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Legislation proposed to provide for a new procedure for determining suspensions and demotions of members of certain police agencies upon abolition or reduction of positions

Legislation proposed to provide for a new procedure for determining suspensions and demotions of members of certain police agencies upon abolition or reduction of positions


In the Assembly April 20, 2012 [A9887-2011]; In the Senate April 27, 2012  S7075-2011

This bill seeks to amend §80 of the New York State Civil Service Law as it applies to members of any police agency in the State other than those police agencies already subject to the provisions of subdivisions 1-a through 1-d of §80.

The proposed amendment, if signed into law would use seniority for the purposed of demotions and,or,  reductions in force on the basis of time in grade or title in contrast seniority based on service in the classified service.

The bills sponsor state that “This amendment would address a longstanding problem in the police community, as witnessed by the fact that 4 police agencies (the City of Buffalo Police and Fire Departments, employees of secure detention facilities in the State of New York, sworn employees of the Monroe County Sheriff's Department, and the Nassau County Police Department) have already obtained passage of existing subdivisions 1-a through 1-d changing the measure [seniority for the purposes of layoff] from time in the classified service to time in grade or title.”

The sponsors offer the following justification for this amendment to the Civil Service Law:

“Under the current law, suspensions or demotions in the Civil Service upon the abolition or reduction of positions must be made based upon seniority, with demotions or reductions in force to be made in "inverse order of original appointment on a permanent basis in the classified service" (CSL, §80.1). The spirit of the law is to safeguard the employment of those employees with the most time in the system, with the general principle being "last in - first out". In the uniformed services, this law can have a reverse effect essentially retaining employees with shorter tenures in the civil service rank while demoting those with longer tenures in rank. For example, a police officer with ten years in rank as a Sergeant would have to be demoted before a police officer with 1 year in rank as a Sergeant if the latter had more time in the classified service.* As mentioned above, several uniformed services operations have recognized this inequity and obtained individual legislative amendments to §80 of the New York Civil Service Law requiring said demotions and reductions to be made by "inverse order of original appointment on a permanent basis in the grade or title". We believe that this is the preferred and equitable method to handle these issues within the context of the police community and that it should be adopted state-wide, which this bill would do.”**

The text of Assembly 9887, Senate 7075 is set out below:

AN ACT to amend the civil service law, in relation to the calculation of seniority for purposes of layoffs or demotions

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

[Matter in ITALICS underscored is new; matter in brackets [ ] is old law to be omitted].


Section  1. Section 80 of the civil service law is amended by adding a new subdivision 1-e to read as follows:

 1-e. Notwithstanding the provisions of subdivision one of this section, the sworn members of any police agency as defined in section eight hundred thirty-five of the executive law, other than police agencies referred to in subdivisions one-a through one-d of this section shall be subject to the following procedure. Where, because of economy, consolidation or abolition of functions, curtailment of activities or otherwise, positions in the competitive class are abolished or reduced in rank or salary grade, suspension or demotion, as the case may be, among incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the grade or title in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs, subject to the provisions of subdivision seven of section eighty-five of this chapter; provided, however, that the date of original appointment of any such incumbent who was transferred to such governmental jurisdiction from another governmental jurisdiction upon the transfer of functions shall be the date of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction from which such transfer was made. Notwithstanding the provisions of this subdivision, however, upon the abolition or reduction of positions in the competitive class, incumbents holding the same or similar positions who have not completed their probationary services shall be suspended or demoted, as the case may be, before any permanent incumbents, and among such probationary employees the order of suspension or demotion shall be determined as if such employees were permanent incumbents.

S 2. This act shall take effect immediately.

*This rationale could be applied to all positions in the classified service.


** Presumably the seniority provisions of Section 80.2 defining "continuous service" applies with respect to such an individual's rights with respect to "bumping," "displacement" and placement on a Section 81 preferred list for reinstatement.

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The Layoff, Preferred List and Reinstatement Manual - a 645-page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.
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Court of Appeal Won't Enforce Botched Arbitration Agreement

Few lawyers, and even fewer non-lawyers, pay attention to legal-sounding mumbo jumbo in releases and employment agreements.  Until they matter.

Employer American Management Services had a broad arbitration provision that applicant Brandon Grey signed (called an issue resolution agreement or "IRA").  But Grey's offer letter contained a narrower arbitration clause, which the employee duly signed as well. That offer letter said it was "integrated," meaning that its provisions superseded all prior agreements.  Yep, the integration clause killed the prior, broader, arbitration provision in the IRA.

The contract contains an integration clause. It provides, in part: ?This Agreement is the entire agreement between the parties in connection with Employee‟s employment with [AMS], and supersedes all prior and contemporaneous discussions and understandings.
 ***
 Construing the clause as a whole, we interpret it to mean the contract is the final expression of the parties‟ agreement with respect to Grey‟s employment and it supersedes the IRA. * * *


Well, Grey arbitrated his claims and lost.  Then he petitioned the court vacate the arbitration award, presumably on the ground that he had not agreed to arbitrate.  Grey had sued for discrimination, harassment based on sexual orientation, and other claims not based on a breach of his employment contract per se.  Grey claimed the language of the offer letter was narrow and he was not required to arbitrate such claims.  The court of appeal agreed:
The scope of the arbitration clause in the employment contract only applies to claims arising from a breach of that contract and does not encompass all claims an employee may have against AMS. All of Grey‟s claims are for statutory violations, and none arises from a breach of the employment contract. We agree with both parties that Grey is not required to arbitrate his claims under these terms. 
 So, Grey gets another bite at the apple, but in court this time. 

The case is Grey v. American Management Services and the opinion is here.

Court of Appeal: Let Jury Decide Co-Worker Harassment Case

The Court of Appeal issued a "writ" of mandate, overturning a summary judgment order on a harassment claim.  Mustafa Rehmani worked for Ericsson in Silicon Valley.  He is Pakistani. Many of his co-workers are Indian. Rehmani claimed the Indian co-workers gave him a rough ride.  The court describes a series of incidents, over a few months, in which there were political jokes, terrorism jokes, and the like.  However, these jokes were pretty isolated, occurring about a month apart. 

The court decided that the allegations were enough to send the case to a jury and that the trial court should not have granted summary judgment.  The court also held that the company's management had sufficient notice of the conduct, and there was insufficient evidence of an adequate response to the conduct to justify summary resolution.

If you believe the plaintiff's version of events (which the court had to do), he told his manager repeatedly about his co-workers' anti-Pakistani / anti-Muslim jokes.  But she brushed them off.  So, a very thin case of national origin harassment will go to a jury, or a mediator.  A little management training (or better training) could have helped here.

The case is Rehmani v. Superior Court and the opinion is here.

From the Office of New York State Comptroller Thomas P. DiNapoli -Selected audits and reports issued during the period April 23-29, 2012


From the Office of New York State Comptroller Thomas P. DiNapoli -Selected audits and reports issued during the period April 23-29, 2012
Please click on the caption to access report posted on the Internet.

