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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.

Post Frequency: 10.2/day

Last Entry: November 05, 2020 at 10:02:02

Rules of the Civil Service Commission providing for separate Layoff Units for law enforcement personnel employed by Environmental Conservation

Posted on March 24, 2011
Rules of the Civil Service Commission providing for separate Layoff Units for law enforcement personnel employed by Environmental ConservationSource: New York State Register March 23, 2011 - Volume XXXIII, Issue 12The New York State Civil Service Commission has adopted rules providing for the Agency Law Enforcement Services negotiating unit of the Department of Environmental being designated separate units for the purposes of suspension, demotion of displacement (layoff units) pursuant to 壯80 and 80-a of the Civil Service Law...

Four-month statute of limitations for filing an Article 78 petition not tolled while individual pursues his or her administrative remedies

Posted on March 23, 2011
Four-month statute of limitations for filing an Article 78 petition not tolled while individual pursues his or her administrative remediesMatter of Murane v Department of Educ. of the City of New York, 2011 NY Slip Op 02054, Appellate Division, First DepartmentJennifer Murane appealed the Supreme Court?s dismissal of her Article 78 petition seeking to annul her termination as a probationary teacher by the New York City Department of Education, to have her year-end unsatisfactory rating expunged from her record and to direct her reinstatement to her position...

Tests for determining the ?arbitrability? of Taylor Law contract provisions

Posted on March 23, 2011
Tests for determining the ?arbitrability? of Taylor Law contract provisionsOdessa-Montour CSD v Odessa-Montour Teachers Asso., 271 AD2d 931The Odessa-Montour decision by the Appellate Division, Third Department applied the guidelines set out in the Court of Appeal?s ruling in Watertown City School District v Watertown Education Association, 93 NY2d 132...

The failure to properly and timely serve the agency issuing an adverse decision results in the court lacking ?personal jurisdiction? to hear the case

Posted on March 22, 2011
The failure to properly and timely serve the agency issuing an adverse decision results in the court lacking ?personal jurisdiction? to hear the caseMatter of Greenburgh Cent. School Dist. No. 7 v Westchester County Human Rights Commn., 2011 NY Slip Op 02009, Appellate Division, Second DepartmentPublic agencies are not immune to the almost always fatal procedural omission of failing properly serve the necessary parties in an appeal of an adverse administrative ruling as is demonstrated in this Article 78 action...

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Termination by operation of law

Posted on March 22, 2011
Termination by operation of lawBowman v Kerik, 271 AD2d 225Section 30.1(e) of the Public Officers Law provides that a public office becomes vacant upon the conviction of the incumbent of a felony, or a crime involving a violation of the individual?s oath of office...

Challenging administrative decisions

Posted on March 22, 2011
Challenging administrative decisionsGomez v Safir, 271 AD2d 246The Gomez case points out a procedural trap that an individual may encounter in the event he or she delays challenging an administrative decision. In this instance the case involved a delay by a police officer in contesting an administrative decision denying his request to engage in off-duty employment...

Comic book law

Posted on March 22, 2011
Comic book lawSource: Administrative Law Professor Blog. Reproduced with permission. Copyright � 2011, All rights reserved http://lawprofessors.typepad.com/adminlaw/One of the most entertaining blawgs I follow is LAW AND THE MULTIVERSE: SUPERHEROES, SUPERVILLAINS, AND THE LAW, writting by attorneys James Daily and Ryan Davidson...

Discipinary charges filed against employee for off-duty misconduct

Posted on March 21, 2011
Discipinary charges filed against employee for off-duty misconductCannata v Safir, 269 AD2d 327The Appellate Division, First Department did not have any difficulty in sustaining the decision of the Police Commissioner to dismiss New York City police officer Michael Cannata based on his finding that Cannata, while off-duty had:1...

Seasonal employees not entitled to a �75 hearing having access to an Article 78 hearing satisfies constitutional due process requirements

Posted on March 21, 2011
Seasonal employees not entitled to a �75 hearing having access to an Article 78 hearing satisfies constitutional due process requirementsEdward Carter, et al v Incorporated Village Of Ocean Beach, USCA, Second Circuit 10-0740-cv*Carter and his co-plaintiffs [hereinafter "Carter"] sued the Village and certain of its officials, alleging that they were unlawfully terminated from their respective seasonal police officer positions...

