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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: 10.2/day

Last Entry: November 05, 2020 at 10:02:02

Even if a CBA's arbitration clause is broadly worded, a matter may be excluded from arbitration if the CBA's language clearly shows such an intent

Posted on March 07, 2011
Even if a CBA's arbitration clause is broadly worded, a matter may be excluded from arbitration if the CBA's language clearly shows such an intentMatter of Massena Cent. School Dist. v Massena Confederated School Employees' Assn., NYSUT, AFL-CIO, 2011 NY Slip Op 01550, Appellate Division, Third DepartmentA school district employee, Eric Fetterly, was absent from his employment for 11 months after suffering a work-related injury...

Professional consultants are employees and not independent contractors

Posted on March 07, 2011
Professional consultants are employees and not independent contractorsSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...

Agency?s use of its non-punitive procedure not a prerequisite to disciplinary action

Posted on March 07, 2011
Agency?s use of its non-punitive procedure not a prerequisite to disciplinary actionMatter of Van Osten v Horn, 37 AD3d 317The Commissioner of the New York City Department of Corrections terminated correction officer Michele Van Osten?s employment after finding her guilty of disciplinary charges that her absences from work were excessive and inadequately explained, and that she was unable to perform the full range of her duties as a corrections officer...

Investigation by NYS State Comptroller DiNapoli?s Office results in former town employee pleading guilty to charges of embezzlement

Posted on March 07, 2011
Investigation by NYS State Comptroller DiNapoli?s Office results in former town employee pleading guilty to charges of embezzlementSource: Office of the State ComptrollerThe former bookkeeper for the Towns of Kinderhook and Greenport has pleaded guilty to all charges related to her theft of approximately $300,000 in public funds following an investigation by State Comptroller Thomas P...

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Employer?s ?one-strike rule? denying

Posted on March 07, 2011
Employer?s ?one-strike rule? denying employment to applicants who test positive for drug or alcohol use did not have an unlawful disparate impact on rehabilitated drug addictsSource: Posted on the Internet in CCH Workday at http://cch-workday.blogspot...

Public policy favoring collective bargaining of the terms and conditions of employment may be truncated by a competing public policy

Posted on March 04, 2011
Public policy favoring collective bargaining of the terms and conditions of employment may be truncated by a competing public policyMatter of City of Middletown v City of Middletown Police Benevolent Assn., 2011 NY Slip Op 01400, Appellate Division, Third DepartmentThe City of Middletown Police Benevolent Association ( PBA) and the City were parties to a collective bargaining agreement that had expired...

A court's review of a college?s or university?s disciplinary action against a student limited to whether it complied with its own rules in the process

Posted on March 04, 2011
A court's review of a college?s or university?s disciplinary action against a student limited to whether it complied with its own rules in the processMatter of Hyman v Cornell Univ., 2011 NY Slip Op 01548, Appellate Division, Third DepartmentA Cornell faculty member alleged that a graduate student exchanged a series of e-mails...

Freedom of information and speechInformal

Posted on March 04, 2011
Freedom of information and speechInformal Opinions of the Attorney General: 2000-2The basic principle underlying New York State?s Freedom of Information Law [FOIL] is that all public documents are subject to disclosure upon request unless such disclosure is specifically prohibited by law...

Administrative law judge denies employee?s attempt to convert a disciplinary hearing into a ?disability proceeding?

Posted on March 03, 2011
Administrative law judge denies employee?s attempt to convert a disciplinary hearing into a ?disability proceeding?NYC Human Resources Administration v Krisilas, OATH Index #931/11A clerical associate was charged with sleeping on duty, absence without leave, excessive lateness, and discourtesy to a supervisor...

State Labor Department has proposed to incorporate by reference updates to OSHA standards into the State?s Public Employee OSHA regulations

Posted on March 03, 2011
State Labor Department has proposed to incorporate by reference updates to OSHA standards into the State?s Public Employee OSHA regulationsSource: New York State Register, March 2, 2011On March 2, 2011 the State Register published a notice that the State Labor Department has proposed to incorporate by reference updates to OSHA standards into the State Public Employee Occupational Safety and Health Standards by amending its regulations...