DiNapoli Announces Audits of Troubled Central New York Developmental Disabilities Services Office

New York State Comptroller Thomas P. DiNapoli announced Thursday that his office will examine whether the Office of People With Developmental Disabilities’ (OPWDD) Central New York Developmental Disabilities Services Office has taken action to end the numerous criminal and ethical violations exposed in previous Comptroller’s audits. Auditors will undertake three audits to determine if OPWDD has acted on the recommendations of prior reports.


DiNapoli: School District Tax Levy Growth Averages 3 Percent Statewide Under New Limits

School district tax levies in the 2012-13 school year are limited to average increases of 3 percent under a new property tax cap law, in addition to any further increases approved by voter overrides of the cap, according to a preliminary analysisof data released Monday by State Comptroller Thomas P. DiNapoli’s office.


Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits:
the Town of Duanesburg;

the Village of Endicott;

the Village of Herkimer;

the Village of North Collins;

the Village of South Blooming Grove; and

the Spencerport Fire District.


Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits:

the BOCES’ Non–Instructional Services; and

the Monroe–Woodbury Central School District.

Court’s review of an administrative disciplinary action is limited to determining if the decision is supported by substantial evidence


Court’s review of an administrative disciplinary action is limited to determining if the decision is supported by substantial evidence
 
The Commissioner of the Dutchess County Department of Social Services adopted the finding and recommendation of a hearing officer as to the employee’s being guilty of a certain charge of misconduct after a §75 disciplinary hearing and terminated the individual's employment.

The Appellate Division confirmed the Commissioner’s determination, denying the former employee’s petition “on the merits, with costs.”

The court explained that a court's review of administrative determinations in employee disciplinary cases made after a hearing under Civil Service Law §75 is limited to a consideration of whether the determination was supported by substantial evidence in the record of the hearing. In this instance, said the court, there was substantial evidence in the record to support the determination that the employee was guilty of misconduct

Further, the court found that the penalty of termination “was not so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02882.htm


NLRB's General Counsel Issues New Guidance for "R" Cases

The NLRB revised its procedures for handling "representation" cases - the NLRB proceedings that relate to elections.  We recently wrote an article about the main revisions here. The NLRB's acting General Counsel issued a memorandum explaining how to implement the new procedures here. You can find some FAQs from the Board here.

A reviewing body may not ignore evidence in the record in making its determination


A reviewing body may not ignore evidence in the record in making its determination

The Appellate Division granted the disability retirement applicant’s petition to annul the decision denying his request to amend his application for accidental disability retirement (ADR) benefits and remanded the matter with the direction that individual be permitted to amend his application to include a heart-related disability.

The court said the Retirement Board's determination was arbitrary and capricious and an abuse of discretion as at the time it denied application for ADR benefits based on an orthopedic condition, a member of the Board was aware that the applicant had suffered a heart attack, was incapacitated, and might wish to amend his application to include a claim under the Heart Bill [see Retirement and Social Security Law §363-a.].

The Appellate Division also noted that the record showed that the applicant’s heart condition predated his retirement, but was not diagnosed until after he retired.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02945.htm

A party’s failure to have an arbitration award confirmed is not a ground for vacating the award


A party’s failure to have an arbitration award confirmed is not a ground for vacating the award 
The Appellate Division succinctly ruled that the application to vacate the arbitration award filed pursuant to Article 75 of the Civil Practice Law and Rules was made more than 90 days after the award was delivered to the individual and is therefore untimely.

The court also noted that although CPLR Article 75 provides a mechanism by which a party may obtain judicial confirmation of an arbitration award, the failure to have an award confirmed is not a ground for vacating the award, citing CPLR §§7510 and 7511[b][1].

Addressing another claim by the individual – that the arbitration award should be vacated under CPLR §751l(b)(1)(iv), “failure to follow the procedure,” the Appellate Division explained that subdivision (iv) address vacating the award because of a "failure to follow the procedure” set out in Article 75. 

However, said the court, if a party applying to vacate the award pursuant to subdivision (iv) continued with the arbitration with notice of the defect and without objection, the award may not be vacated for that reason.

In this instance, said the court, the party seeking to vacate the award under color of §751l(b)(1)(iv) participated in the arbitration without objection as to the procedure employed and thus the award could not be vacated as otherwise permitted by subdivision (iv).

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02949.htm

State of Maryland bill prohibiting employers from requiring job applicants to reveal Internet passwords pending approval by the Governor


State of Maryland bill prohibiting employers from requiring job applicants to reveal Internet passwords pending approval by the Governor

The Maryland legislature's has passed a bill [Senate 433; House 964] prohibiting, among other things, employers from 1) requesting or requiring a job applicant to disclose user names or passwords for a personal electronic service; 2) refusing to hire an applicant for not providing access to such information; and 3) terminating or disciplining an employee for refusing to provide this information.

The provision is pending action by the Governor and if signed into law would take effect October 1, 2012.

The text of the bill is posted on the Internet at:
http://mlis.state.md.us/2012rs/bills/sb/sb0433t.pdf

The employee’s refusal to participate in a disciplinary hearing does not mean that the employee was denied administrative due process


The employee’s refusal to participate in a disciplinary hearing does not mean that the employee was denied administrative due process  

The Appellate Division rejected the employee's arguments seeking to vacate or modify a disciplinary action determination on grounds that included allegations that the hearing officer was biased and exceeded her authority in reaching a determination without affording the employee administrative due process.

The court said that the employee’s allegations were refuted by the record holding that the individual “was afforded every opportunity to present a defense and she acknowledges intentionally attempting to stonewall the proceedings by not appearing for and/or not participating on many of the hearing dates.”

Holding that the award was made in accord with due process, was supported by adequate evidence, and was rational and was not arbitrary and capricious, the Appellate Division noted that the employee failed to meet her burden of showing, by clear and convincing evidence, that the hearing officer was partial in her consideration of the evidence and ultimate determination.

Concluding that the penalty imposed, six months suspension without pay, was neither shocking to the court’s sense of fairness nor disproportionate to the multiple offenses for which she was found guilty, the court dismissed the employee’s petition.

The decision is posted on the Internet at:

 

Employee’s loss of employment as a result of his or her “off-duty” misconduct disqualifies the individual for unemployment insurance benefits


Employee’s loss of employment as a result of his or her “off-duty” misconduct disqualifies the individual for unemployment insurance benefits

The Appellate Division affirmed the Unemployment Insurance Appeal Board’s decision that disqualified an applicant for unemployment insurance benefits based on its finding that, among other things, the applicant for such benefits had left his employment following misconduct unrelated to his work.

The applicant had resigned form his position "in lieu of termination" following his arrest on multiple counts of aggravated harassment* in connection with his allegedly having made harassing phone calls to various women in the course of activities “unrelated to his employment."

