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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

Attaining tenure by estoppel

Posted on January 12, 2011
Attaining tenure by estoppelLilley v Mills, App. Div., 274 A.D.2d 644Robert Lilley was employed by the George Junior Republic Union Free School District to replace the district?s part-time per-diem school psychologist for the 1993-1994 academic year. As Lilley was paid on a per-diem basis, he did not receive any of the fringe benefits, such as health insurance, provided to full-time employees...

Disciplinary action follows failure to report for medical exam

Posted on January 12, 2011
Disciplinary action follows failure to report for medical examSantiago v Koehler, 546 NYS2d 625An appointment was schedule for an employee to be evaluated by the employer's Health Management Division. This apparently was one of a series of such appointments...

Enlarging the probationary period

Posted on January 12, 2011
Enlarging the probationary periodCaruso v Ward, 546 NYS2d 853The New York City Police Department decided to change the initial probationary period for police officers from eighteen months to two years. The Union challenged the decision and asked the Courts to annul the change...

Employee?s ?informal? comment that he or she ?may need FMLA leave? may not be sufficient to trigger FMLA protections

Posted on January 11, 2011
Employee?s ?informal? comment that he or she ?may need FMLA leave? may not be sufficient to trigger FMLA protections Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission...

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Added to NYPPL?s sidebar of Lawblogs

Posted on January 11, 2011
Added to NYPPL?s sidebar of Lawblogs New York City Employment Lawyer has been added to NYPPL's listing of "Links to Other Useful Web Pages".Focusing on ?Employment Law for Attorneys, Employees, and the General Public? and authored by Josh Bernstein, Esq...

Duties of the position assigned to employees in a different negotiating unit following the abolishment of the position

Posted on January 11, 2011
Duties of the position assigned to employees in a different negotiating unit following the abolishment of the positionCSEA Orange County Local 836 v PERB, 273 A.D.2d 626The Local 836 case concerns an employee organization?s right to negotiate the impact of a legislative body?s eliminating a certain position and the duties previously performed by incumbent of the abolished position are to be performed by an employee in another collective bargaining unit...

Unemployment insurance and Section 75 disciplinary finding

Posted on January 11, 2011
Unemployment insurance and Section 75 disciplinary findingDimps v NYC Human Resources Administration, 274 A.D.2d 625Dimps had been found guilty of 12 of 20 specifications of misconduct by an administrative law judge [ALJ] following a disciplinary hearing pursuant to Section 75 of the Civil Service Law...

All necessary parties -- i.e. parties that could be affected by the decision -- must be named in an appeal to the Commissioner of Education

Posted on January 11, 2011
All necessary parties -- i.e. parties that could be affected by the decision -- must be named in an appeal to the Commissioner of EducationAppeal of Robert W. Fife, Decisions of the Commissioner of Eduction 15,533Robert W. Fife held a tenured appointment with the Delaware Valley Central School District...

One party to a collective bargaining agreement cannot compel arbitration of a dispute unless the agreement explicitly so provides

Posted on January 10, 2011
One party to a collective bargaining agreement cannot compel arbitration of a dispute unless the agreement explicitly so providesMatter of Onondaga Community Coll. v Onondaga Community Coll. Fedn. of Teachers & Adm'rs Aft, Local 1845, 2010 NY Slip Op 09835, Appellate Division, Fourth DepartmentIt is ?black letter law? that "A party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties' clear, explicit and unequivocal' agreement to arbitrate...

Constructive criticism or discipline?

Posted on January 10, 2011
Constructive criticism or discipline?Matter of Fusco, Comm. of Ed. Decision 14,396Matter of Irving, Comm. of Ed. Decision 14,373Sometimes it may be difficult to determine the location of that thin line that separates lawful constructive criticism of an individual?s performance by a supervisor and supervisory actions addressing an individual?s performance that are disciplinary in nature...

Determining the issue in arbitration

Posted on January 10, 2011
Determining the issue in arbitrationMatter of the Schenectady Federation of Teachers, Jeffrey M. Selchick, Esq., ArbitratorIn most instances, the parties are able to agree on the issue to be resolved by the arbitrator among themselves or with the assistance of the arbitrator...

