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Applying the terms of a disciplinary settlement agreement

By Harvey Randall, Esq.

Applying the terms of a disciplinary settlement agreement
Perretti v NYC Transit Auth., App. Div., 3rd Dept., 283 A.D.2d 737

The New York City Transit Authority challenged a decision by the Unemployment Insurance Appeals Board granting one of its employees, Frank P. Perretti, unemployment insurance benefits.

Perretti was suspended from his employment as a sheet metal mechanic following a "physical altercation with a fellow employee." Perretti filed a grievance and subsequently entered into a stipulation providing that Perretti would be suspension without pay for 30 days and would enroll in and cooperate with an employee assistance program. When Perretti attempted to return to work at the end of his 30-day suspension without pay, the Authority sent him for a psychiatric evaluation.

Despite testing negative for alcohol or substance abuse, the Authority insisted that Perretti complete the employee assistance program without pay before he was permitted to return to work.

The Unemployment Insurance Appeal Board ruled that Perretti was disqualified from receiving unemployment insurance benefits during his 30-day suspension, but entitled to benefits during the time that he was enrolled in the alcohol treatment program. The Appellate Division agreed, finding no reason to disturb the Board's determination.

The court said that the record indicates that Perretti had signed the stipulation with the understanding that he could return to work immediately upon the conclusion of his suspension period. His attempts to return to work were frustrated by the employer's additional requirements that he undergo a psychiatric evaluation and alcohol counseling.

The Appellate Division pointed out that to the extent that the Authority asserts that Perretti was not ready, willing and able to work [see Labor Law Section 591(2)], "we note that any obstacle in this regard was caused by the [Authority's insistence that [Perretti] attend an alcohol counseling program despite his negative history of any alcohol abuse."

The court's view disciplinary settlements in much the same fashion -- holding the employer to observe the specific terms agreed upon by the parties.

The classic example: Taylor v Cass, 505 NYS2d 929. Here a disciplinary settlement provided that Taylor would be subject to termination without any hearing if, in the opinion of his superior, his job performance was adversely affected by Taylor's consumption of alcohol. Taylor was subsequently terminated for sleeping on the job. Although the employer claimed that the termination without a hearing was permitted under the terms of the disciplinary settlement agreement, the Appellate Division disagreed and directed Taylor's reinstatement to his position with back pay and benefits.

The court pointed out that the reason given for summarily terminating Taylor -- sleeping on the job -- was not authorized by the settlement agreement. The court ruled that Taylor could only be terminated without a hearing if he was found to have violated the specific reason set out in the settlement agreement: the performance of his duties was unsatisfactory because of his consumption of alcohol.

Full post as published by New York Public Personnel Law on January 18, 2008 (boomark / email).