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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

Co-workers guilty of less egregious policy violations are not "similarly situated" to plaintiff

Posted on September 30, 2010
Co-workers guilty of less egregious policy violations are not "similarly situated" to plaintiffSource: Kelley Drye & Warren LLP, by Michael E. Rigney, Esq.Katherine Weber had been employed at Universities Research Association (URA) for almost twenty years when she received a negative performance review...

Determining if there is a basis for disciplinary charges

Posted on September 30, 2010
Determining if there is a basis for disciplinary chargesWaters v Fire Commissioners, Supreme Court, [Not selected for publication in the Official Reports]The Waters case concerned a rather rare issue: whether or not the activities underlying disciplinary action provide any basis for bring disciplinary action against an individual...

Equal pay for jobs the performance of which requires equal skill, effort, and responsibility

Posted on September 30, 2010
Equal pay for jobs the performance of which requires equal skill, effort, and responsibilityBelfi v Long Island Railroad, 2nd Cir., 191 F.3d 129The Equal Pay Act [EPA] prohibits employers from discriminating among employees on the basis of gender by paying higher wages to employees of the opposite sex for ?equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions [29 USC...

Filing for accidental disability retirement

Posted on September 30, 2010
Filing for accidental disability retirementSukup v McCall, App. Div., Third Dept., 264 AD2d 921The Sukup case illustrates the importance of filing a timely application for accidental disability retirement benefits. Simply put, if the individual, or his or her representative, fails to file the application in time, the application for such benefits will be rejected...

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Past practices and the Taylor Law

Posted on September 30, 2010
Past practices and the Taylor LawWalden PBA v PERB, 263 AD2d 885The Walden PBA filed an improper practice charge with PERB claiming that the Village of Walden had failed to negotiate in good faith in violation of Section 209-a(1)(d) of the Civil Service Law...

Court approves county personnel officer?s payroll decertification of individuals not employed in accordance with the Civil Service Law

Posted on September 30, 2010
Court approves county personnel officer?s payroll decertification of individuals not employed in accordance with the Civil Service LawNorth Greenbush v Director of Personnel, Supreme Court, [Not selected for publication in the Official Reports]Section 100 of the Civil Service Law requires the responsible civil service commission to periodically certify the payroll of all of the public entities under its jurisdiction...

Appointing authority has discretion to reject a former employee's request seeking reinstatement to his or her former position

Posted on September 29, 2010
Appointing authority has discretion to reject a former employee's request seeking reinstatement to his or her former positionSilberzweig v Doherty, 2010 NY Slip Op 06709, Decided on September 28, 2010, Appellate Division, First DepartmentMatthew Silberzweig, a sanitation worker with the New York City Department of Sanitation [DOS] was terminated after he had failed to contact DOS concerning his being absent from work without approval...

The doctrine of res judicata held to bar litigation of employee?s challenge to termination in federal court follow dismissal of State lawsuit

Posted on September 29, 2010
The doctrine of res judicata held to bar litigation of employee?s challenge to termination in federal court follow dismissal of State lawsuitSheffield v Sheriff of the Rockland County Sheriffs Department, 08-0840-cv (2nd Cir. 9-22-2010)Malinda Sheffield was terminated from her employment following a disciplinary proceeding in which the arbitrator found that Sheffield had filed a false workers? compensation claim and recommended her dismissal...

IRS private letter ruling advises university?s that its tuition reduction plan available certain employees and their dependents is non-discriminatory

Posted on September 29, 2010
IRS private letter ruling advises university?s that its tuition reduction plan available certain employees and their dependents is non-discriminatorySource: Hogan Lovells [Posted September 20, 2010 by attorneys Kurt L.P. Lawson, Christian Chandler, Margaret de Lisser, William L...

Ex parte communications by the hearing officer not permitted while he or she is preparing the final determination in an administrative proceeding

Posted on September 29, 2010
Ex parte communications by the hearing officer not permitted while he or she is preparing the final determination in an administrative proceedingMeislahn v McCall, App. Div., Third Dept., 264 AD2d 957The lesson of the Meislahn decision: a hearing officer may not have ex parte* dealings with litigants in an administrative hearing...