Officials serving without compensation to pay full cost of health insurance coverage

Posted on January 10, 2011
Officials serving without compensation to pay full cost of health insurance coverageFormal Opinions of the Attorney General, 2007 - F1The Attorney General has issued an opinion indicating that public authorities, whose board members are State Officers and which members, pursuant to statute, serve without salary or other compensation, may not pay for health insurance coverage for current or retired board members...

Concealing misconduct may result in a hasher penalty than might otherwise be imposed

Posted on January 10, 2011
Concealing misconduct may result in a hasher penalty than might otherwise be imposedApplication of Gonzalez, 273 AD2d 140The lesson in the Gonzalez case is that an employee?s efforts to suppress his or her misconduct may result in a harsher penalty than might otherwise be imposed...

Report of the Workforce Reform Task Force created by NYC Mayor Michael Bloomberg

Posted on January 08, 2011
Report of the Workforce Reform Task Force created by NYC Mayor Michael BloombergThe Report is posted on the Internet at: http://www.scribd.com/doc/46469466/Bloomberg-Workforce-ReportThe Workforce Reform Task Force created by New York City Mayor Michael Bloomberg issued its Report and Recommendations on January 6, 2011...

Employee terminated after being found guilty of excessive absence from work

Posted on January 07, 2011
Employee terminated after being found guilty of excessive absence from workMatter of Wallis v Sandy Cr. Cent. School Dist. Bd. of Educ., 2010 NY Slip Op 09814, Appellate Division, Fourth DepartmentThe Sandy Creek Central School District served disciplinary charges against school bus driver Mary W...

Existence of conflicting evidence in an administrative proceeding requires conducting a hearing ?to fully develop the record?

Posted on January 07, 2011
Existence of conflicting evidence in an administrative proceeding requires conducting a hearing ?to fully develop the record?Matter of Carr v Cairo Fire Dist., 2011 NY Slip Op 00056, Appellate Division, Third DepartmentJames A. Carr, a volunteer firefighter, suffered an injury to the back of his right hand when it was struck by a rotating hose reel handle...

Contracts for personal and related services questioned by the State Comptroller?s auditors

Posted on January 07, 2011
Contracts for personal and related services questioned by the State Comptroller?s auditorsSource: Office of the State ComptrollerNew York State Comptroller Thomas P. DiNapoli reports that during the period April 1, 2006 through December 21, 2009, the Office of Temporary and Disability Assistance [OTDA] had 245 active personal and miscellaneous service contracts in place with a total value of more than $847 million...

Commissioner of Education does not have jurisdiction to resolve FOIL or Title IX appeals

Posted on January 07, 2011
Commissioner of Education does not have jurisdiction to resolve FOIL or Title IX appealsApplication of Gary Berman to remove a member of the Boards of Education of the Valley Stream Central High School District and the Valley Stream Union Free District No...

Discontinuing General Municipal Law Section 207-c disability benefits

Posted on January 07, 2011
Discontinuing General Municipal Law Section 207-c disability benefitsGamma v Bloom, 274 AD2d 14In Gamma, the Appellate Division concluded that an agreement negotiated pursuant to the Taylor Law can set out the controlling procedures for resolving disputes concerning Section 207-c benefits, including resolving any dispute concerning light duty assignments and the continuation of such benefits through arbitration...

Certain New York State Department of Civil Service Rules and President's Regulations scheduled to be reviewed

Posted on January 06, 2011
Certain New York State Department of Civil Service Rules and President's Regulations scheduled to be reviewedSource: State Register, January 5, 2011The NYS Register dated January 5, 2011 reports that ?Pursuant to section 207 of the State Administrative Procedure Act (SAPA), notice is hereby provided of rules adopted by the New York State Civil Service Commission and President of the Commission during calendar years 2001 and 2006...

Equal pay for equal work

Posted on January 06, 2011
Equal pay for equal workBertoldi v State of New York, 275 AD2d 227; Motion to appeal denied, 96 NY2d 706; Motion to appeal on constitutional grounds denied, 95 NY2d 958Section 115 of the Civil Service Law provides that State employees are entitled to equal pay for equal work, and regular increases in pay in proper proportion to increase of ability, increase of output and increase of equality of work demonstrated in service...