The Appeal Board had rejected the applicant’s claim that he was entitled to benefits because his termination “stemmed from activity unrelated to his employment.”

The Appellate Division ruled that "[m]isconduct committed during nonworking hours, which raises serious questions as to a worker['s] integrity, bears a relationship to his [or her] work within the meaning of . . . the Labor Law."

* The applicant ultimately entered a plead guilty to two of the charges filed against him, which were later reduced to harassment in the second degree.

The decision is posted on the Internet at:


OSHA releases information addressing “Employer Safety Incentive and Disincentive Policies and Practices”


OSHA releases information addressing “Employer Safety Incentive and Disincentive Policies and Practices”

OSHA has posted a new enforcement memo online focusing on "Employer Safety Incentive and Disincentive Policies and Practices".

According to the HRTraniningCenter.com, OSHA views as suspect any incentive or disciplinary programs linked to worker accidents resulting in injury or illness. In addition, OSHA may prosecute employers whose programs violate worker whistleblower rights under Section 11(c) of the Occupational Safety & Health Act of 1970.

A 90-minute training session via on the new rules via Audio Conferencing is being offered by HRTrainingCenter.com on April 24, 2012 from 1:00 to 2:30 p.m., Eastern Standard Time.

Additional information concerning this training session is available on the Internet at: http://hrtrainingcenter.com/showWCDetails.asp?TCID=1010681&RID=1010687

Disclosure of public information or records to one is disclosure to all


Disclosure of public information or records to one is disclosure to all

The basic rule when considering a Freedom of Information Law [FOIL] request is that the theory underlying FOIL is that all public documents are subject to disclosure.

The release of some public records, however, may be limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute.

However, the custodian of the records may elect to deny access to documents otherwise subject FOIL absent a FOIL request or if it decides that the document requested may be withheld because it meets one or more of the exceptions set out in the law.

Significantly, there is no bar to providing information pursuant to a FOIL request, or otherwise, even if it falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

Indeed, a FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization world be required to file a FOIL request to obtain the information or record.

Further, it appears that once the information or record sought is provided to one party, it may not be denied to another party.

On this point the State’s Committee On Open Government advised a Town’s attorney that there was no legal basis to withhold the information requested pursuant to a newspaper’s FOIL request after it was disclosed to another newspaper.

In this instance Robert Freeman, the Committee’s Executive Director, stated that, in his view, “If a record is disclosed to one news media organization [by the custodian of the record]…it should be disclosed to any news media or for that matter any person requesting it.” Notwithstanding this advisory opinion, the Town’s attorney refused to supply the document demanded in the FOIL request submitted to the Town’s clerk.

Once possible exception: if the document demanded was provided pursuant to a court order or a subpoena, this may not constitute “disclosure” within Mr. Freeman’s meaning.

From the Office of New York State Comptroller Thomas P. DiNapoli - Selected audits and reports issued during the period April 16 - 22, 2012


From the Office of New York State Comptroller Thomas P. DiNapoli - Selected audits and reports issued during the period April 16 - 22, 2012
Please click on the caption to access report posted on the Internet.

DiNapoli: Syracuse Woman Sentenced for Stealing from the New York State Retirement System

Syracuse resident Kathleen Prince was sentenced last week in Onondaga County Court for stealing more than $29,000 from the New York State and Local Retirement System, marking the end of a joint investigation by State Comptroller Thomas P. DiNapoli and Onondaga County District Attorney William J. Fitzpatrick.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits:
The Town of Waverly.



The five most visited NYPPL posts during the week of April 13 through April 20, 2012 Click on title to access item.


The five most visited NYPPL posts during the week of April 13 through April 20, 2012
Click on the web site indicated to access item.


1. Individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency 

2. A member of a board testifying at a Civil Service Law §75 disciplinary hearing should recuse himself or herself from considering and acting on the findings and recommendations of the hearing officer

3. If the CBA provides for the arbitration of alleged contract violations, unless there is a statutory, constitutional or public policy prohibition barring such arbitration courts cannot stay the arbitration

4. Some procedural defects that bar the vacating of the arbitrator’s award

5. Former employee’s law suit alleging statements in the minutes of a board meeting were defamatory dismissed
http://publicpersonnellaw.blogspot.com/2012/04/former-employees-law-suit-alleging.html

Individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency


Individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency 
Filarsky v. Delia, USSC, No. 10–1018

Is an individual hired by a government agency to do its work ineligible to claim a qualified immunity in the event he or she is sued for some act or omission related to the service he or she is providing the government agency solely because he or she serves with the agency other than on a permanent or full-time basis?

The Court of Appeals for the Ninth Circuit concluded that a “private attorney,” because he or she was not a City employ­ee, was not entitled to claim the protection of a qualified immunity. The United States Supreme Court disagreed.

In this case, said the court, there was no dispute that qualified immunity was available the individuals employed by the jurisdiction as an employer and the 9th Circuit Court of Appeals granted this protection to the jurisdiction’s employees. It, however, denied such protection to the “private attorney” working with the public officials “because he was not a public employee but was instead a private individual ‘retained by the City to participate in internal affairs investigations.’”

The court said that in de­termining whether this distinction is valid, it considered the “general principles of tort immunities and defenses” appli­cable at common law, and the reasons the court earlier afforded such protection from lawsuit under 42 USC §1983.

The Supreme Court’s conclusion: While not a public em­ployee, Steve A. Filarsky, Esq., the private attorney, was retained by the City to assist in conducting an official investigation into potential wrong­doing. The court said that there was no dispute that government employees performing such work were entitled to seek the protection of qualified immunity. The common law does not draw any distinction between a public employee and a private attorney in this regard.

Noting that New York City has a Department of Investigation staffed by full-time public employees who investigate city personnel, and the resources to pay for it, the Supreme Court said “The City of Rialto [California] has neither, and so must rely on the occasional services of private individuals such as Mr. Filarsky. There is no reason Rialto’s internal affairs investigator should be denied the qualified immunity enjoyed by the ones who work for New York.”*

Justice Ginsburg, in her concurring opinion cautioned that the claim of "Qualified immunity may be overcome, however, if the defendant knew or should have known that his [or her] con­duct violated a right ‘clearly established’ at the time of the episode in suit," citing Harlow v. Fitzgerald, 457 U.S. 800.

The Supreme Court revered the 9th Circuit’s judgment denying qualified immunity to Mr. Filarsky.

*N.B. Citing Richardson v. McKnight, 521 U. S. 399, the Supreme Court noted that “This does not mean that a private individual may assert qualified immunity only when working in close coordina­tion with government employees.” Such immunity also available to others acting on behalf of the government and similarly serves to “ensure that talented candidates [are] not de­terred by the threat of damages suits from entering public service.” However, Justice Sotomayor, in her concurring opinion, commented “… it does not follow that every private individual who works for the government in some capacity necessarily may claim qualified immunity when sued under 42 U.S.C. §1983. Such individuals must satisfy [the court’s] usual test for conferring immunity.”

