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Labor & Employment Law

New York Public Personnel Law New York Public Personnel Law

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

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Last Entry: September 15, 2014 at 07:00:00

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

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


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

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


Circumstantial evidence used to establish employee?s misconduct

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


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

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


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

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


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

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


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

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


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

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


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

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


An individual?s domicile and residence distinguished

Posted on August 22, 2014
An individual?s domicile and residence distinguishedWeiss v Teachout, 2014 NY Slip Op 05888, Appellate Division, Second Department*A person may have only one domicile at a time but he or she may have many residences simultaneously. From time to time, however, the term ?residence? is used as a substitute for the term ?domicile...


Determining if two positions are similar within the meaning of Education Law §3013 in a layoff situation

Posted on August 21, 2014
Determining if two positions are similar within the meaning of Education Law §3013 in a layoff situationAppeal of Arnold Goldberg, Decisions of the Commissioner of Education, Decision No. 16,635Arnold Goldberg held a tenured appointment as Director of Personnel in the tenure area of "Director of Personnel...


Limiting access to sensitive electronic databases

Posted on August 20, 2014
Limiting access to sensitive electronic databases  Source: Office of New York State?s Comptroller Thomas P. DiNapoliConcerned with access to sensitive materials contained in an electronic database, State Comptroller Thomas P. DiNapoli's auditors found that employees in six upstate New York school districts had inappropriate computer access to sensitive student data and were able to change student grades and attendance records without proper authorization...


Tampering with a public record

Posted on August 19, 2014
Tampering with a public recordOATH Index No. 1297/14The employer alleged that its project manager, without authorization, altered two work orders signed by his supervisor. He then e-mailed the orders to the contractor despite the fact that they had not be signed by the supervisor...


Threatening to use administrative authority

Posted on August 18, 2014
Threatening to use administrative authority In an Associated Press news item dated August 16, 2014 by Paul J. Weber and Will Weissert concerning the indictment of Texas Governor Rick Perry by a grand jury for allegedly ?abusing the powers of his office by carrying out a threat to veto funding for state prosecutors investigating public corruption? the article states that ?No one disputes that Perry is allowed to veto measures approved by the Legislature, including part or all of the state budget...


Contingent permanent appointments

Posted on August 15, 2014
Contingent permanent appointments Cruz v New York State Unified Ct. Sys., 2014 NY Slip Op 05640, Appellate Division, Second DepartmentTwo employees of the New York State Unified Court System and New York State Office of Court Administration, John Ferguson and Jocelyn Cruz, were removed from their positions of employment that they held pursuant to a ?contingent permanent appointment...


Transcribing the hearing in a disciplinary arbitration proceeding

Posted on August 14, 2014
Transcribing the hearing in a disciplinary arbitration proceeding2014 NY Slip Op 05700, Appellate Division, First DepartmentIn this CPLR Article 75 action Supreme Court?s confirmed the arbitrator?s decision imposing the penalty of termination on an employee [Employee] of the New York City Transit Authority [NYCTA]...


Background checks for individuals seeking to be elected or appointed as a volunteer firefighter

Posted on August 13, 2014
Background checks for individuals seeking to be elected or appointed as a volunteer firefighter  Chapter 198 of the Laws of 2014Governor Andrew M. Cuomo has signed legislation that prohibits an individual registered under the sex offender from being elected or appointed as a volunteer firefighter...


The State University of New York?s Optional Retirement Plan

Posted on August 12, 2014
The State University of New York?s Optional Retirement Plan Chapter 337 of the Laws of 1964  Fifty years ago the State University of New York was faced with a dilemma. Undergoing rapid and extensive growth, it was experiencing significant difficulty in recruiting and retaining faculty and professional staff for its new and expanding campuses...


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 9, 2014

Posted on August 11, 2014
Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 9, 2014Click on text highlighted in color to access the full reportDepartment of Health (DOH) ? Inappropriate Medicaid Payments for Recipients with Multiple Identification Numbers and No Social Security Numbers (Follow-Up) (2014-F-1)An initial audit report, issued in July 2012, identified $17...


New York State Internship -- opportunities for the Fall semester

Posted on August 09, 2014
New York State Internships -- opportunities for the Fall semesterSource: New York State Department of Civil ServiceOn August 6, 2014 New York State Civil Service Commission President Jerry Boone has announced that the application deadline is approaching for hundreds of internship opportunities available within New York State government...


Are you a Veteran?