Exposure to possibly suffering a permanent disability if continued in the job not persuasive for the purposes receiving disability retirement benefits

Posted on January 06, 2011
Exposure to possibly suffering a permanent disability if continued in the job not persuasive for the purposes receiving disability retirement benefitsGreenway v NYS Employees? Retirement System, 274 AD2d 662; Motion to appeal dismissed as untimely, 95 NY2d 917Corrections Officer Gary Greenway?s appeal of a determination by the New York State Employees? Retirement System rejecting his application for performance of duty disability retirement appeared to present a familiar scenario: the System?s physician concluded that Greenway was not permanently disabled; Greenway?s physician came to the opposite conclusion...

Union?s lawsuit alleging a breach of the CBA held subject to a six-year statute of limitations, not a four-month period for an Article 78 action

Posted on January 05, 2011
Union?s lawsuit alleging a breach of the CBA held subject to a six-year statute of limitations, not a four-month period for an Article 78 actionArkport Staff United v Arkport Cent. School Dist., 2010 NY Slip Op 09745, Appellate Division, Fourth DepartmentThe Arkport Staff United claimed that members were entitled to longevity increases under Article 27 of a collective bargaining agreement between it and the Arkport Central School District...

Arbitrator cannot add ?implied contract terms? based on a past practice but, in contrast, may consider a past practice interpreting specific CBA terms

Posted on January 05, 2011
Arbitrator cannot add ?implied contract terms? based on a past practice but, in contrast, may consider a past practice interpreting specific CBA termsMatter of Monroe County Sheriff's Off. v Monroe County Deputy Sheriffs' Assn., Inc., 2010 NY Slip Op 09797, Appellate Division, Fourth DepartmentIn a CPLR Article 75 proceeding seeking to vacate an arbitration award Supreme Court held that the arbitrator had exceeded his authority by adding an implied contract term to the collective bargaining agreement (CBA) based on the Sheriff Department?s past practice...

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 January 05, 2011
Freezing 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, 63 AD3d 1673In 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...

Free speech does not protect employee making a racist statement

Posted on January 05, 2011
Free speech does not protect employee making a racist statementPereira v Commissioner of Social Services (SJC-08218), the Supreme Judicial Court, Mass., 432 Mass. 251The First Amendment?s guarantee of free speech did not shield a twelve-year public employee from dismissal for telling a racist joke at a political gathering...

Executive Order #3 requires certain State government executives to participate in "ethics training" conducted by the Commission on Public Integrity

Posted on January 04, 2011
Executive Order 8-3 requires certain State government executives to participate in "ethics training" conducted by the Commission on Public IntegrityAmong his first acts as Governor, Governor Andrew M. Cuomo signed an Executive Order, Executive Order 8-3, requiring all Executive Chamber staff and other top state officials to participate in ethics training offered by the Commission on Public Integrity...

Reinstatement to his or her former position and salary grade after a disciplinary demotion constitutes all the relief to which an employee is entitled

Posted on January 04, 2011
Reinstatement to his or her former position and salary grade after a disciplinary demotion constitutes all the relief to which an employee is entitledMatter of Neeley v Town of Colonie, 2010 NY Slip Op 09606, Appellate Division, Third DepartmentWilliam Neeley was appointed to the position of Public Works Operation Supervisor in 1998, while Thomas Romano was appointed to the position of Highway Maintenance Supervisor in 2005...

A school employee giving reasonable assurance of continued employment is ineligible for unemployment insurance benefits between school years

Posted on January 04, 2011
A school employee giving reasonable assurance of continued employment is ineligible for unemployment insurance benefits between school yearsMatter of Sultana v New York City Dept. of Educ., 2010 NY Slip Op 09598, Appellate Division, Third DepartmentIt is ?black letter law? that "A professional employee of an educational institution is precluded from receiving unemployment insurance benefits during the time between two successive academic years where the claimant has received a reasonable assurance of continued employment"Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 4, 2009, which ruled that claimant was ineligible to receive unemployment insurance benefits because she had a reasonable assurance of continued employment...

Health insurance for retirees

Posted on January 04, 2011
Health insurance for retireesErie County Retirees Assn. v County of Erie [PA], 220 F.3d 193 (3d Cir. 2000), Certiorari denied, 121 S.Ct. 1247Many public employers provide health insurance to retired public employees. Some employers may have elected to provide a different type or level of health insurance coverage to retirees eligible for Medicare than it provides to retirees not eligible for Medicare...

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