The decision is posted on the Internet at:
http://www.supremecourt.gov/opinions/11pdf/10-1018.pdf

Disciplinary arbitrator may consider hearsay evidence and unsworn testimony in making his or her determination


Disciplinary arbitrator may consider hearsay evidence and unsworn testimony in making his or her determination

The Appellate Division held that an arbitration award that resulted in the termination of the employee was made in accordance with due process; was supported by adequate evidence; and was rational and not arbitrary and capricious.

Citing Gray v Adduci, 73 NY2d 741, the court noted that "[h]earsay evidence can be the basis of an administrative determination." 

In addition, the Appellate Division said that unsworn testimony by witnesses to the incidents that led to the filing of disciplinary charges and the employee’s own testimony acknowledged the incidents, while offering differing exculpatory accounts thereof, supported the hearing officer’s determination.

As to the penalty imposed, termination, the court said that it did not find dismissal “so disproportionate to the multiple specifications upheld [the employee] with verbal and physical abuse of students and faculty members as to shock our sense of fairness, even considering the mitigating factors of [the employee’s] recurrent health issues.

The decision is posted on the Internet at:

Court vacates hearing officer’s determination for failure to comply with the agency’s rules and regulations


Court vacates hearing officer’s determination for failure to comply with the agency’s rules and regulations

This decision by the Appellate Division demonstrates that administrative due process applies in cases where a prisoner is charged with alleged misconduct and a disciplinary proceeding is conducted.

In this instance a prisoner was found guilty of certain alleged offences and a penalty of 90 days in solitary confinement and restitution of $100 was imposed. The individual appealed.

The Appellate Division, reversing a lower court’s ruling to the contrary, granted the prisoner’s petition and [1] annulled the determination of the hearing officer, [2] dismissed the charges against the individual and [3] directed the New York City Department of Correction “to expunge all references to the charges from [the individual’s] institutional records.”

The court found that hearing officer failed to provide accused with a written statement summarizing the testimony of three witnesses who testified in his favor and failed to state her reasons for rejecting the testimony of those witnesses and of the accused, in violation of relevant directives of the New York City Department of Correction. The Appellate Division said that the agency “is required to comply with its own regulation.”

Considering a procedural issue, the Appellate Division held that although the Department contended that the prisoner had failed to exhaust his administrative remedies, it would not consider that defense because the Department had failed to raise that claim it its answer.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02947.htm

Determining if a grievance resulting from an alleged violation of a collective bargaining agreement is subject to arbitration


Determining if a grievance resulting from an alleged violation of a collective bargaining agreement is subject to arbitration
In the Matter of the Arbitration between the Village of Horseheads and the Horseheads Police Benevolent Assn., Inc., 2012 NY Slip Op 02543, Appellate Division, Third Department

The Appellate Division, affirming a lower court’s ruling, said that the role of the court in reviewing an application to stay arbitration is limited. In determining if a particular grievance is subject to arbitration, the court must first determine if the parties may lawfully arbitrate the underlying dispute and, if so, whether they did in fact agree to so arbitrate the issue.

In this instance the Village of Horseheads did not contend that there was a statutory, constitutional or public policy prohibition against arbitrating this particular grievance. Accordingly, the sole issue for the court to determine was whether or not the parties, in accordance with the terms of the collective bargaining agreement, agreed to arbitrate the grievance presented by the Police Benevolent Association.

The relevant collective bargaining provision, said the court, defined a grievance as "any claimed violation, misinterpretation or inequitable application of existing laws, rules, procedures, regulations, application or enforcement of the terms of this agreement, administrative orders or work orders or rules of [the Village]."
Whether the Village’s action constituted an actual violation of a rule or regulation "goes to the merits of the grievance [itself], not to its arbitrability," said the court. Accordingly, this was an issue for the arbitrator to resolve.

In contrast, the Appellate Division emphasized that “For purposes of [its] limited inquiry, it [was] sufficient that [the Association had] asserted a ‘claimed violation’ of certain rules and regulations and that a ‘claimed violation’ is, in turn, subject to the grievance procedure set forth in the CBA “

The decision is posted on the Internet at: 


Appointing authority urged to permit employee terminated for cause to apply for a vested interest retirement


Appointing authority urged to permit employee terminated for cause to apply for a vested interest retirement

The police commissioner terminated a police officer after he was found guilty of official misconduct and violations of the Police Department Patrol Guide.

The Appellate Division annulled the commissioner’s action after dismissing certain specifications and remanded the matter the commissioner “for a determination of a new penalty on the remaining specifications.” Although the court found that there was no substantial evidence to prove the specifications that it had dismissed, it, in contrast, said that the “remaining specifications” were supported by substantial evidence.

However, the Appellate Division also said that “If the Commissioner sees fit to adhere to the penalty of termination,” the police officer "should be permitted to apply for a vested interest retirement."

Although the court acknowledged that the commissioner's penalty determination “is deserving of due deference,” it explained that it was also mindful of the fact that courts "cannot operate merely as a rubber stamp of the administrative determination if the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness.”

Characterizing the police officer’s misconduct  “an aberration from his otherwise exemplary career over approximately two decades,” and that termination would work an extreme hardship on the officer’s innocent family, the Appellate Division, Judge Sweeny dissenting, concluded that “[u]nder these circumstances, even in light of the repellent behavior exhibited by [the officer], the deprivation of his retirement benefits is shocking to one's sense of fairness, citing the Pell Doctrine [Matter of Pell, 34 NY2d at 233].

N.B. The Administrative Code of the City of New York provides that an employee may forfeit his or her retirement allowance under certain circumstances. For example, Section 13-173.1 of the Administrative Code requires a sanitation member to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the member is not "in service" on that date, he or she forfeits his or her retirement benefits.The Court of Appeals addressed the provisions of Section 13-173.1 in Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02787.htm

Former employee’s law suit alleging statements in the minutes of a board meeting were defamatory dismissed


Former employee’s law suit alleging statements in the minutes of a board meeting were defamatory dismissed

A court clerk was terminated by the town justice. The next day the town justice appeared at a special meeting of the Town Board to discuss the clerk’s termination and to request approval to hire a replacement court clerk.

The former town clerk then sued the town justice and the Town alledging that defamatory statements concerning her work and qualifications were recorded in the minutes of the Town Board’s special meeting and the minutes, that were later approved, were posted on the Town's Web site.*

Although the Appellate Division held that Supreme Court erred in dismissing the slander cause of action filed by the former court clerk against the town justice as untimely,** it held that the lower court had correctly determined that all of the statements the former court clerk alleged to be defamatory were either [1] opinion; [2] not directed at former court clerk; or [3] needed extrinsic facts to make them defamatory.

