Labor & Employment Law

With few exceptions, an officer's or an employee's resignation from a position in the classified service must be in writing.

Posted on October 13, 2020
The petitioner [Plaintiff] in this CPLR Article 78 action was employed by the defendant [Town] in a position in the Labor Class of the Classified Service when he was elected to public office in another jurisdiction. The Petitioner and the Town subsequently disputed whether Plaintiff had orally resigned his position with Town and ultimately the Town sent a letter to Plaintiff reporting that "it had accepted [Plaintiff's resignation]"* effective the December 31...

Overcoming the presumption in favor of collective bargaining terms and conditions of employment underlying the Taylor Law

Posted on October 09, 2020
Civil Service Law §71 provides that where an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the Worker's Compensation Law, "he or she shall be entitled to a leave of absence for at least one year, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position...

Determining a retirement system member's eligibility for accidental disability retirement

Posted on October 08, 2020
On May 9, 2018 the Board of Trustees of the New York City Police Pension Fund [Board] denied a New York City police officer's [Officer] application for accident disability retirement [ADR]. Officer challenged the Board's decision and Supreme Court granting his CPLR Article 78 petition seeking to vacate the Board's determination and awarded Officer ADR benefits retroactive to December 1, 2010...

Employee terminated from employment after progressive disciplinary action taken by the appointing authority

Posted on October 07, 2020
Supreme Court denied the petition filed by the employee [Educator] pursuant to CPLR Article 75 seeking to vacate an arbitration award that, after a hearing pursuant to Education Law §3020-a, found the Educator guilty of the disciplinary charges filed against him and imposed the penalty of dismissal from employment...

To access this complete feed in the blog feed reader login or register for free.

Regulating partisan political activities of certain employees of a federal, state, municipal, educational or research entity

Posted on October 07, 2020
The Hatch Act, 5 U.S.C. §§7321-7326, regulates partisan political activities of most federal executive branch employees.The Hatch Act [Act] also applies to officers and employees in the executive branch of state and local government whose principal employment involves an activity financed in whole or in part by federal loans or grants...

Diversity training programs

Posted on October 07, 2020
In an article captioned "Diversity Work, Interrupted",* Inside Higher Ed's daily news update dated October 7, 2020, reports that "some institutions have begun to cancel diversity, equity and inclusion programs in response to" an Executive Order, "Executive Order on Combating Race and Sex Stereotyping," issued on  September 22, 2020...

Determining if an employee's injury sustained "in the line of duty" was an accident for the purposes of eligibility for accidental disability retirement benefits

Posted on October 06, 2020
The NYC Administrative Code §13-252 requires providing Accident Disability Retirement (ADR) benefits to an injured police officer when a medical examination shows that the officer is "physically or mentally incapacitated for the performance of city-service as a natural and proximate result of  [1] an accidental injury received in such city-service while a member" of the Pension Fund and [2] the "disability was not the result of willful negligence" on the part of the officer and [3] the officer "should be retired...

Former employee's application seeking the removal of a "problem code" from his personnel file rejected

Posted on October 05, 2020
Supreme Court dismissed an Article 78 petition filed by a former employee [Plaintiff] of the New York City Department of Education [DOE] challenging its placement of a "problem code" in Plaintiff's employment file and its refusal of his request to begin an "employment investigation" to remove the code...

New York State vs. COVID-19 October 4, 2020 update

Posted on October 05, 2020
Governor Andrew M. Cuomo's October 4th, 2020 update on the state's progress during the ongoing COVID-19 pandemic reports that in the top 20 ZIP codes in areas that have seen recent outbreaks - Brooklyn, Queens and Rockland and Orange Counties - 5,392 tests were conducted, yielding 261 positives or a 4...

October 2020 AELE case notes, publications, and seminar alert

Posted on October 04, 2020
Americans for Effective Law Enforcement, Inc. [AELE] case notes, publications, and seminar alerts for October 2020 are set out below. Click on the text highlighted in color to access the full alert. Courts Address COVID-19 Issues in Prisons and Jails...

School district audits released during the week ending October 2, 2020

Posted on October 03, 2020
On October 2, 2020, New York State Comptroller Thomas P. DiNapoli announced the following school district audits have been issued. Click on the text highlighted in color to access the full report. Northern Adirondack Central School District ? Financial Condition (Clinton County and Franklin County) Auditors found expenditures have exceeded appropriations by a total $626,000 in 2017-18 and 2018-19...