Posted on August 09, 2014
Are you a Veteran?Do you know a Veteran, family member or friend?Learn about your benefits at: www.veterans.ny.gov  orcall 1-888 VETSNYS (838-7697). .


Providing for the defense and indemnification of officers and employees of public entities named as defendants in civil litigation

Posted on August 08, 2014
Providing for the defense and indemnification of officers and employees of public entities named as defendants in civil litigation2014 NY Slip Op 05510, Appellate Division, Second DepartmentA number of employees [Plaintiffs] of the State sued their employer and named an agency employee ?in her official capacity? for damages for ?intentional infliction of emotional distress, negligent misrepresentation, fraudulent misrepresentation, defamation, abuse of process, and civil rights violations pursuant to 42 USC § 1983...


Discontinuing the services of a probationary employee

Posted on August 08, 2014
Discontinuing the services of a probationary employee 2014 NY Slip Op 05440, Appellate Division, Second DepartmentA New York City Department of Education probationary employee [PE] serving a position in the Unclassified Service was terminated during her probationary period...


Terminating a ?government? retirement plan

Posted on August 07, 2014
Terminating a ?government? retirement planSource: Employee Plans News, Issue 2014-11, dated August 4, 2014The Internal Revenue Service August 2014 Issue of Employee Plans News has a number of articles concerning terminating an employee defined retirement plan including the following [Click on the text highlighted in color to access the information posted on the Internet): Terminating a retirement planPlan amendments required before terminationFAQs regarding plan terminationsFAQs regarding partial plan terminationAlso considered are Internal Revenue Code Section 401(a)retirement plan established and maintained for the employees of:the United States or its agency or instrumentality;a state or political subdivision, or its agency or instrumentality; oran Indian tribal government or its subdivision, or its agency or instrumentality (participants must substantially perform services essential to governmental functions rather than commercial activities...


Failure to notify superior of inmate?s not receiving his medication

Posted on August 07, 2014
Failure to notify superior of inmate?s not receiving his medicationOATH Index Nos. 591/14, & 592/14Two correction officers [COs] were charged with failing to notify their supervisor or medical staff that an inmate had not received his medication...


Changing a Connecticut teacher?s professional obligation from full-time to part-time not a ?termination? requiring a pre-termination notice and hearing

Posted on August 06, 2014
Changing a Connecticut teacher?s professional obligation from full-time to part-time not a ?termination? requiring a pre-termination notice and hearingMirabilio v Regional School District 16 [Connecticut], USCA, Second Circuit, Docket #13-4156A tenured teacher sued the school board alleging that the board had violated her due process rights under the Fourteenth Amendment and Connecticut General Statute §10-151 when it failed to provide her with ?notice and a hearing? before reducing her full-time position to a half-time position...


Teacher evaluation regulations

Posted on August 06, 2014
Teacher evaluation regulationsSource: NYMuniBlogAn article entitled Amendment to Teacher Evaluation Regulations Creates Further Confusion* by Harris Beach attorney Warren H. Richmond was published in the July 30, 2014 edition of the New York Law Journal...


School board?s abolishment of library media specialist positions challenged

Posted on August 05, 2014
School board?s abolishment of library media specialist positions challengedAppeal to the Commissioner of Education, Appeal #16,631The School Board abolished six library media specialist positions in the district. One of the media specialists [MS] appealed the Board?s action on behalf of herself and the five other media specialists, alleging that [1] its elementary schools still contain the same library facilities and resources to which elementary students have regular access and [2] the School Board created literacy centers at each of its elementary schools at which each elementary school class receives one reading class per week taught by newly-employed reading teachers and teaching assistants...


Showing a non-retaliatory purpose for its actions and the absence of evidence that the employer?s explanation was ?mere pretext? defeats employees? Title VII complaint

Posted on August 04, 2014
Showing a non-retaliatory purpose for its actions and the absence of evidence that the employer?s explanation was ?mere pretext? defeats employees? Title VII complaint USCA, 2nd Circuit, Docket 12-1526A complaint filed against the Onondaga County Sheriff?s Department pursuant to Title VII of the Civil Rights Act [42 U...


Threatening and harassing co-workers

Posted on August 04, 2014
Threatening and harassing co-workers OATH Index No. 1404/14An emergency medical technician [EMT] was charged with committing five incidents of misconduct over a two-year period. OATH Administrative Law Judge John B. Spooner sustained the charges, finding EMT  threatened and harassed co-workers...


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