Thus, concluded the court, Supreme Court “correctly determined that the statements were not defamatory as a matter of law” and dismissed the complaint.

* See Public Officers Law §106

** The Appellate Division observed that if the town justice was acting solely on his or her own behalf, the Town would not be liable for his or her actions and the CPLR §215[3]’s one-year statute of limitations would apply to the cause of action. In contrast, if the town justice was acting within the scope of his or her employment with the Town, the Town may be liable for his or her conduct and would thus be the real party in interest; and under those circumstances the provisions set out in General Municipal Law §50-i would control.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02546.htm

NLRB Poster Takes Another Hit

The D.C. Circuit Court of Appeals enjoined the NLRB's implementation of the poster in an order  here.  What poster? See here.  What NLRB?  See here. Thanks, Cal Chamber.

Some procedural defects that bar the vacating of the arbitrator’s award


Some procedural defects that bar the vacating of the arbitrator’s award
Beals v New York City Transit Authority, 2012 NY Slip Op 02784, Appellate Division, First Department

The Beals decision by the Appellate Division, First Department, sets out a number of procedural defects that defeated the employee’s efforts to vacate an adverse arbitration award.

First, said the Appellate Division, the arbitrator “properly declined” to apply the collective bargaining agreement's statute of limitations for filing disciplinary charges as, pursuant to its terms, the statute of limitations did not commence to run while an investigation of the conduct leading to the disciplinary charges against employee was under way. Further, said the court, “any error by the arbitrator in interpreting the facts or applying the law on this issue did not provide a basis for vacatur of the award.”

Other procedural defects noted by the Appellate Division barring granting the employee’s petition seeking to the vacate the award in this instance included:

1. An individual waives his or her claims that the arbitrator should have enforced his or her witness subpoenas by failing to seek a stay of the arbitration and a court ruling compelling compliance and by continuing with the arbitration;

2. An arbitrator's erroneous evidentiary rulings with may support vacatur only if the evidence would have been pertinent and material; and

3. The employee’s failure to cite any provision in the collective bargaining agreement to support his or her contention that the arbitrator exceeded a restriction on his or her power.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02784.htm

Failure to fully comply with the procedures required by the Commissioner’s regulations when filing a notice of petition is a fatal jurisdictional defect


Failure to fully comply with the procedures required by the Commissioner’s regulations when filing a notice of petition is a fatal jurisdictional defect

This ruling by the Commissioner of Education again illustrates the fact that the failure to strictly comply with the filing requirements set out in Commissioner’s regulation will preclude the Commissioner’s considering the merits of the petition or appeal. 

Petitioners had withdrawn one aspect of their appeal, conceding that it was moot.

The School District then asked the Commissioner to dismiss the “surviving” elements of their petition, which sought the removal of a member of the school board. The school board contended that these claims should be dismissed because the petitioners had failed to include the notice required by 8 NYCRR §277.1(b) in such cases in their petition.  

The Commissioner agreed, ruling that the application seeking the removal of a school board member “must be dismissed because the notice of petition is defective.”

Noting that the Commissioner’s regulations require that the notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office (see 8 NYCRR §277.1[b]) the Commissioner ruled that the petitioners failed to give such notice and, instead, had used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.
  
The bottom line: A notice of petition which fails to contain the language required by the Commissioner’s controlling regulation is fatally defective and does not secure jurisdiction over the intended respondent.

The Commissioner’s decision, Decision #16,346, is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume51/d16346.html

From the Office of New York State Comptroller Thomas P. DiNapoli

From the Office of New York State Comptroller Thomas P. DiNapoli
Audits and reports issued during the period April 9 - 15, 2012 

DiNapoli: Audit Reveals Alleged Procurement Improprieties at SUNY Downstate Medical Center

An audit spurred by anonymous tips revealed fake bids for construction contracts and other procurement problems at SUNY Downstate Medical Center, according to New York State Comptroller Thomas P. DiNapoli. Findings of the audit have been referred to the Joint Commission on Public Ethics.


NYSHIP Contractors Wasting Millions in Taxpayer Money

The New York State Health Insurance Program erroneously paid as much as $11 million for special items such as implants, drugs and blood and evaluation procedures that were not performed according to two audits released Wednesday by State Comptroller Thomas P. DiNapoli.


Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli announced this week the following audits have been issued: the Department of Health and the Office of Children and Family Services.


DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits: the Village of Amityviller; the Village of Bloomingburg; the Carl Place Garbage District; the Town of Copake; the Town of Galway; and, the Massapequa Fire District.

Ninth Circuit Holds Regular Attendance Is Essential Job Function for a Nurse

Some welcome, common sense ADA analysis.  When a job must be performed at the job site, and the employee is not a fungible member of a group of similar workers who can each replace each other, the employer can require regular attendance as a job requirement.

Monika Samper was a neo natal nurse at a Providence Hospital.  She claimed to have Fibromyalgia, which resulted in poor attendance. She violated the attendance policy and was fired.  She wanted essentially a waiver from the policy.

No sale.

It is a “rather common-sense idea . . . that if one is not able to be at work, one cannot be a qualified individual.” Waggoner v. Olin Corp., 169 F.3d 481, 482 (7th Cir. 1999). Both before and since the passage of the ADA, a majority of circuits have endorsed the proposition that in those jobs where performance requires attendance at the job, irregular attendance compromises essential job functions. Attendance may be necessary for a variety of reasons. Sometimes, it is required simply because the employee must work as “part of a team.” Hypes v. First Commerce Corp., 134 F.3d 721, 727 (5th Cir. 1998). Other jobs require face-to-face interaction with clients and other employees. Nowak v. St. Rita High Sch., 142 F.3d 999 (7th Cir. 1998) (teacher); Nesser v. Trans World Airlines, Inc., 160 F.3d 442 (8th Cir. 1998) (airline customer service agent); Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209 (4th Cir. 1994) (teacher). Yet other jobs require the employee to work with items and equipment that are on site. EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943 (7th Cir. 2001) (en banc) (dockworker); Jovanovic v. In-Sink-Erator, 201 F.3d 894 (7th Cir. 2000) (tool and die maker); Waggoner, 169 F.3d 481 (production worker); Corder v. Lucent Techs., Inc., 162 F.3d 924 (7th Cir. 1998) (telephone customer support); Halperin v. Abacus Tech. Corp., 128 F.3d 191 (4th Cir. 1997) (computer consultant); Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755 (5th Cir. 1996) (mechanic); Jackson v.Veterans Admin., 22 F.3d 277 (11th Cir. 1994) (housekeeping aide); Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994) (coding clerk under the Rehabilitation Act); Law v. U.S. Postal Serv., 852 F.2d 1278 (Fed. Cir. 1988) (mail handler under the Rehabilitation Act).