Settling a disciplinary action by agreeing to disciplinary probation

Posted on March 03, 2011
Settling a disciplinary action by agreeing to disciplinary probationMatter of Campbell v State of New York, 37 AD3d 993The New York State Office of Mental Health [OMH] filed disciplinary charges against Monica A. Campbell. Instead of proceeding with a disciplinary hearing, Campbell and her union, New York State Correctional Officers and Police Benevolent Association [PBA] ?settled? the matter by agreeing to have Campbell serve a ?one-year disciplinary probationary period...

Analyzing out-of-title work grievances determinations

Posted on March 03, 2011
Analyzing out-of-title work grievances determinationsSteen v Governor?s Office of Employee Relations, 271 AD2d 738Resolving out-of-title work disputes is not something courts typically do.As the Appellate Division, citing Cove v Sise, 71 NY2d 910, noted in deciding the Steen case: ?it is well settled that [a]dministrative determinations concerning position classifications are ...

Vacating or modifying an arbitrator?s award

Posted on March 03, 2011
Vacating or modifying an arbitrator?s awardMatter of Westchester County Correction Officers Benevolent Assn., Inc. v County of Westchester, 2011 NY Slip Op 01482, Appellate Division, Second DepartmentArticle 75 of the Civil Practice Rules provides that an arbitration award may be vacated by the courts upon a finding of:a...

Unfunded Mandate Relief

Posted on March 02, 2011
Unfunded Mandate ReliefSource: NYSBA Municipal Law Section, Special Committee on Mandate ReliefOn February 28, 2011 the New York State Bar Association?s Municipal Law Section?s Special Committee on Mandate Relief sent its comments* concerning the need for relief of certain mandates imposed on political subdivisions of the State, i...

Hearing officer recommends termination of Emergency Medical Technician who made a false report after responding to a 911 call

Posted on March 02, 2011
Hearing officer recommends termination of Emergency Medical Technician who made a false report after responding to a 911 callNYC Fire Department v Prosper, OATH Index #192/11OATH Administrative Law Judge John Spooner found that an emergency medical technician failed to follow protocol and made false reports when he responded to a 911 call from an elderly man who reported difficulty breathing...

Employer held liable under the Uniformed Services Employment and Reemployment Rights Act for adverse action taken against an individual by supervisor

Posted on March 02, 2011
Employer held liable under the Uniformed Services Employment and Reemployment Rights Act for adverse action taken against an individual by supervisorVincent E. Staub, Petitioner v. Proctor Hospital , USSC, No. 09-400, [March 1, 2011]While employed by Proctor Hospital, Vincent Staub served as a member of the United States Army Reserve...

Removal from the payroll

Posted on March 02, 2011
Removal from the payrollKahn v SUNY Health Science Center, 271 AD2d 656The employer tells the employee that he or she is off the payroll. The employee sues, seeking a court order barring this action pending the trial challenging his or her termination on the ground that he or she would suffer irreparable harm if the injunction were not issued because:(1) If he or she were removed from the payroll he or she would have no one to support him; (2) He or she he would be unable to live in the New York metropolitan area; and (3) He or she would be unable to prosecute the lawsuit challenging the termination...

Governor Cuomo proposes legislation providing for a statewide, objective teacher evaluation system, based on both performance and seniority

Posted on March 02, 2011
Governor Cuomo proposes legislation providing for a statewide, objective teacher evaluation system, based on both performance and senioritySource: Office of the GovernorOn March 2, 2011, Governor Andrew M. Cuomo announced that he will be submitting a program bill that would expedite and expand ongoing plans to implement a statewide, objective teacher evaluation system, based on both performance and seniority, for school districts to use when making employment decisions...

Governor Cuomo to propose school superintendent salary cap

Posted on March 01, 2011
Governor Cuomo to propose school superintendent salary capSource: Office of the GovernorOn February 28, 2011, Governor Andrew M. Cuomo announced that he will submit a program bill to cap the salaries of school superintendents across the state. The cap would be based upon student enrollment and if approved would save a combined $15 million...

Denial of tenure ? election of

Posted on March 01, 2011
Denial of tenure ? election of an alternate procedure challenging the board's decisionSpadone and Lackawanna CSD, Decision of the Comm. of Education, 14,337The Commissioner of Education dismissed the appeal filed by Anne G. Spadone challenging the Lackawanna City School Board?s action denying her tenure...