Municipal audits issued during the week ending October 2, 2020

Posted on October 02, 2020
On October 2, 2020, New York State Comptroller Thomas P. DiNapoli announced the following local government audits was issued. Click on the text highlighted in color to access the full report.City of Amsterdam ? Budget Review (Montgomery County) Auditors found that certain significant revenue and expenditure projections in the 2020-21 adopted budget are not reasonable and other matters that require city officials? attention...

Failure to satisfy procedural requirements bars considering the merits of a CPLR Article 78 petition challenging the termination of a probationary employee

Posted on October 02, 2020
The Petitioner [Teacher] initiated a CPLR Article 78 proceeding in which she challenged her dismissal from her employment as a probationary teacher. Supreme Court dismissed Teacher's Article 78 petition for a number of procedural reasons and Teacher appealed...

Sisters admit theft of $22,000 of their deceased mother's New York State pension payments

Posted on October 01, 2020
State Comptroller Thomas P. DiNapoli and Westchester County District Attorney Anthony A. Scarpino, Jr. announced the convictions of two sisters alleged to have concealed the death of their mother in order to unlawfully obtain nearly $22,000 from the Retirement System following her death...

Worker Classification - employee or independent contractor - Internal Revenue Service Webinar scheduled for October 7, 2020

Posted on September 30, 2020
The Tax Exempt and Government Entities Division of the Internal Revenue Service has issued a reminder inviting interested individuals who have not already done so should click here to registerfor the free Worker Classification Webinar to be held on October 7, 2020 at 1:00 p...

Workers' Compensation benefits to be paid to a claimant during the claimant's pre-trial incarceration

Posted on September 28, 2020
Is a person entitled to receive workers' compensation benefits while he is in jail?  An individual [Claimant] was receiving Workers' Compensation benefits when he was arrested. Unable to obtain bail, Claimant was kept in jail in "pretrial detention...

New York State vs. COVID-19: September 27, 2020 update

Posted on September 27, 2020
Governor Andrew M. Cuomo's September 27, 2020 update of New York State's progress during the ongoing COVID-19 pandemic reports that the number of new cases, percentage of tests that were positive.   September 27, 2020, data is summarized below:   Patient Hospitalization - 541 (+14) Patients Newly Admitted - 88 Hospital Counties - 34 Number ICU - 155 (-9) Number ICU with Intubation - 59 (-16) Total Discharges - 76,595 (+67) Deaths - 6 Total Deaths - 25,456   Of the 84,770 test results reported to New York State yesterday, 866, or 1...

Lucha contra la mala conducta en el trabajo

Posted on September 26, 2020
Lucha contra la mala conducta en el trabajo: los empleadores pueden poner a disposición de su personal una "aplicación" (la aplicación #NotMe) que permite la presentación fácil y oportuna de quejas de presunta mala conducta del supervisor o compañero de trabajo a los oficiales de personal, equipos de recursos humanos, oficiales de cumplimiento o individuos designados...

Audits of State Departments and Agencies issued September 25, 2020

Posted on September 26, 2020
On September 25, 2020, New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued.Click on the text in color to access the full report.  Department of Environmental Conservation: Oversight of Waste Tire Cleanup and Use of Waste Tire Fees (Follow-Up) (2020-F-12) A report issued in August 2019 found that DEC had made significant progress abating identified waste tire sites...

Local government 2019 Fiscal Stress Scores announced by New York State's Comptroller Thomas P. DiNapoli

Posted on September 25, 2020
Warning that the COVID-19 pandemic could push more local governments into serious fiscal stress, on September 24, 2020, New York State's Comptroller Thomas P. DiNapoli reported that twenty-two local governments* that were designated in fiscal stress for 2019...

Establishing regional step-down facilities to temporarily care for individuals who have been discharged from a hospital after receiving treatment for COVID-19

Posted on September 24, 2020
New York State Senator Sue Serino has introduced a bill, Senate 8996, that would require the New York State Health Department to submit a plan to establish regional step-down facilities to temporarily care for individuals who have been discharged from a hospital after receiving treatment for COVID-19, or any other sickness related to a pandemic, to a nursing home, adult care facility or assisted living residence where such individual would reside in safety...

Crediting service for certain benefits base on employment in another jurisdiction

Posted on September 23, 2020
In this CPLR article 78 proceeding, an employee of the City of New York [Plaintiff] sought judicial review of a New York City Department of Environmental Protection [DEP] determination that she was not entitled to leave-time credits based on her 17 years service with the City University of New York [CUNY]...

Certain teachers employed by the New York City Department of Education seek court order permitting them to "telework remotely"

Posted on September 21, 2020
A number of teachers [Petitioners] employed by the New York City Department of Education [DOE] initiated a CPLR 78 action seeking a court order permitting them to "telework remotely" rather then report to work in person. The Petitioners:(1) Challenged as arbitrary and capricious the July 15, 2020, DOE's remote teaching policy for the 2020-2021 school year issued in response to the Covid-19 pandemic; and(2) Sought a court order compelling DOE to allow Petitioners ?and all others similarly situated" to telework remotely on full salary or without loss of leave...

