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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

Testimony by the appointing authority in a disciplinary action

Posted on October 21, 2010
Testimony by the appointing authority in a disciplinary actionDiMattina v LaBua, 262 AD2d 409One of the issues considered by the Appellate Division in the DiMattina case appeal concerned the fact that the appointing authority both preferred the charges filed against Thomas J...

Documents concerning an employee?s separation and post-termination employment benefits available under New York's Freedom of Information Law

Posted on October 20, 2010
Documents concerning an employee?s separation and post-termination employment benefits available under New York's Freedom of Information LawWilliam E. Hamilton submitted a Freedom of Information Law (FOIL) request seeking documentation concerning "the modification, amendment and/or termination of the employment agreement" between the Jordan-Elbridge Central School District and its superintendent, Marilyn Dominick, as well as any document relating to the termination of Dominick's employment with the district and any post-termination employment benefits...

Although an employer is required to provide a disabled individual with a reasonable workplace accommodation, commuting to work is not job-related

Posted on October 20, 2010
Although an employer is required to provide a disabled individual with a reasonable workplace accommodation, commuting to work is not job-relatedRobin DiNatale initiated a proceeding pursuant to Executive Law §298 seeking to annul the determination by the New York State Division of Human Rights that she failed to establish that her employer, the New York State Insurance Fund, discriminated against her by refusing to accommodate her disability when it declined to permit her to work from her home...

Who is the employer?

Posted on October 20, 2010
Who is the employer?Who was the employer who fired Floral Park Public Library part-time library clerk Barbara Beers: the Village of Floral Park or the Floral Park Public Library? Such a simple question is not as easy to answer as one might expect.Barbara Beers was terminated from her position as a part-time clerk by the Floral Park Public Library...

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Individual appointed to a public office does not have a right to reappointment to such public office after the individual?s term of office expires

Posted on October 20, 2010
Individual appointed to a public office does not have a right to reappointment to such public office after the individual?s term of office expiresGupta v Town of Brighton, 2nd Cir., 182 F.3d 899Is an individual entitled to be reappointed to public office upon the completion of his or her term? The Gupta decision demonstrates that the individual must be able to prove that he or she had a constitutional right to be continued in the office to prevail...

Rescinding a letter of resignation

Posted on October 20, 2010
Rescinding a letter of resignationGrogan v Holland Patent CSD, App. Div., 4th Dept., 262 AD2d 1009, motion for leave to appeal denied, 94 NY2d 756Where Civil Service rules so provide, a resignation may not be withdrawn without the consent of the appointing authority...

Policy-maker's terminated after spouse sues State alleges violation of a Constitutional right to associate with others in intimate relationships

Posted on October 20, 2010
Policy-maker's terminated after spouse sues State alleges violation of a Constitutional right to associate with others in intimate relationshipsAdler v Pataki, 2nd Circ., 185 F.3d 35Although the Second Circuit U.S. Court of Appeals has allowed a public employer to terminate a ?policy-maker? solely for reasons of patronage, the Adler decision indicates that there is at least one possible exception to this general rule -- when the termination is alleged to involve ?mixed-motives...

Probationary termination

Posted on October 20, 2010
Probationary terminationGreen v Board of Education, 263 AD2d 385Verna Green, a New York City probationary teacher, was terminated from her position. She sued, seeking reinstatement to her former position.The Appellate Division sustained a lower court?s dismissal of Green?s petition...

Means used to place candidates with tied scores on eligible list may impact on seniority for the purposes of layoff

Posted on October 20, 2010
Means used to place candidates with tied scores on eligible list may impact on seniority for the purposes of layoffFiffe v Cohoes Civil Service Comm., 262 AD2d 762, Motion for leave to appeal denied, 93 NY2d 819Thomas Fiffe was one of seven candidates appointed to firefighter positions in Cohoes, all effective July 25, 1994...

Union president required to comply with a county ethics commission subpoena concerning union's employment of former county worker

Posted on October 19, 2010
Union president required to comply with a county ethics commission subpoena concerning union's employment of former county workerThe Suffolk County Ethics Commission issued subpoena* to compel Cheryl A. Felice, the President of a Suffolk County municipal employees union, to appear before it and give testimony relative to its investigation of services provided by a former county employee to the union on or after December of 2007...