The common-sense notion that on-site regular attendance is an essential job function could hardly be more illustrative than in the context of a neo-natal nurse. This at-risk patient population cries out for constant vigilance, team coordination and continuity. As a NICU nurse, Samper’s job unites the trinity of requirements that make regular on-site presence necessary for regular performance: teamwork, faceto-face interaction with patients and their families, and working with medical equipment face interaction with patients and their families, and working with medical equipment. Samper herself admits that her absences sometimes affected “teamwork and cause[d] a hardship for [her] coworkers who must cover for [her].” Similarly, once at work, Samper’s tasks required her to “lift babies, push cribs and isolettes.” More critically, she had to “get up at a moment’s notice to answer alarms [and] . . . [o]ften . . . run to codes.”
****
Samper’s performance is predicated on her attendance; reliable, dependable performance requires reliable and dependable attendance. An employer need not provide accommodations that compromise performance quality—to require a hospital to do so could, quite literally, be fatal.

Zing. The case is Samper v. Providence St. Vincent Med. Ctr. and the opinion is here.



The California Labor Commissioner Updates Its Wage Theft Forms

Effective 4/12/12, the DLSE updated its templates and FAQs to help employers comply with the Wage Theft Prevention Act.  You can find the page of forms here.   I guess they couldn't wait until the Brinker hoopla died down a little?

There are clarifications such as related to who is responsible for the notice when an employer hires a temp from a staffing agency (the agency), etc.  Fortunately, the DLSE also says that employers don't have to distribute new notices every time the DLSE issues an update.  Whew!

DGV

District Court Kills the NLRB Poster?

Our friends at the California Chamber of Commerce just let me know that the U.S. District Court for the District of South Carolina held in Chamber of Commerce v. NLRB (opinion here) that the NLRB did not have authority to require employers to post a poster informing employees of their rights under the National Labor Relations Act. (Poster information here and here.)  A district court previously held the NLRB did have the authority to require the poster, but did not have the power to create a new "unfair labor practice" when employers do not comply.   See National Ass’n of Manufacturers v. NLRB, No. 11-1629, 2012 WL 691535 (D.D.C. Mar. 2, 2012) (opinion here).

So, this is going to shake out in the Courts of Appeals or the U.S. Supreme Court.  Perhaps the Board will "delay" the implementation date again. Stay tuned.

Random Post-Brinker Thoughts

I have taken more time to read Brinker.  Here are some thoughts to add on to yesterday's post.

1.  The Supreme Court tried to clarify when class actions should be certified.  The trial court will have a  lot of latitude to decide certification, as it has been since 2004's Sav-on decision.  But this opinion will give trial courts more encouragement to certify class actions. The Court limited the trial court's examinations of whether a case has legal merit at the class action stage to resolving a legal issue that affects common issues so much that class certification would be improper. The trial courts will still wrestle with this issue and class action practice is likely safe under this analysis.  As explained below, the Court's application of class action rules means that class actions based on common policies (such as rest periods) may be authorized more freely than courts have been allowing up to now.

1.5 The summary judgment motion will be a very important part of class action defense and should be considered early in the process to avoid class certification of claims that are based on a common policy, but have no merit.

2.  Rest period law:  The Court precisely explained to employers the rest period rules.  Policies must be drafted in accordance with this formula:  "the rest time that must be permitted as the number of hours worked divided by four, rounded down if the fractional part is half or less than half and up if it is more (a “major fraction”), times 10 minutes."

You don't like math?  Well they explain it even better here, because they incorporate the fact that employees with shifts of fewer than 3.5 hours in length are not entitled to any rest period: "Employees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.... an employee would receive no rest break time for shifts of two hours or less, 10 minutes for shifts lasting more than two hours up to six hours, 20 minutes for shifts lasting more than six hours up to 10 hours, and so on." 

Caveat re scheduling:  although the court added up the rest-period minutes above, the law requires paid, 10-minute rest periods during each four hour work period.  So, the employer should draft its policies such that the rest periods fall somewhere in the middle of each four-hour work period.  Here is the rule regarding timing:
Employers are thus subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible. ....
in the context of an eight-hour shift, “[a]s a general matter,” one rest break should fall on either side of the meal break. (Ibid.)
3. The Court then held that the trial court properly certified a rest-period class because Brinker's rest-period policy was uniformly applied and was vague enough to permit the argument that it violated the law because it did not specifically authorize rest periods when employees work "major fractions" of four-hour periods.  Here is the policy:
Under the written policy, employees receive one 10-minute rest break per four hours worked: “If I work over 3.5 hours during my shift, I understand that I am eligible for one ten minute rest break for each four hours that I work.”

As you can see, this policy permits the argument that employees who worked 6.5 hours were not given a second rest period, even under the policy.  So, the Court's holding re class certification re-opens the door for rest period class actions. Therefore, employers must have a more detailed rest-period policy that spells out rest periods are authorized and permitted in accordance with the formula above, or a class action lawyer can argue that the vague, common policy is applied contrary to law.  Additionally, management must be educated to enforce rest period policies in accordance with their terms when they schedule. Make with the drafting!

4.  Meal periods.   I pulled the quotes in my post yesterday.  Here are some more thoughts.
- Meal period policies should emphasize they are "duty free," meaning the employee can come and go and leave the premises as desired.
the wage order’s meal period requirement is satisfied if the employee (1) has at least 30 minutes uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for the entire period.
Under the class action rule the Court developed, a vague policy is subject to an argument that the common policy violates the law.  So, policies should be explicit.

- Employers will be liable for regular straight time or overtime pay when the know or should have known that employees work through meal periods.  That's normal, because you have to pay employees when you "suffer or permit" them to work.  So, if employees don't punch out for meals, you cannot "auto-deduct" meal period time. As we have said before, the remedy for employees who do not comply with policies is discipline, not docking pay.

- Managers who prevent employees from taking meal periods per policy (such as discouraging meal periods) may expose the company to liability for meal period premiums.  When there is a "corporate culture" of discouraging the meal period, look for class actions based on a "common de facto policy."

- The legally compliant policy must provide that a meal period must start before the sixth hour of work begins.  That means, an employee who starts at 9 must be given a meal break by 2 pm.  Again, employers do not have to police the requirement, but the policy should be explicit to avoid the argument that the policy allows for illegal lunches.

- The legally compliant policy also should provide for a second meal period that starts before the eleventh hour of work begins.  There is a waiver of the second meal period allowed upon certain conditions, and that can be included as well.

- Caveat:  Know your business's wage order!  I am going over the general rules here (Wage Order 4, 5, 7 - the biggies).  There are different meal period provisions in some of the lesser used wage orders, such as Wage Order 12, applicable in the film industry. That Wage Order requires meals at six-hour intervals, not before the sixth hour and before the eleventh hour.