Termination for ordinary disability pursuant to §73 of the Civil Service Law

Posted on September 18, 2020
§73 of the Civil Service Law, "Separation for ordinary disability," in pertinent part provides that in the event an employee on leave for ordinary disability pursuant to §72 of the Civil Service Law has been continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the Worker's Compensation Law, "his employment status may be terminated and his position may be filled by a permanent appointment...

Attorney disciplined after pleading guilty to misprision of felony

Posted on September 17, 2020
Misprision of felony" originated in English common law and constitutes a crime  wherein an individual having knowledge that a felony has been committed fails to inform the appropriate authorities of that event. This Appellate Division decision reports that an attorney [Respondent] "pleaded guilty, in the United States District Court for the Western District of New York to misprision of a felony* in violation of 18 USC §4...

Freedom of Information Law Rulings

Posted on September 16, 2020
Summaries of selected Freedom of Information Law [FOIL] court and administrative rulings posted on New York Public Personnel Law Click on the text highlighted in color to access the text of the posting. A ?conclusory affidavit? by the custodian of the records that are the target of a FOIL request insufficient to trigger a FOIL ?statutory exception? A FOIL request seeking the names of a public retirement system?s retirees may be denied by the custodian of the records as exempt from disclosure A Freedom of Information demand may trump an agreement to keep some or all of the terms of a disciplinary action settlement "confidential" A Freedom of Information request for records concerning law enforcement operations may be denied A peer-review panel member?s evaluation of an individual may be withheld from disclosure pursuant to a FOIL request A police officer's personnel records are exempt from disclosure pursuant to the Freedom of Information Law during and after he or she leaves public service A state may deny access to records available to its citizens pursuant to its Freedom of Information Law to individuals not citizens of that state who make a FOIL request for such records Access to documents under FOIL limited Action for alleged defamation follows disclosure of document pursuant to a FOIL request  An agency may decline to acknowledge that requested records exist in response to a Freedom of Information Law request An attorney?s advice sent by one layperson to another layperson not an attorney-client communication subject to a FOIL exception An autopsy of a Freedom of Information request An entity claiming that it is not subject to the State?s Freedom of Information Law has the burden to provide documentary evidence that conclusively establishes such a defense as a matter of law An individual terminated pursuant to Civil Service Law §71 must be reinstated consistent with §71 once the individual has been found qualified to return to work by a medical officer selected by personnel department or civil service commission having jurisdiction Another FOIL Lesson: Be mindful of your audience Applying the exemption from releasing documents and records to the public pursuant to a FOIL request Attorney-Client privilege and e-mail communicationsCertain information contained in personnel records may be redacted in complying with a Freedom of Information request Certain personnel records are exempt from disclosure pursuant to Public Officers Law §87(2)(a) and Civil Rights Law §50-a even in a redacted form Challenging the denial of a Freedom of Information Law request on the representation that the records are exempt from disclosure Charging a fee for the cost of reviewing and redacting requested video footage sought pursuant to New York State's Freedom of Information Law Commissioner of Education does not have jurisdiction to resolve FOIL or Title IX appeals Complying with administrative procedural requirements prior initiating litigation seeking information pursuant to the Freedom of Information Law Conditioning the disclosure of material sought pursuant to a FOIL request upon the prepayment of costs authorized by statute Confidentiality of disciplinary records based on an agreement not to disclose their contents Confidentiality of police records Correspondence exchanged between public officers and agencies and private consultants are within the ambit of the Freedom of Information Law Court cites the ?principle of stare decisis? in affirming a custodian of public record?s denial of a Freedom of Information Law request Courts are to determine the appropriate balance between personal privacy and public interests in considering the appeal of a denial of a Freedom of Information [FOIL] request Custodian of a public record may decline to release pre-decision materials prepared to assist in final decision making being sought pursuant to a Freedom of Information request Decision highlights some essentials of the Freedom of Information Law Determining if a "non-governmental entity" is an "agency" within the meaning of the New York State's Freedom of Information Law and thus subject to its provisions Disclosing the unlisted telephone numbers called by public officials pursuant to a FOIL request Disclosure of public information or records to one is disclosure to all Disclosure of the terms of settlement agreements pursuant to a FOIL demand Disclosure of public records pursuant to the Freedom of Information Law Documents concerning an employee?s separation and post-termination employment benefits available under New York's Freedom of Information Law Documents containing information used to evaluate the performance of specified public employees are not subject to disclosure pursuant to a Freedom of Information request Duplicative FOIL requests E-mails between a public employer and an applicant for public employment may be subject to disclosure pursuant to the Freedom of Information Law Employee disciplined for alleged acts of misconduct that took place 20 years earlierEmployee organization may not rely of a FOIL request to obtain the names of charter school employees Entities subject to the Open Meetings Law and the Freedom of Information Law Exceptions to providing public records pursuant to New York State's Freedom of Information Law [FOIL] Expanding exemptions from FOIL to protect "technology assets used to maintain public information" FOIL amended Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law Failure of the custodian of a public record sought pursuant to a Freedom of Information Law request to respond to the request within the relevant time limit deemed a denial of the request Failure to respond to a request for documents sought pursuant New York State's Freedom of Information Law Filing a FOIL request for personnel records Footage at issue captured by a body-worn-camera held not a "personnel record" within the meaning of §50-a of the Civil Rights Law Freedom of information [FOIL] requests for information concerning health insurance plans Freedom of information and speechFreedom of Information in cases involving the termination of an employee ? an advisory opinion Freedom of Information requests Freedom of Law only applies to public entities Governor Cuomo signs Executive Order 8-149 providing for expediting the Freedom of Information Law appeals process Home addresses of State employees and retirees may be excluded from disclosure in response to a FOIL request If the custodian of a record demanded pursuant to the Freedom of Information Law refuses to provide the record, the custodian has the burden of showing that an exemption applies  Misconduct off-duty and FOIL Names of retired New York City police officers not available pursuant to a FOIL request Neglecting to advise a party of the availability of an administrative appeal defeats a failure to exhaust administrative remedies defense New York State's E-mail management and preservation policy New York?s Freedom of Information Law does not permit the custodian of the records to routinely charge for employee time spent searching for documents responsive to a FOIL request Objecting to producing certain documents demanded pursuant to a non-judicial subpoena duces tecum Obtaining police personnel records pursuant to a Freedom of Information Law [FOIL] demand Only a governmental not-for-profit corporation?s records is subject to FOIL Police agency's records concerning breath alcohol measurement instruments may be obtained pursuant to a Freedom of Information Law request Processing a Freedom of Information request Processing Freedom of Information Law requests for disciplinary records of law enforcement personnel involving "unsubstantiated and unfounded complaints against an officer" Providing the names and home addresses of employees of a private contractor to an employee organization to be determined by applying a ?balancing test? to avoid an "unwarranted invasion" of privacy Public Authority agrees to pay legal expenses incurred as a result of its not responding to a Freedom of Information request Public benefit corporations are subject to the Open Meetings Law and the Freedom of Information Law as long as they remain public benefit corporations Public employees personal E-mails exempt from disclosure from FOIL Source: Adjunct Law Prof Blog; http://lawprofessors...