Neglecting to advise a party of the availability of an administrative appeal defeats a failure to exhaust administrative remedies defense

Posted on October 19, 2010
Neglecting to advise a party of the availability of an administrative appeal defeats a failure to exhaust administrative remedies defenseJulie Purcell initiated an Article 78 proceeding in an effort to compel the Jefferson County District Attorney to comply with her request pursuant to the Freedom of Information Law ([FOIL] Public Officers Law art 6) for documents relating to a criminal matter in which she was the complainant...

Terminated individual must repay salary received while his appeal was pending arbitration

Posted on October 19, 2010
Terminated individual must repay salary received while his appeal was pending arbitrationRensselaer County v Hudson Valley Community College Faculty Association, Appellate Division, Third Dept., 262 AD2d 843, Motion for leave to appeal denied, 4 NY2d 753In the Hudson Valley case, the Appellate Division decided that an arbitrator had the power to require a faculty member to repay the college for the salary it had paid to him while an appeal of his dismissal was pending arbitration...

Individuals may be disqualified for employment because of misrepresentations in employment application

Posted on October 19, 2010
Individuals may be disqualified for employment because of misrepresentations in employment applicationMartin v Marchiselli, 262 AD2d 171Section 50.4 of the Civil Service Law authorizes the state department of civil service or the responsible civil service commission to disqualify and terminate an applicant or an employee if he or she has materially misrepresented his or her qualifications on the application form...

Absence due to incarceration

Posted on October 19, 2010
Absence due to incarcerationKarp v Comm. of Labor, App. Div., 3rd Dept., 262 AD2d 925Matyjczuk v Delphi Automotive Sys., App. Div., 3rd Dept., 262 AD2d 847Sometimes an employee cannot report to work because he or she is in jail. May the employee be terminated because of his or her inability to report to work because the incarceration? How far must the employer go to ?accommodate? the employee?s incarceration? If terminated because of the incarceration, is the employee eligible for unemployment insurance benefits? These are some of the questions considered by the Appellate Division in the Karp and Matyjczuk cases...

Effective date of appointment

Posted on October 19, 2010
Effective date of appointmentChallandes v Shew, Supreme Ct., Westchester Co., [not officially reported]Which one of the following best describes when the appointment of an individual in the classified service is binding on the appointing authority? a...

Are school counselors teachers?

Posted on October 19, 2010
Are school counselors teachers?North Tonawanda CSD v Mills, App. Div. 3rd Dept., 263 AD2d 574, Motion for leave to appeal denied, 94 NY2d 751Teachers have many rights and entitlements under the Education Law. Should school counselors and social workers be considered teachers when determining their rights and benefits? Generally, the answer is no, as the North Tonawanda case shows...

School district may reassign an educator to a different location in the district and assign new duties consistent with his or her tenure area

Posted on October 18, 2010
School district may reassign an educator to a different location in the district and assign new duties consistent with his or her tenure areaRoberta-Michele Jodre v Board of Education of the Locust Valley Central School District, Decisions of the Commissioner of Education, Decision #16,162Roberta-Michele Jodre, a tenured director of guidance services for grades kindergarten through 12...

Disciplinary charges filed against employee alleging refusing a post assignment

Posted on October 18, 2010
Disciplinary charges filed against employee alleging refusing a post assignmentNYC Department of Corrections v Callabrass, OATH Index #1981/10The New York City Department of Corrections filed disciplinary charges against NYC Corrections Officer Regina Callabrass alleging that she had disobeyed an order to take a post assignment, abandoned her post while on duty and made a false logbook entry...

Excessive absenteeism could result in dismissal from service

Posted on October 18, 2010
Excessive absenteeism could result in dismissal from serviceFischer v Smithtown CSD, 262 AD2d 560A Section 3020-a arbitrator found Joan Fischer guilty of charges filed against her by the Smithtown Central School District alleging neglect of duty and incompetence based on her ?excessive absenteeism...