Layoff, preferred lists and reinstatement of public employees of the State as an employer and employees of its political subdivisions and schools

Posted on March 18, 2011
Layoff, preferred lists and reinstatement of public employees of the State as an employer and employees of its political subdivisions and schoolsSource: The Anatomy of a Layoff by Harvey Randall, Esq., Municipal Lawyer, Summer 2009, Vol. 23, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207 � 2009 New York State Bar Association...

Evidence lawfully obtained may be used to initiate an investigation of an employee even if similar information was received in violation of law

Posted on March 17, 2011
Evidence lawfully obtained may be used to initiate an investigation of an employee even if similar information was received in violation of lawMatter of Lomax v Kelly, 2011 NY Slip Op 01894, Appellate Division, First DepartmentRichard Lomax, a New York City probationary police officer, was off-duty with a fellow officer when the vehicle he was driving skidded on ice and rear-ended another car...

Compelling arbitration in cases where the grievance is based on the unilateral act or omission of a third party

Posted on March 17, 2011
Compelling arbitration in cases where the grievance is based on the unilateral act or omission of a third partyRemsen CSD v Remsen Teachers Asso., 270 AD2d 796 [Decided with In re Mohawk Central School District, 270 AD2d 798]In Richfield Springs CSD v Allen, 270 AD2d 734, the Appellate Division, Third Department, held that the fact that a third party provides the employer?s negotiated fringe benefit does not insulate the employer from its duty to negotiate changes in the terms and conditions of employment if third party unilaterally decides to change the benefit...

Consolidating positions in the public service

Posted on March 17, 2011
Consolidating positions in the public serviceInformal opinions of the Attorney General, Informal Opinion 93-2Opinions of the Commissioner of Education, Opinion 9994In view of the discussions focusing attaining economies in the public service, the following views of the Attorney General and the Commissioner of Education may be of interest with respect to suggestions involving the consolidation of certain positions in the public service,The Attorney General has concluded that Section 58...

Agency?s failure to respond to requests for information does not toll the Statute of Limitations for filing a timely petition

Posted on March 16, 2011
Agency?s failure to respond to requests for information does not toll the Statute of Limitations for filing a timely petitionTroeller v Klein, 2011 NY Slip Op 01874, Appellate Division, First DepartmentRobert J. Troeller sued the New York City Department of Education [DOE] claiming a breach a stipulation of settlement between the Union and DOE...

Competing union interests

Posted on March 16, 2011
Competing union interestsBuffalo CSD v Local 264, 270 AD2d 814Suppose an arbitration award in favor of an employee in one collective bargaining unit adversely affects an employee of the same employer in another collective bargaining unit. What can the second employee?s union do about the award?This was the issue considered by the Appellate Division, Fourth Department, in the Buffalo City School District case...

Administrative decisions and actions must be made in compliance to the law

Posted on March 16, 2011
Administrative decisions and actions must be made in compliance to the lawCimino v Grasso, Decisions of the Commissioner of Education, #14,319Michael J. Cimino asked the Commissioner of Education to remove members of the board of education and the superintendent of the Plainedge Union Free School District...

erving disciplinary charges on an employee in a disciplinary probation period status does not preclude his or her summary termination

Posted on March 15, 2011
Serving disciplinary charges on an employee in a disciplinary probation period status does not preclude his or her summary terminationMatter of Nieves-Diaz v City of New York, 37 AD3d 356After being served with disciplinary charges while serving a disciplinary probation period, New York City Police Detective Luis Nieves-Diaz was summarily terminated from the Department without being given a pre-termination hearing on those charges...

All about "cloud computing"

Posted on March 15, 2011
All about "cloud computing"Source: Sui Generis - a New York Law Blog written by Nicole Black, Esq. at http://nylawblog.typepad.com/suigeneris/Nicole Black explains the basics of ?cloud computing? in an article published in the March 14, 2011 issue of the Daily Record...

A public employer may not unilaterally discontinue a past practice but must negotiate any proposed change with the appropriate employee organization

Posted on March 14, 2011
A public employer may not unilaterally discontinue a past practice but must negotiate any proposed change with the appropriate employee organization Matter of Meegan v Brown, 2011 NY Slip Op 01158, Appellate DivisionThe City of Buffalo appealed the denial of its Article 75 motion seeking a stay of arbitration to address a grievance filed by Buffalo Police Benevolent Association President Robert P...

Hearing officer rejects motion to seal disciplinary hearing records but redacts the name of the victim of the employee's misconduct

Posted on March 14, 2011
Hearing officer rejects motion to seal disciplinary hearing records but redacts* the name of the victim of the employee's misconductFire Department v Palleschi, OATH Index #551/11In this Civil Service Law �75 disciplinary action, an EMT Lieutenant was charged with ?bringing the agency into disrepute and showing disrespect to the public...

