Labor & Employment Law

Judicial review of a disciplinary action

Posted on January 04, 2011
Judicial review of a disciplinary actionHorgan v Safir, 273 AD2d 135; Motion for leave to appeal denied, 95 NY2d 765A court?s review of an administrative decision following a hearing is significantly more limited than would be the case when a higher court considers an appeal from a trial court?s ruling...

Political tests for appointment to the public service in New York State

Posted on January 03, 2011
Political tests for appointment to the public service in New York StateNYPPL trivia ? January 2011Subdivision 1 of §107 of the Civil Service Law essentially prohibits ?Recommendations based on political affiliations.? Subdivision 1, in pertinent part, provides that ?No recommendation or question under the authority of [the Civil Service Law] shall relate to the political opinions or affiliations of any person whatever; and no appointment or selection to or removal from an office or employment within the scope of [the Civil Service Law] or the rules established thereunder, shall be in any manner affected or influenced by such opinions or affiliations...

Failure to satisfy all the procedural mandates when filing an appeal with the Commissioner of Education is a fatal defect

Posted on January 03, 2011
Failure to satisfy all the procedural mandates when filing an appeal with the Commissioner of Education is a fatal defectAppeal of Greg Johnston v the Board of Education of the Manhasset Union Free School District, Decisions of the Commissioner of Education, Decision No...

State government policy makers not covered by Age Discrimination in Employment Act [ADEA]

Posted on January 03, 2011
State government policy makers not covered by Age Discrimination in Employment Act [ADEA]Source: Findlaw.Com Weekly Labor & Employment Law Newsletter, December 27-31, 2010Opp v. Office of the State's Attorney of Cook County, No. 09-3714 - United States Seventh Circuit, 12/29/2010?In former assistant state's attorneys' suit against the county state's attorney, claiming unlawful employment termination in violation of the Age Discrimination in Employment Act (ADEA), district court's grant of defendants' motions to dismiss in ruling that the plaintiffs were excluded from the ADEA's coverage because they held policymaking positions as a matter of law, is affirmed where:1) district court's determination as a matter of law of the policymaking status of the plaintiffs' positions was proper because the plaintiffs' positions as assistant state's attorneys gave them inherent policymaking authority, and the plaintiffs' roles as assistant state attorneys were clearly defined by statute; and2) plaintiffs' argument that they were not appointed by the state's attorney and thus cannot be considered "appointees" on the policymaking level is without merit...

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Evaluating the credibility of a witness in a disciplinary action

Posted on January 03, 2011
Evaluating the credibility of a witness in a disciplinary actionJackson v McMahon, 275 AD2d 546The Appellate Division upheld the disciplinary determinations and penalties imposed by the Commissioner of State Police on four troopers who were found guilty of misconduct and neglect of duty after being found sleeping in their patrol cars while on duty at about 3:30 in the morning...

Decertification of a union sought by dissatisfied unit member

Posted on January 03, 2011
Decertification of a union sought by dissatisfied unit memberMatter of Seneca Fall Support Staff Association, 33 PERB 3028.A number of unit members dissatisfied with the representation provided by the existing collective bargaining agent, CSEA, formed the Seneca Falls Support Staff Organization [SFSSO]...

Leading by example, Governor Andrew M. Cuomo will return five percent of his statutory compensation of $179,000 to the State

Posted on January 03, 2011
Leading by example, Governor Andrew M. Cuomo will return five percent of his statutory compensation of $179,000 to the StateSource: Office of the GovernorGovernor Andrew M. Cuomo today announced that he will reduce his salary by five percent. The salary for the Governor, $179,000, is set by state law and has not changed since 1999...

Special Education Cases under the IDEA and §504 of the A.D.A. - Year 2010 in Review

Posted on December 31, 2010
Special Education Cases under the IDEA and §504 of the A.D.A. - Year 2010 in ReviewSource: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/ Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St...

Dismissal recommend after employee is found guilty of off-duty misconduct that violated employer?s rules

Posted on December 31, 2010
Dismissal recommend after employee is found guilty of off-duty misconduct that violated employer?s rulesOATH Administrative Law Judge Alessandra Zorgniotti recommended that Sheron Dixon, a New York City probation officer charged and found guilty of being arrested in violation of Department rules, using profanity towards police officers, resisting arrest, spitting upon a police officer, and failing to notify the Department of her arrest and conviction of disorderly conduct, be terminated...