Lawsuit challenging reassignment to another position rule moot because employee retired before trial

Posted on September 29, 2010
Lawsuit challenging reassignment to another position rule moot because employee retired before trialCannon v Watervliet, App. Div., Third Dept., 263 AD2d 920, Motion for leave to appeal denied, 94 NY2d 756The City of Watervliet reassigned John Cannon from the position of investigator to the uniform patrol division...

Refusing a light duty assignment

Posted on September 29, 2010
Refusing a light duty assignmentKorczyk v City of Albany, 264 AD2d 908The Appellate Division?s ruling in the Korczyk case cautions that public employees injured in the line of duty may be required by their employer to accept light duty assignments if medically able to do so or risk losing their workers? compensation benefits...

A prisoner while assigned to a work crew is not an employee

Posted on September 29, 2010
A prisoner while assigned to a work crew is not an employeeRichel v Village of Angola, Fourth Dept., 265 AD2d 864Joseph Richel, an inmate at the Gowanda Correctional Facility, was injured in a fall from a scaffold while assigned to a work crew that was spray-painting a building owned by the Village of Angola...

Niagara Frontier Transportation Authority (NFTA) police officers alleged to have participated in a ?double dipping? scheme

Posted on September 28, 2010
Niagara Frontier Transportation Authority (NFTA) police officers alleged to have participated in a ?double dipping? schemeSource: Office of the State ComptrollerAn audit report released on September 27, 2010 by State Comptroller Thomas P. DiNapoli's Division of State Government Accountability alleges that ?Numerous Niagara Frontier Transportation Authority (NFTA) police officers systematically abandoned their assigned duty posts to go to work at other jobs while being paid by the authority, a practice that was condoned and participated in by high-ranking officers...

CPLR Article 75 petitioner has the burden of demonstrating the arbitrator?s alleged misconduct, bias, excess of power, or procedural defects

Posted on September 28, 2010
CPLR Article 75 petitioner has the burden of demonstrating the arbitrator?s alleged misconduct, bias, excess of power, or procedural defectsMatter of Blythe v New York City Bd./Dept. of Educ. 2010 NY Slip Op 32592(U)September 20, 2010, Sup Ct, NY County, Judge Cynthia S...

Equitable estoppel and the FMLA

Posted on September 28, 2010
Equitable estoppel and the FMLASource: Caroline Westover, Esq. of Bond Schoeneck & KingA recent decision by the United States Court of Appeals for the Eighth Circuit raises an interesting issue: can an employer be held liable for interference with FMLA rights if it discharges an employee after giving the employee reason to believe FMLA leave has been approved -- even if the employee is not in fact entitled to FMLA leave?Ms...

Tape recording public meetings

Posted on September 28, 2010
Tape recording public meetingsSchuldiner v City Univ. of NY, NYS Sup. Ct., Index No. 8236/98, [Not selected for publication in the Official Reports; referred to in Perez v City University of New York, 195 Misc.2d 16]Sometime an individual may appear at a public hearing, tape recorder in hand...

Use of video tapes in evaluating disability claims

Posted on September 28, 2010
Use of video tapes in evaluating disability claimsAprea v Sonn, NYS Supreme Court [Not selected for publication in the Official Reports]If an employer suspects that an individual receiving Workers? Compensation benefits or benefits pursuant to Section 207-a or Section 207-c of the General Municipal Law is malingering, it may decide to arrange for the surveillance of the individual and make video tapes of the individual?s activities...

Do teachers have a "one-slap" rule?

Posted on September 28, 2010
Do teachers have a "one-slap" rule?Source: ICEUFT Blog [ http://iceuftblog.blogspot.com/ ]Termination reversals after 3020-a hearings are extremely rare, but given the right circumstances and a "hanging" arbitrator and you just might get your case reversed...

