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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.

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

Unit member bound by the terms set out in the collective bargaining agreement negotiated by the union

Posted on March 17, 2010
Unit member bound by the terms set out in the collective bargaining agreement negotiated by the unionMatter of Raymond v Walsh, 20063 AD3d 1715Onondaga County Deputy Sheriff Joseph D. Raymond, Sr., was receiving benefits pursuant to General Municipal Law §207-c...

State Division of Human Rights bound by arbitrator?s findings absent independent additional factual findings

Posted on March 16, 2010
State Division of Human Rights bound by arbitrator?s findings absent independent additional factual findingsMatter of New York State Dept. of Labor (unemployment Ins. Appeal Board) v New York State Div. of Human Rights, 2010 NY Slip Op 01854, Decided on March 11, 2010, Appellate Division, Third DepartmentIn May 1991 Cynthia T...

Appointing authority assigning certain duties individuals in classified titles given ?in-house? titles challenged as constituting ?out-of-title? work

Posted on March 16, 2010
Appointing authority assigning certain duties individuals in classified titles given ?in-house? titles challenged as constituting ?out-of-title? workMatter of Brynien v Governor's Off. of Empl. Relations, 2010 NY Slip Op 01872, Decided on March 11, 2010, Appellate Division, Third DepartmentKenneth Brynien, as President of the New York State Public Employees Federation, AFL-CIO, Appellant, sued the Governor's Office Of Employee after GOED denied an ?out-of-title work grievances...

Hearing officer finds employee claiming to have been suspended by his supervisor was AWOL

Posted on March 16, 2010
Hearing officer finds employee claiming to have been suspended by his supervisor was AWOLNew York City Health and Hospitals Corporation v Dely, OATH Index #2435/09The New York City Health and Hospitals Corporation charged housekeeper Julien Dely with being absent without leave...

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Appointing authority?s decision to dismiss a probationary employee found to have violated Department rules sustained

Posted on March 16, 2010
Appointing authority?s decision to dismiss a probationary employee found to have violated Department rules sustainedAbreu v Doherty, 63 AD3d 490The New York City Department of Sanitation terminated Cristobal Abreu before he had completed his maximum period of probation...

Employee suspended for 30-days without pay after being found guilty of failing to comply with a superior?s lawful order

Posted on March 16, 2010
Employee suspended for 30-days without pay after being found guilty of failing to comply with a superior?s lawful orderMatter of Nash v Kelly, 63 AD3d 483The 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...

Under certain circumstances, a municipality may modify or discontinue providing health insurance benefits to retirees

Posted on March 16, 2010
Under certain circumstances, a municipality may modify or discontinue providing health insurance benefits to retireesMatter of Kapell v Incorporated Village of Greenport, 63 AD3d 940David E. Kapell served as the mayor of the Incorporated Village of Greenport from 1994 through 2007...

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 March 16, 2010
An 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...

NLRB?s ruling that terminating non-union employees for having picketed its health clinic was lawful overturned

Posted on March 16, 2010
NLRB?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, 569 F.3d 88CSEA represented correctional officers at the Albany County Correctional Facility in Albany and sought to organize and represent employees working at a health clinic located in the Albany correctional facility operated by Correctional Medical Services, Inc...

Employer?s motion seeking summary judgment dismissing discrimination complaint must meet one or more tests

Posted on March 15, 2010
Employer?s motion seeking summary judgment dismissing discrimination complaint must meet one or more testsMichno v New York Hosp. Med. Ctr. of Queens, 2010 NY Slip Op 01938, Decided on March 9, 2010, ate Division, Second DepartmentGlenda A. Michno sued seeking damages for alleged discrimination in employment on the basis of race and national origin in violation of Executive Law §296, New York State?s Civil Rights Law...

Arbitrating a dispute involving a settlement agreement that does not contain an arbitration provision

Posted on March 15, 2010
Arbitrating a dispute involving a settlement agreement that does not contain an arbitration provisionMatter of Hendrick Hudson Cent. School Dist. v Falinski, 2010 NY Slip Op 01965, decided on March 9, 2010, Appellate Division, Second DepartmentIn response to the Hendrick Hudson Central School District petition to ?permanently stay arbitration,? Joanne Falinski filed a cross-petition seeking a court order to compel the arbitration of the issue...

State Senate required to provide employee payroll records in response to a Freedom of Information Law request

Posted on March 15, 2010
State Senate required to provide employee payroll records in response to a Freedom of Information Law requestMatter of Polokoff-Zakarin v Boggess, 62 AD3d 1141Penny 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...

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 March 15, 2010
Individual 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, 63 AD3d 572Richard 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)...

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 March 15, 2010
In 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, 12 NY3d 885For 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...

Authority of the New York City?s Department of Investigation to compel an individual to comply with an ?investigative subpoena?

Posted on March 15, 2010
Authority of the New York City?s Department of Investigation to compel an individual to comply with an ?investigative subpoena?Matter of Parkhouse v Stringer, 12 NY3d 660Virginia 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)...

New York?s Administrative Procedures Act does not require a State agency to issue a declaratory ruling when requested

Posted on March 15, 2010
New 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, 63 AD3d 1419The 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...

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 March 15, 2010
School 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., 63 AD3d 1060Two 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...

Employer can avoid disparate-impact liability based evidence that its test was valid

Posted on March 15, 2010
Employer 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.]New 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] and other states have adopted similar provisions with respect to appointment and promotion in the public service...