Unilateral changes in health insurance

Posted on December 31, 2010
Unilateral changes in health insuranceCivil Service Employees Association v PERB, 274 AD2d 930Since 1990, Dutchess County employees represented by CSEA were offered a prescription drug plan for negotiating unit members enrolled in the Mohawk Valley Physicians? Health Plan [MVP] that provided for employee co-payments of $3 for generic prescriptions and $5 for brand name drugs...

Failure to exhaust administrative remedy bars appeal to the courts

Posted on December 31, 2010
Failure to exhaust administrative remedy bars appeal to the courtsMatter of Sands v City of Rochester, 38 A.D.3d 1174Sands filed an application for medical and disability benefits. When his application was rejected, Sands filed an administrative appeal from that determination...

Arbitrator?s award must be confirmed if not completely irrational

Posted on December 31, 2010
Arbitrator?s award must be confirmed if not completely irrationalMatter of Rochester City School Dist. v Rochester Teachers Assn., 38 AD3d 1152Supreme Court, Monroe County, Judge William P. Polito, confirmed an arbitration award in favor of the Rochester Teachers Association, rejecting the School District?s motion to vacate the award...

Police officer?s September 11 line of duty injury claim rejected

Posted on December 31, 2010
Police officer?s September 11 line of duty injury claim rejectedMatter of Teran v Kelly, 2007 NY Slip Op 30009(U), March 1, 2007, Supreme Court, New York County, Docket Number: 0109358, Judge: Marcy S. Friedman [Not selected for inclusion in the Official Reports]Teran, a New York City police officer, was performing routine police duties while the City was undergoing a citywide emergency as a result of the September 11, 2001 attacks on the World Trade Center...

Compulsory arbitration demand

Posted on December 31, 2010
Compulsory arbitration demandMatter of City of Poughkeepsie, 33 PERB 3029In the course of collective bargaining the Poughkeepsie Professional Firefighters Association demanded de novo binding arbitration pursuant to PERB?s Voluntary Dispute Resolution Procedure [VDR] to resolve disagreements involving the granting and terminating benefits provided by the City of Poughkeepsie pursuant to Section 207-a of the General Municipal Law...

A court's review of a disciplinary arbitration award is limited and does not encompass consideration of the merits of the award or the penalty imposed

Posted on December 30, 2010
A court's review of a disciplinary arbitration award is limited and does not encompass consideration of the merits of the award or the penalty imposedMatter of State of New York v Civil Serv. Employees Assn., Inc., 2010 NY Slip Op 09330, Appellate Division, Third DepartmentDavid H...

Seniority in a tenure area and the ?40% rule?

Posted on December 30, 2010
Seniority in a tenure area and the ?40% rule?Appeal Of Kathi Gimbrone and the Board Of Education, Randolph Central School District, decisions of the Commissioner of Education, Decision No. 16,177Kathi Gimbrone challenged various actions of the Board of Education of the Randolph Central School District to terminate her employment after being notified that her reading teacher position was abolished that she would be placed on a preferred eligibility list for reappointment to a position in the reading tenure area...

An employee organization's duty of fair representation

Posted on December 30, 2010
An employee organization's duty of fair representationAgosto v Correctional Services Benevolent Association, USDC SDNY, 107 F.Supp.2d 294Blaca Agosto, a New York City corrections officer, filed a complaint with the deputy warden of the facility alleging that another guard had shown her sexually explicit photographs of another female corrections officer and then asked her to pose with him as well...

Confidentiality of e-mail

Posted on December 30, 2010
Confidentiality of e-mailFootnotes on E-mailsIn recent years numerous requests and warnings have been included at the foot of e-mails such as ?Please let us know if you are not the intended receiver of this e-mail? or ?CONFIDENTIAL ? this is privileged correspondence ? please destroy if you are not the individual for whom it is intended,? etc...

Vacating an arbitrator?s award

Posted on December 30, 2010
Vacating an arbitrator?s awardState Nurses Association v Mount Sinai Hospital, 275 AD2d 538 The Appellate Division, Third Department?s ruling in the State Nurses Association case provides a reminder of the guidelines used by the courts when considering a motion to vacate an arbitration award...

Employees alleging that they were required to perform out-of-title work must show they perform the minimum baseline requirements of the title

Posted on December 29, 2010
Employees alleging that they were required to perform out-of-title work must show they perform the minimum baseline requirements of the titleMatter of Brynien v Governor's Off. of Empl. Relations, 2010 NY Slip Op 09329, Appellate Division, Third DepartmentKenneth Brynien, as President of the New York State Public Employees Federation, filed out-of-title grievances with Office of Mental Health (hereinafter OMH), challenging the full-time assignments of the employees to perform duties at two OMH facilities where they were employed...