Removing an individual's name from the preferred list

Posted on September 28, 2010
Removing an individual's name from the preferred listDonato v Plainview-Old Bethpage CSD, 264 AD2d 843Removing a teacher from a preferred list always holds the potential for litigation. In the Donato case, the New York State Supreme Court ruled that Linda Donato could not sue the Plainview-Old Bethpage Central School District for removing her from a preferred list, only to be reversed by the Appellate Division...

Representation and indemnification of public officers and employees sued in connection with official duties

Posted on September 28, 2010
Representation and indemnification of public officers and employees sued in connection with official dutiesTarrant v Schenectady Police Dept., Supreme Court, [Not selected for publication in the Official Reports, see, also, Tarrant v. City of Schenectady, 279 AD2d 870]A public officer?s or employee?s right to ?employer provided? representation and indemnification in the event he or she is sued and held liable in connection with the performance of official duties is an important one...

Signing an agreement "not to sue" at the time of resignation enforceable unless found to be coerced

Posted on September 28, 2010
Signing an agreement "not to sue" at the time of resignation enforceable unless found to be coercedSutherland v Town of Huntington, CA2, #98-9259In exchange for certain benefits, Patricia Sutherland submitted her resignation and signed a ?release agreement...

Alleged CBA violation must be submitted to arbitration unless both prongs of the two-prong test governing arbitrability of disputes are satisfied

Posted on September 27, 2010
Alleged CBA violation must be submitted to arbitration unless both prongs of the two-prong test governing arbitrability of disputes are satisfiedMatter of County of Orange v Civil Serv. Employees Assn. Local 1000 AFSCME, 2010 NY Slip Op 51647(U), Decided on September 22, 2010, Judge Jeffrey A...

All about New York State?s Taylor Law

Posted on September 27, 2010
All about New York State?s Taylor LawSummary of Taylor Law basicsPosted on the Internet is John M. Crotty?s Introduction to the Taylor Law.Mr. Crotty, an attorney and arbitrator, explains the key elements of the Taylor Law and its application and administration, its history, collective bargaining under its provisions and a number of landmark PERB and court rulings interpreting its provision...

Concerning the duty of a public employer to defend and indemnify its employees being sued for alleged violations of an individual?s civil rights

Posted on September 27, 2010
Concerning the duty of a public employer to defend and indemnify its employees being sued for alleged violations of an individual?s civil rightsSchenectady PBA v City of Schenectady, [Not selected for publication in the Official Reports*]Schenectady police officers were being sued in federal district court for alleged civil rights violations...

Disciplinary probation may result in summary termination of probationer

Posted on September 27, 2010
Disciplinary probation may result in summary termination of probationerWilson v Bratton, 266 AD2d 140An individual placed in ?disciplinary probation? status is typically subject termination without any further hearing or due process procedures if he or she violates the term of the probation...

Employee seeks a hearing after being denied a promotion

Posted on September 27, 2010
Employee seeks a hearing after being denied a promotionWagner v NYC Transit Authority, 266 AD2d 304The New York City Transit Authority [NYCTA] decided that Robert Wagner should not be promoted to the position of dispatcher because of his poor attendance record with the Authority...

Arbitrating a contract grievance

Posted on September 27, 2010
Arbitrating a contract grievanceGreenburgh 11 UFSD v Local 1532, 266 AD2d 213The collective bargaining agreement between Local 1532 and Greenburgh 11 provided that after a teacher was late nine times for less than 20 minutes per lateness, the district would have a meeting with the employee and a union representative...

Information contained in personnel record alleged to be defamatory

Posted on September 27, 2010
Information contained in personnel record alleged to be defamatoryMonroe v Schenectady County, 266 AD2d 792Sometimes an employee will contend that information contained in his or her personnel files is derogatory. May the individual sue the agency if the information is made available to other governmental officials? Part of the Monroe case concerned the dissemination of information contained in a personnel file Monroe alleged was derogatory...

Providing volunteer with benefits deemed sufficient to trigger the Title VII protections available to employees and applicants

Posted on September 27, 2010
Providing volunteer with benefits deemed sufficient to trigger the Title VII protections available to employees and applicantsPietras v Farmingville Fire District, 180 F.3d 468Victoria Pietras failed the performance test required by the Farmingville Fire District...

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