?s Administrative Code requires court to apply ?more stringent requirements? in adjudicating civil rights law allegations
Posted on January 30, 2009NYC?s Administrative Code requires court to apply ?more stringent requirements? in adjudicating civil rights law allegationsWilliams v New York City Hous. Auth., 2009 NY Slip Op 00440, Decided on January 27, 2009, Appellate Division, First DepartmentState Supreme Court dismissed Gina Williams? complaint alleging a hostile work environment, disparate treatment on the basis of sex, and retaliation in violation of applicable provisions of the Executive Law and the New York City Administrative Code its entirety...
Collective bargaining agreements must set out in clear and unmistakable language any waiving of an employee's right to a judicial forum
Posted on January 30, 2009Collective bargaining agreements must set out in clear and unmistakable language any waiving of an employee's right to a judicial forumAmbrosino v Village of Bronxville, 2009 NY Slip Op 00318, decided on January 20, 2009, Appellate Division, Second DepartmentJoseph Ambrosino sued the Village of Bronxville for damages based on alleged unlawful discrimination in employment on the basis of disability and for ?breach of contract...
Administrative Law Judge distinguishes between crimes prohibited by statute and actions inherently immoral and thus a crime of moral turpitude
Posted on January 30, 2009Administrative Law Judge distinguishes between crimes prohibited by statute and actions inherently immoral and thus a crime of moral turpitudeDep't of Sanitation v. Iocovello, OATH Index No. 195/09 (Dec. 10, 2008)Source: OATH determinationsJoseph Iocovello, a sanitation supervisor, pled guilty to conspiracy to defraud the U...
Due process requires good faith effort to serve disciplinary charges on employee
Posted on January 29, 2009Due process requires good faith effort to serve disciplinary charges on employeeMatter of Norgrove v Board of Educ. of City School Dist. of City of N.Y., 2009 NY Slip Op 29034, decided on January 13, 2009, Supreme Court, New York County, Justice Joan A...
Employee injured in the employer?s gym while practicing for a sports event not sponsored by the employer denied workers? compensation benefits
Posted on January 29, 2009Employee injured in the employer?s gym while practicing for a sports event not sponsored by the employer denied workers? compensation benefitsMatter of Booth v New York State Dept. of Corrections, 2009 NY Slip Op 00272, Decided on January 22, 2009, Appellate Division, Third DepartmentTroy Booth, a correction officer at Arthur Kill Correctional, was injured while practicing basketball off-duty in the Arthur Kill?s gym while practicing for the "Department of Correction Olympics," an annual event involving correction officers and staff from the various correctional facilities around the state...
Except under "exceptional circumstances," an employer cannot refuse to permit an individual to resign from his or her position
Posted on January 29, 2009Except under "exceptional circumstances," an employer cannot refuse to permit an individual to resign from his or her positionMatter of Vinluan v Doyle, 2009 NY Slip Op 00219, Decided on January 13,2009, Appellate Division, Second Department Felix Vinluan, an attorney, represented a number of nurses at a Long Island nursing home, Avalon Gardens...
Recognizing same-sex marriage for the purpose of qualifying for spousal benefits in the New York State's employees? health insurance plan [NYSHIP]
Posted on January 28, 2009Recognizing same-sex marriage for the pur