Complying with all statutory tests critical to sustaining an administrative decision

Posted on March 14, 2011
Complying with all statutory tests critical to sustaining an administrative decisionGallo v Office of Mental Retardation and Developmental Disabilities, 37 AD3d 984Albert P. Gallo?s application for employment as a bus driver with the Schenectady County Chapter NYSARC, Inc...

While a public employer may abolish a position for reasons of economy or efficiency, it may not do so to avoid a civil servant?s statutory rights

Posted on March 11, 2011
While a public employer may abolish a position for reasons of economy or efficiency, it may not do so to avoid a civil servant?s statutory rightsMatter of Gallagher v Board of Educ. for Buffalo City School Dist., 2011 NY Slip Op 01163, Appellate Division, Fourth DepartmentJames F...

Employer?s filing appropriate Workers? Compensation claims forms defeats ?statute of limitation? objection to payment employee?s claim

Posted on March 11, 2011
Employer?s filing appropriate Workers? Compensation claims forms defeats ?statute of limitation? objection to payment employee?s claimMatter of Kwadzogah v New York City Health & Hosp. Corp, 2011 NY Slip Op 01389, Appellate Division, Third DepartmentAn employer waives the limitations defense by making payments of compensation to a claimant in the form of wages, medical treatment or other compensable expenses that carry a "recognition or acknowledgment of liability under the Workers' Compensation Law"In this case the Appellate Division found that Innocencia Kwadzogah had sustained a work-related injury on July 29, 2006, but did not lose any time from work at that time and therefore did not file a claim for workers' compensation benefits...

Failure to file prehearing statements required by the reviewing agency?s rules held to constitute a ?waiver of defenses?

Posted on March 10, 2011
Failure to file prehearing statements required by the reviewing agency?s rules held to constitute a ?waiver of defenses?Matter of Smith v Albany County Sheriff's Dept., 2011 NY Slip Op 01559, Appellate Division, Third DepartmentRaymond C. Smith, a correction officer with the Albany County Sheriff?s Department, filed for workers' compensation benefits alleging that he suffered depression and anxiety due to harassment at his work place...

Federal charges characterized as involving ?the failings of New York State government? and highlighting the need for comprehensive reform legislation

Posted on March 10, 2011
Federal charges characterized as involving ?the failings of New York State government? and highlighting the need for comprehensive reform legislationSource: Office of the GovernorU.S. Attorney Preet Bharara has filed a 53-page complaint in the United States District Court, Southern District of New York, United States of America v Carl Kruger, Richard Lipsky, Aaron Malinski, Solomon Kalish, Robert Aquino, David Rosen, William Boyland, Jr...

Courts may not revive an expired eligible list

Posted on March 09, 2011
Courts may not revive an expired eligible listMatter of Leone v City of New York, 2011 NY Slip Op 01701, Appellate Division, First DepartmentVincent Leone filed a petition pursuant to CPLR Article 78 seeking to reinstate an expired promotion list for the position of Sergeant in the New York City Police Department...

Employee terminated for falsifying attendance records and other misconduct

Posted on March 09, 2011
Employee terminated for falsifying attendance records and other misconductDinnocenzo v Lackawanna, 270 AD2d 840In Dinnocenzo the Appellate Division, Fourth Department, sustained the termination of an employee found guilty of falsifying his time records and other offenses...

Rebutting a statutory presumption

Posted on March 09, 2011
Rebutting a statutory presumptionHutnik v Kelly, 37 AD3d 346New York City police officer John Hutnik applied for accident disability retirement benefits pursuant to Section 207-k of the General Municipal Law. Section 207-k creates a rebuttable presumption that Hutnik?s ?heart-related disability? underlying his application for accidental disability retirement benefits was service-related...

Failure to exhaust the available administrative remedy to challenge a determination held a fatal defect in seeking judicial relief

Posted on March 08, 2011
Failure to exhaust the available administrative remedy to challenge a determination held a fatal defect in seeking judicial reliefMatter of Connor v Town of Niskayuna, 2011 NY Slip Op 01556, Appellate Division, Third DepartmentA number of police officers submitted applications for membership in the New York State and Local Retirement System...

FMLA does not cover faith healing trip

Posted on March 08, 2011
FMLA does not cover faith healing trip Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright � 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved...

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