District not liable under Title IX for former teacher?s sexual misconduct subsequent to employment by another district

Posted on March 12, 2010
District not liable under Title IX for former teacher?s sexual misconduct subsequent to employment by another districtSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2010, Mitchell H...

Collective bargaining agreement permitted employer to require employees to charge FMLA absences to vacation accruals

Posted on March 12, 2010
Collective bargaining agreement permitted employer to require employees to charge FMLA absences to vacation accrualsMatter of Bridge & Tunnel Officers Benevolent Association v Triborough Bridge & Tunnel Auth., 57 AD3d 398The collective bargaining permitted the Triborough Bridge and Tunnel Authority to require employees to substitute paid annual leave for FMLA leave (see 29 USC §2612[d])...

Penalties imposed by appointing authorities after finding employees guilty of misconduct ?did not shock the judicial conscience?

Posted on March 12, 2010
Penalties imposed by appointing authorities after finding employees guilty of misconduct ?did not shock the judicial conscience?Matter of Cianciulli v Village of Bronxville Bd. of Police Commissioners, 57 AD3d 661Matter of Lewis v Lipsman, 57 AD3d 670The Cianciulli case:The Village of Bronxville Board of Police Commissioners found Luigi Cianciulli guilty of charges of misconduct -- punching a fellow officer in the face, breaking his nose -- and terminated his employment as a police officer...

Retirement System excludes expense allowance payments received pursuant to a collective bargaining agreement in determining the retirement allowance

Posted on March 12, 2010
Retirement System excludes expense allowance payments received pursuant to a collective bargaining agreement in determining the retirement allowanceMatter of Maillard v New York State Teachers' Retirement Sys., 57 AD3d 1299Glenn Maillard, John Raptis and John Pidgeon retired from their respective administrative positions with the William Floyd Union Free School District [Albany County]...

Marital privilege not available in administrative disciplinary actions taken against law enforcement personnel

Posted on March 12, 2010
Marital privilege not available in administrative disciplinary actions taken against law enforcement personnelRiverside County Sheriff's Department v Astrid Megan Reynolds, Court of Appeal [California], 4th District, Division 2, Docket #E043187Astrid Megan Reynolds served as a deputy sheriff with the Riverside County [California] Sheriff?s Department...

Settlement of a lawsuit ?with prejudice? bars a second action based on similar allegations involving the same parties

Posted on March 12, 2010
Settlement of a lawsuit ?with prejudice? bars a second action based on similar allegations involving the same partiesBenjamin v New York City Dept. of Health, 57 AD3d 403The Appellate Division dismissed the petition filed by Sislyn Benjamin alleging unlawful discrimination because a prior state court action containing the same claims set out in her petition was discontinued with prejudice by stipulation of the parties and thus constitutes res judicata insofar as a judgment on the merits is concerned...

Unit member alleges gender discrimination by her union after it declined to file her gender discrimination grievance against her employer

Posted on March 12, 2010
Unit member alleges gender discrimination by her union after it declined to file her gender discrimination grievance against her employerPaula D. Casamento v Massachusetts Bay Transportation Authority; Boston Carmen's Union, Local 589, USCA, First Circuit, No...

Hearing officer suggests employee

Posted on March 12, 2010
Hearing officer suggests employee be permitted to retire rather than be terminatedFire Dep't v. Maresca, OATH Index No. 2564/08At the disciplinary hearing the firefighter admitted his cocaine use and offered evidence to establish that he suffers from post-traumatic stress disorder...

Effort to vacate default judgment of an arbitration award rejected

Posted on March 11, 2010
Effort to vacate default judgment of an arbitration award rejectedMelnick v Khoroushi, 57 AD3d 414Stuart L. Melnick attempted to vacate a default judgment that had affirmed an arbitration award directing Melnick to refund $12,000 in legal fees to Khoroushi...

County Executive?s order recognizing same sex marriages held lawful

Posted on March 11, 2010
County Executive?s order recognizing same sex marriages held lawfulGodfrey v Spano, 57 AD3d 941Margaret Godfrey asked the court to declare that Westchester County Executive Order No. 3 of 2006 was illegal, unconstitutional, and void. The Order directed all departments, boards, agencies, and commissions of Westchester County under the County Executive's jurisdiction "to recognize same sex marriages lawfully entered into outside the State of New York in the same manner as they currently recognize opposite sex marriages for the purposes of extending and administering all rights and benefits belonging to these couples, to the maximum extent allowed by law...

Save harmless clause bars employees and retirees from recouping Tax Deferred Plan investment losses from the School District

Posted on March 11, 2010
Save harmless clause bars employees and retirees from recouping Tax Deferred Plan investment losses from the School DistrictMeirowitz v Bayport-Bluepoint Union Free School Dist., 57 AD3d 858Marcia Meirowitz sued the Bayport-Bluepoint Union Free School District after losing her contributions that the District transmitted to Horizon Benefits Administration, Inc...

Agency?s enforcing its rule prohibiting misconduct does not require that it show ?employee?s intent?

Posted on March 11, 2010
Agency?s enforcing its rule prohibiting misconduct does not require that it show ?employee?s intent?Matter of Daveiga v City of New York, 57 AD3d 451The New York City Housing Authority dismissed Kymel Daveiga from his position as Supervisor of Grounds after he was found to have violated the Authority?s policy prohibiting employees from "commit[ting] any ...

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