5.  Off the clock.  The Supreme Court decided that no "off the clock" work class would be allowed because (1) Brinker had an express and specific policy prohibiting off the clock work and (2) the only evidence in support of class certification was anecdotes about specific instances.  The Court noted the absence of a "de facto" policy requiring workers to work off the clock.  So, it pays to have a policy barring off the clock work.  We also like sign offs on time cards / time sheets certifying that employees reported all time worked, and verifying they know not to work off the clock.

Well, that's it for now.  I'm sure we'll have more down the road.  I hope this has been helpful.

Greg

Use of hearsay evidence in an administrative disciplinary action


Use of hearsay evidence in an administrative disciplinary action

Does hearsay evidence constitute “adequate evidence” for the purposes of sustaining disciplinary charges? In this action the Appellate Division found that it did.

Hearsay evidence, said the court, can be the basis of an administrative determination and, “if sufficiently probative, it alone may constitute substantial evidence," citing Matter of CafĂ© La China Corp. v New York State Liq. Auth., 43 AD3d 280, quoting Matter of Gray v Adduci, 73 NY2d 741. According, said the court, a hearing officer could base his or her finding the individual guilty of the charges on such hearsay evidence.

The standard applied by the Appellate Division: Education Law § 3020-a (5) provides that a court's review of an application to vacate or modify the decision of a hearing officer is limited to the grounds set forth in CPLR 7511, the provision pertaining to review of arbitrators' awards. It is now established, however, that, because §3020-a hearings are compulsory, the hearing officer's "`determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78.'"

However, in this instance, although the hearing officer’s finding that the employee was guilty, the Appellate Division ruled that the penalty imposed, termination, had to be vacated and the matter remanded to a different hearing officer for the imposition of the penalty to be imposed “on the basis of the administrative record of the hearing.”

The court said that “It is a fundamental principle of due process that ‘`no person may lose substantial rights because of wrongdoing shown by the evidence but not charged, [and where that principle is violated,] prejudice will be presumed.`"

Accordingly, said the Appellate Division, the Hearing Officer's decision imposing the penalty of termination cannot stand, because it appears to be based, in significant part, on evidence of wrongdoing that was not charged.

The decision is posted on the Internet at: 


Brinker: Employers Need Not Force Meal Periods

I will digest the Court's unanimous Brinker opinion a bit later. Those of you waiting to read it, it is here.

There is a long discussion of class certification in wage hour cases, which I will analyze later.  But
here are the money quotes on rest periods / meal periods.  At first read, this is total victory for the employer's position:

Rest periods:
Employees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.* * * 

Hohnbaum asserts employers have a legal duty to permit their employees a rest period before any meal period. Construing the plain language of the operative wage order, we find no such requirement and agree with the Court of Appeal, which likewise rejected this contention.
* * *

in the context of an eight-hour shift, “[a]s a general matter,” one rest break should fall on either side of the meal break. (Ibid.) Shorter or longer shifts and other factors that render such scheduling impracticable may alter this general rule.

Meal Periods:


Hohnbaum contends that an employer has one additional obligation: to ensure that employees do no work during meal periods. . . . We are not persuaded. The difficulty with the view that an employer must ensure no work is done—i.e., prohibit work—is that it lacks any textual basis in the wage order or statute.
* * *
If work does continue, the employer will not be liable for premium pay. At most, it will be liable for straight pay, and then only when it “knew or reasonably should have known that the worker was working through the authorized meal period.”

Proof an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay; employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability. On the other hand, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.
* * *
To summarize: An employer’s duty with respect to meal breaks under both section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law.

On the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay under Wage Order No. 5, subdivision 11(B) and Labor Code section 226.7, subdivision (b).

And finally - no "rolling 5 hour" meal periods.
We conclude that, absent waiver, section 512 requires a first meal period no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10th hour of work. We conclude further that, contrary to Hohnbaum’s argument, Wage Order No. 5 does not impose additional timing requirements.



   

Administrative Law Judge rules that the Civil Service Law does not give the employer the authority to discipline an employee for alleged misconduct that occurred before he or she was employed


Administrative Law Judge rules that the Civil Service Law does not give the employer the authority to discipline an employee for alleged misconduct that occurred before he or she was employed

OATH Administrative Law Judge Faye Lewis, citing Umlauf v. Safir, 286 A.D.2d 267, noted that it was error for the employer to attempt to terminate an employee for alleged pre-hiring misconduct as the authority with respect to such alleged pre-hiring conduct is “statutorily vested in the head of the New York City Department of … Citywide Administrative Services” pursuant to Civil Service Law §50(4).

§50(4) permits the “appropriate municipal commission” to “investigate the qualifications of an eligible after he [or she] has been appointed from the list, and upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification ... may revoke such eligible’s certification and appointment and direct that his [or her] employment be terminated.”

Other issues considered by Judge Lewis in making her determination included the applicability of §160.50 of the Criminal Procedure Law to the admissibility of certain exhibits in the course of the administrative disciplinary action; the crimes exception to the statute of limitations set out in §75 of the Civil Service Law; and the admissibility of certain statements that the employee made to NYC Department of Investigation personnel that the employee’s attorney contended were obtained in violation of the employee’s constitutional rights.

Ultimately Judge Lewis found the employee guilty of other disciplinary charges and recommended the penalty of dismissal “despite [the individual’s] lack of prior disciplinary history.”

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-2571.pdf

Brinker Meal Period Opinion To Be Released Thursday 4/12

I think we're finally going to find out what the law is on meal periods in California.  But I have no idea if employers are going to like it or not.  

Here's the Supreme Court's announcement.
BRINKER RESTAURANT v. S.C. (HOHNBAUM)
Case: S166350, Supreme Court of California
Event Description:   Notice of forthcoming opinion posted
To be filed on Thursday, April 12, 2012 at 10 a.m.

Our announcement is that Shaw Valenza will be conducting a webinar on Brinker on April 25.  Find out about it here.

State Department of Education’s advisory addressing changes in Education Law §3020-a effective April 1, 2012


State Department of Education’s advisory addressing changes in Education Law §3020-a effective April 1, 2012 
Source: SDE Office of Teaching Initiatives

As part of its 2011 legislative agenda, the Board of Regents sought a number of modifications to the tenured teacher hearing process set forth in Education Law §3020-a to address spiraling costs and the extraordinary length of time to conduct hearings. This legislation was introduced in the Assembly and Senate.* The Governor’s proposed 2012-13 State Budget included some of these reforms and the State Budget as adopted by the Legislature included a number of important programmatic and fiscal reforms.

The purpose of this memorandum is to clarify and provide guidance on the major changes set forth in Education Law §3020-a.  The Department is reviewing these changes and will make conforming amendments to the regulations to implement the law.  The Department will also be updating TEACH (a web-based data information system) to allow for greater access to case information and relevant dates.  During this transitional period, the Department thanks all affected parties in advance for their patience and cooperation as we work together to ensure successful implementation of the new Education Law §3020-a reform measures.
    