Compelling reason for absence does not excuse misconduct

Posted on March 01, 2011
Compelling reason for absence does not excuse misconductSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...

Videotape made by witnesses that observed the alleged misconduct of the employee admissible as evidence in his or her disciplinary hearing

Posted on February 28, 2011
Videotape made by witnesses that observed the alleged misconduct of the employee admissible as evidence in his or her disciplinary hearingMatter of Heisler v Scappaticci, 2011 NY Slip Op 01472, Appellate Division, Second DepartmentSteven Heisler filed CPLR Article 78 petition challenging the decision of the Town Board of the Town of Harrison, acting in its capacity as the Town?s Board of Police Commissioners, terminating his employment with the Town of Harrison Police...

Managerial and Confidential Employees ? an advisory memorandum

Posted on February 28, 2011
Managerial and Confidential Employees ? an advisory memorandumSource: Lamb & Barnosky, LLP, http://www.lambbarnosky.com/about/ Reproduced with permission. Copyright © 2011The law firm of Lamb & Barnosky has offered the following hints and observations concerning designating employees as managerial or confidential within the meaning of the Taylor Law [Civil Service Law Article 14]:"With the New Year upon us, it is a good time to review the composition of your bargaining units to ascertain whether there are any employees who should not be in a union due to their "managerial" and/or "confidential" status...

Negotiating administrative procedures to administer General Municipal Law Sections 207-a and 207-c

Posted on February 28, 2011
Negotiating administrative procedures to administer General Municipal Law Sections 207-a and 207-cRiverhead v Foote, State Sup. Ct., [Not selected for publication in the Official Reports]Exposure to the possibility of suffering a line of duty disability is a significant occupational hazard for law enforcement and fire personnel...

Procedures to be followed in the event a public entity takes-over of a private enterprise

Posted on February 28, 2011
Procedures to be followed in the event a public entity takes-over of a private enterpriseAuguste v NYC Health and Hospitals Corp., 271 AD2d 215 [Appeals on Constitutional grounds dismissed, 95 NY2d 930, motion for leave to appeal denied, 96 NY2d 704]Section 45 of the Civil Service Law sets out the rights of the employees of a private sector employer in the event the State or a municipality takes over the private entity...

Tenure by estoppel

Posted on February 25, 2011
Tenure by estoppelMatter of Ronga v Klein, 2011 NY Slip Op 01408, Appellate Division, First DepartmentA probationary administrator or teacher may attain tenure by estoppel [sometimes referred to as ?tenure by acquiescence?] when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny the individual tenure prior to the expiration of the administrator?s or teacher?s probationary term, McManus v Hempstead Union Free School District, 87 NY2d 183...

Declining to reveal ?sensitive family information? held mitigating circumstances sufficient to justify recommending a less severe disciplinary penalty

Posted on February 25, 2011
Declining to reveal ?sensitive family information? held mitigating circumstances sufficient to justify recommending a less severe disciplinary penaltyDepartment of Sanitation v Anonymous, OATH Index #181/11An employee admitted she was absent without leave for almost one year...

Agency's failing to appear at an administrative hearing may have adverse consequences

Posted on February 25, 2011
Failing to appear at an administrative hearing may have adverse consequencesAures v Buffalo Board of Education, 272 AD2d 664The Aures decision demonstrates the problem that could result if a party fails to appear at an administrative hearing as scheduled -- the hearing officer may hold the hearing in absentia and the determination will be binding on the parties...

Probationary employee challenging his or her termination must show bad faith or an improper or impermissible reason underlies the termination

Posted on February 24, 2011
Probationary employee challenging his or her termination must show bad faith or an improper or impermissible reason underlies the terminationMatter of Mathis v New York State Dept. of Correctional Servs., 2011 NY Slip Op 01190, Appellate Division, Fourth DepartmentProbationary correction officer Demar Mathis filed an Article 78 petition challenging his termination from his employment for ?failure to complete his probationary period in a satisfactory manner...

Supervisor's weekly calls to employee on FMLA leave to ask when he or she would return to work interfers with employee's FMLA rights

Posted on February 24, 2011
Supervisor's weekly calls to employee on FMLA leave to ask when he or she would return to work interfers with employee's FMLA rightsSource: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/Copyright © 2011. All rights reserved by Carl C. Bosland, Esq...

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