Failure of employee to provide a urine sample within the time limits set by federal regulations deemed a refusal to submit to the drug test

Posted on December 29, 2010
Failure of employee to provide a urine sample within the time limits set by federal regulations deemed a refusal to submit to the drug testNYC Department of Sanitation v C.L.*, OATH Index #760/11The New York City Department of Sanitation requires employees who are holders of commercial drivers' licenses to submit to random drug testing...

Criticism of employee performance serving pursuant to a contract with a private entity

Posted on December 29, 2010
Criticism of employee performance serving pursuant to a contract with a private entityBrackman v City of New York, Supreme Court, [Not selected for publication in the Official Reports]If a public employee does not have tenure, he or she may be dismissed at any time, for any reason, or for no reason, provided that the termination does not otherwise constitute an unlawful act on the part of the public employer...

Determining membership in a negotiating unit for the purposes of collective bargaining

Posted on December 29, 2010
Determining membership in a negotiating unit for the purposes of collective bargainingRockland County v Federation of Teachers Local 1817, 275 AD2d 413Clearly the incumbents of positions in the negotiating unit are covered by collective bargaining contracts negotiated pursuant to the Taylor Law...

New York City Civil Service Commission?s ruling applicant qualified controls

Posted on December 29, 2010
New York City Civil Service Commission?s ruling applicant qualified controlsCity of New York v Civil Service Commission, Supreme Court, New York County, Docket Number: 0401706 [Not selected for publication in the Official Reports]The New York Policy Department (NYPD) challenged a determination by the New York City Civil Service Commission holding that Hope Mahoney was qualified for appointment to the position of police officer with the Department...

Public Personnel Administrators invited to join iZoca, a free service on the Internet to exchange information and ideas

Posted on December 28, 2010
Public Personnel Administrators invited to join iZoca, a free service on the Internet to exchange information and ideasPersonnel administrators and other professionals serving with State and municipal departments and agencies interested in exchanging ideas and in discussing selected court and administrative decisions and related matters affecting public employers and employees in New York State are invited to become members of iZoca* and join the Public Personnel Administrators group...

Court sustains Commissioner of Education?s determination suspending educator?s certification for one year after finding he lacked good moral character

Posted on December 28, 2010
Court sustains Commissioner of Education?s determination suspending educator?s certification for one year after finding he lacked good moral characterMatter of Mudge v Huxley, 2010 NY Slip Op 09311, Decided on December 16, 2010, Appellate Division, Third DepartmentRandy Mudge, a certified as a teacher and school administrator, requested a hearing in response to a notice from the State Department of Education that a substantial question existed with respect to his moral character...

Reinstatement of a former employee permitted notwithstanding the availability of an eligible list for appointment to the vacancy

Posted on December 28, 2010
Reinstatement of a former employee permitted notwithstanding the availability of an eligible list for appointment to the vacancyMatter of O'Connor v New York State Civ. Serv. Commn., 2010 NY Slip Op 09324, Appellate Division, Third Department,After posting a vacancy for the position of Supervising Hearing Officer [SHO], the Office of Temporary Disability and Assistance [OTDA] elected to reinstate Frank Gottlieb, a recently retired former SHO at OTDA...

Statute of limitations - duty of fair representation

Posted on December 28, 2010
Statute of limitations - duty of fair representationMatter of Mankowski, 33 PERB 3032Daniel M. Mankowski charged that the Public Employees Federation [PEF] violated it duty of fair representation when it failed to represent him in certain grievances he filed against his former employer, the State of New York...

Determining the minimum period of probation

Posted on December 28, 2010
Determining the minimum period of probationChallandes v Shew, 275 A.D.2d 369In most cases a permanent appointment to a position in the classified service is subject to a probationary period. Typically the probationary period is set in terms of a minimum period and a maximum period...

Applicant rejected after being found overqualified for appointment to the position

Posted on December 28, 2010
Applicant rejected after being found overqualified for appointment to the positionCity of New London v Harrigan, CA2*May an individual be so overqualified for the position so as to justify his or her being rejected for an appointment to the title? This was the issue raised in the Harrigan, a case decided by the US Circuit Court of Appeals, Second Circuit on August 23, 2000...

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