Former Lake George Watershed Coalition Director sentenced to 8-24 years for stealing nearly $250,000 in state grant funds

Posted on September 15, 2020
On September 10, 2020, State Comptroller Thomas P. DiNapoli and Warren County District Attorney Jason Carusone announced that David Decker, former director of the Lake George Watershed Coalition,* was sentenced to 8-24 years in prison by the Warren County Court after a jury convicted him of 6 felonies, including grand larceny in the second degree, scheme to defraud in the first degree and four counts of offering a false instrument for filing in the first degree, related to his diversion of federal and state grant funds meant to improve the area surrounding Lake George...

Reporting on-the-job misbehavior

Posted on September 14, 2020
A computer "application" - #NotMe - provides employers with a tool that permits employees to make timely submission of complaints of alleged supervisor or co-worker misconduct to personnel officers, human resource teams, compliance officers or designated individuals...

AELE Discipline and Internal Affairs Seminar begins on September 28, 2020

Posted on September 14, 2020
Discipline and proper and thorough internal investigations involving law enforcement personnel has taken on a critical importance not only in society, but also in the court room. This AELE seminar is intended to provide up-to-date legal and other critical information for conducting Internal Affairs investigations and for administering discipline, focusing on providing law enforcement agencies with "solutions" to the issues and demands facing today's internal affairs investigators and administrators...

Workplace Harassment Webinar: Updates to the Law and Investigation Techniques

Posted on September 14, 2020
This complimentary webinar, Workplace Harassment: Updates to the Law and  Investigation Techniques, is scheduled for  Wednesday, September 23, 2020, 8:00 a.m. to 10:00 a.m. EST, and replaces the originally scheduled iteration of Harris Beach's in-person Labor Seminar Series...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.