Exhausting the administrative remedy

Posted on October 18, 2010
Exhausting the administrative remedyCiccone v Jacobson, App. Div., First Dept., 262 AD2d 78Before a public employee may sue his or her employer, he or she generally must have exhausted all forms of ?administrative remedy? at the individual?s disposal...

Free Speech protections for public employees

Posted on October 18, 2010
Free Speech protections for public employeesFry v McCall, USDC SDNY, 945 F. Supp. 655In the Fry case, a federal district court judge was asked to determine if a public official?s statements concerning matters alleged to be of ?public concern? served as a shield against his or her removal from the position...

Hearing officer may not the attorney of a party to draft findings of fact and determination to the attorney of a party in the proceeding

Posted on October 18, 2010
Hearing officer may not the attorney of a party to draft findings of fact and determination to the attorney of a party in the proceeding LePore v McCall, 262 AD2d 919This decision illustrates the fact that a hearing officer is responsible for making findings of fact and conclusions of law necessary to support his or her determination and recommendation...

Doctrine of collateral estoppel may bar making of new findings of fact in an administrative hearing

Posted on October 18, 2010
Doctrine of collateral estoppel may bar making of new findings of fact in an administrative hearingFoster v Commissioner of Labor, 262 AD2d 899The Carthage Central School District dismissed Sharon Foster after a Section 75 disciplinary hearing officer found her guilty of misconduct in the operation of her school bus...

A demand to submit a grievance to arbitration is subject to a ?two-prong test"

Posted on October 15, 2010
A demand to submit a grievance to arbitration is subject to a ?two-prong test"Matter of Board of Educ. of Deer Park Union Free School Dist. v Deer Park Teachers' Assn., 2010 NY Slip Op 07338, Decided on October 12, 2010, Appellate Division, Second DepartmentRegina Moraitis was appointed to the position of Computer Teacher and subsequently she was awarded tenure in that area...

Liability for line of duty injuries

Posted on October 15, 2010
Liability for line of duty injuriesGonzalez v Iocovello, Appellate Division, 249 AD2d 143, Ct. of Appeals, 93 NY2d 539 The so-called ?firefighter?s rule? refers to the strict limits that the courts have placed on the ability of police officers and firefighters to sue co-workers or others for injuries suffered in the line of duty, even if negligence was involved...

Rating the oral test performance by applicants in a civil service examination to be based on objective standards

Posted on October 15, 2010
Rating the oral test performance by applicants in a civil service examination to be based on objective standardsMerlino v Schneider, Ct. of Appeals, 93 NY2d 477Oral tests are sometimes included as part of the examination for appointment and promotion in the public service...

Overtime and the Fair Labor Standards Act

Posted on October 15, 2010
Overtime and the Fair Labor Standards ActAlden v Maine, US Supreme Court, 527 U.S. 706The question of the enforceability of the Fair Labor Standards Act?s [FLSA] mandates concerning overtime with respect to employees in the public service, especially those engaged in law enforcement and firefighting, has been an issue for a number of years...

The employee organization's duty of fair representation

Posted on October 15, 2010
The employee organization's duty of fair representationPietraszewski and CSEA Local 1000, 32 PERB 3019Does a union?s duty of fair representation require it to provide assistance -- financial or legal -- simply because a unit member wishes to file a lawsuit against his or her employer? This was the significant question raised by Arthur Pietraszewski, Jr...

Accidental disability retirement

Posted on October 15, 2010
Accidental disability retirementBloom v City of New York, NYS Supreme Court, 7/99, Justice Braun [Not selected for publication in the Official Reports]Bloom, a guidance counselor for the New York City School District, filed a grievance contending that she was disabled as a result of her inhaling toxic substances that arose from construction, repairs, and renovation of her school...

Union sued for negligence for allegedly providing misinformation concerning retirement benefits

Posted on October 15, 2010
Union sued for negligence for allegedly providing misinformation concerning retirement benefitsGrahame v Rochester Teachers Association, 262 AD2d 963, motion to appeal dismissed, 94 NY2d 796May a union be sued for alleged negligence with respect to information it provided to a member? This was the question presented by Harriet E...

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