Below is a summary of the major Education Law §3020-a revisions.  For specific guidance, please refer to the actual statutory language, a copy of which is posted on the Internet at:



Effective Date

The change set forth in the amendments to Education Law §3020-a take place immediately and apply to all charges against tenured educators filed with the clerk or secretary of the school district or employing board on or after April 1, 2012. 

All affected parties should be aware of this effective date and are strongly advised to carefully review these changes and how they may affect any cases currently in progress or those that are anticipated.

The parties are strongly encouraged to develop the necessary tracking systems to ensure that responsibilities are carried out in a timely and professional manner, so that no party is unduly penalized by the very stringent timelines set forth in the statute.


Prohibition on Introduction of Evidence After 125 days

A significant change is the prohibition on the introduction of evidence more than 125 days after the filing of charges unless there are extraordinary circumstances beyond control of the parties set forth in Education Law §3020-a(3)(c)(vii).  Proceedings under §3020-a have traditionally taken far too long to resolve and this provision is designed to ensure timely resolution by prohibiting the introduction of evidence beyond a certain point in the proceeding.  This means that once the charges are filed, all parties should work expeditiously and cooperatively to complete the case in a timely manner so that cases are resolved within the statutory timeline of 125 days after the filing of charges. 

After 125 days no additional evidence shall be accepted unless there are extraordinary circumstances beyond control of the parties.  The “extraordinary circumstances” rule was meant to provide for that rare occasion when evidence truly could not be introduced in a timely manner.

The Department anticipates that modifications to TEACH will help the parties easily identify the relevant dates.  Until that time, arbitrators are expected to closely monitor the relevant dates and ensure adherence.


Department Selects Arbitrator When Parties Can Not Agree

The new amendments also modify the manner in which an arbitrator is selected if the parties fail to agree on an arbitrator selection within 15 days of receipt of the list.  Education Law §3020-a(3)(b)(iii) states that  “[i]f the employing board and the employee fail to agree on an arbitrator  to serve as a hearing officer from the list of potential hearing officers, or fail to notify the commissioner of a selection  within  such  fifteen day  time  period, the commissioner shall appoint a hearing officer from the list.”  This provision authorizes the Commissioner to select the arbitrator if the parties fail to agree by the 15th day.  It does not apply to NYC where there is an alternative procedure. 

Historically, the Department only intervened when notified of the failure to agree, however, the amended language does not require the Commissioner to wait until notification of the failure to agree.  The Commissioner will be authorized to select an arbitrator if no selection is affirmatively made by the 15th day. 

To ensure that all parties get proper notice of the list, the Department will continue its current practice of emailing the list of potential arbitrators to the school attorney and the employee attorney, if one has been designated by the employee.  Where no attorney is provided by the employee, the list will be sent directly to the employee. 

A hearing officer selection will be considered timely, if it is emailed to the dedicated tenure email box (TENURE@mail.nysed.gov) by the close of business on 15th calendar day. 

To minimize any potential delays that may occur at the school district level, the American Arbitration Association (“AAA”) has agreed to directly bill the school district for the production of the arbitrator list.  Schools are strongly encouraged to send the charges to the Department immediately without a check to AAA and make payment arrangements directly with AAA after the compilation of the list. AAA will take payment in the form of check or credit card for the $150 fee. 


Department Can Establish Maximum Arbitrator Rates and Study Hours

An amendment to Education Law §3020-a(3)(b)(i)(B) requires the Commissioner to establish a schedule for “maximum rates of compensation of hearing officers based on customary and reasonable fees for service as an arbitrator and provide for limitations on the number of study hours that may be claimed” (emphasis added).  The purpose of this amendment was to give the Commissioner the authority to control costs. 

Over the next several weeks, the Department will be conducting an analysis to determine both the appropriate rates and the maximum number of study hours for these types of proceedings.  Once the analysis is complete, the Commissioner will be establishing guidelines for arbitrator fees and study hours. 

All new arbitrator appointments will be contingent upon accepting the new maximum fee and study hour rates established by the Commissioner.

It is anticipated that the new TEACH modifications will incorporate changes in the manner in which arbitrator invoices are filed with the Department, to permit online filing to ensure accuracy, and improve the time it takes to process payments.


Department Can Exclude Arbitrators For Untimeliness

Pursuant to Education Law §3020-a(3)(c)(i)(B) the Department is authorized to monitor and investigate a hearing officer’s compliance with the timelines set forth in the statute. 

The Commissioner may exclude any hearing officer who has a record of continued failure to commence and conclude hearings within the timelines prescribed in the statute.
The Department anticipates that modifications to TEACH will help the parties easily identify the relevant dates.  Until that time, the Department will monitor manually. 


New Technology for Recording Hearings is Allowed

Education Law §3020-a(3)(c)(i)(D) continues the requirement that an accurate “record” of the proceedings be kept at the expense of the Department and furnished upon request to the employee and the board of education.  The statutory changes, however, permit the Department to take advantage of any new technology to transcribe or record the hearings in an accurate, reliable, efficient and cost effective manner. 

The Department will explore other cost-effective alternatives to recording and producing transcripts for these proceedings, however, there will be no immediate change to the manner in which these hearings are recorded.


Appropriation For New Cases

In order to ensure that the new reforms are successful, the law provides that any claims for cases in which charges were filed after April 1, 2012 be paid first out of the funds appropriated for the 2012-13 fiscal year pursuant to Education Law §3020-a(3)(b)(i)(A).  Total spending for 2012-13 is limited to $3.8 million.

This amendment will ensure that the Department is able to make timely payments for services rendered for new cases under the new system during 2012-13.  Thus arbitrators who accept cases under the new system with the new time constraints will be reimbursed for their services in a timely manner.  Any funds remaining will be used to pay for claims on cases that had charges filed prior to April 1, 2012. 


One Year limitation on Claims

Education Law §3020-a(3)(d) imposes a one-year limitation, following the final disposition of the hearing, for the submission of claims for reimbursement for services rendered.  The purpose of this amendment was to encourage timely submission of claims so that accurate budget assumptions can be made and claims can be paid for in a reasonable time. 

New Forms   The Education Law §3020-a forms are in the process of being updated.  It is imperative that schools use the updated forms for any cases commenced under the new system because they will reflect the new changes and provide critical information necessary to expedite the administrative steps for opening of cases and the appointment of the hearing officer.  It is anticipated that the new forms will be available within a week.  Please refer to: Teacher Tenure Hearing (3020a) for further information.


Questions

If you have any questions please contact Deborah A. Marriott, Director, Office of School Personnel Review and Accountability at 518-474-3021 or send an email to her attention at TENURE@mail.nysed.gov.

* See Chapter 57 of the Laws of 2012 for the text of the bill.

The changes are posted on the Internet at:


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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.
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