Collective bargaining agreement provided for layoffs of school instructors within separate categories of school instructors rather than within tenure areas

Collective bargaining agreement provided for layoffs of school instructors within separate categories of school instructors rather than within tenure areas

In this Article 78 action an individual laid off when his position was abolished by the school district contended that based on the duties he performed as a "school instructor/transition counselor", he was entitled to seniority rights within the "special subject tenure area" (tenure area) of school social worker. Accordingly, he argued, he was not the person with the least seniority within the school social worker tenure area at the time his position was abolished. Citing 8 NYCRR 30-1.8 [b] [9], he contended that the school district violated Education Law §2585(3) in terminating his employment as a result of its abolishing his position.

When Supreme Court dismissed his Article 78 petition, the individual appealed.

Sustaining Supreme Court’s ruling, the Appellate Division rejected the individual's arguments.

The court ruled that “the collective bargaining agreement (CBA) between the District and the union representing petitioner provided that layoffs of ‘school instructors’ would be affected [sic] within the four separate categories of school instructors identified in the CBA rather than within tenure areas; that separate seniority lists for purposes of layoffs are maintained for school instructors; and that, ‘[i]n the event that positions are abolished, school instructors shall not have rights to displace teachers in regular school programs having less seniority, nor shall teachers have rights to displace school instructors having less seniority.’"*

The Appellate Division ruled that “by accepting employment as a school instructor and entering into the CBA as a result of his membership in the union, the individual had waived any right to be credited for seniority in the tenure area of school social worker, [Antinore v State of New York, 49 AD2d 6].”

* In the event a board of education abolishes a position, the services of the tenured teacher having the least seniority in the school district or BOCES “within the tenure area of the position abolished shall be discontinued.” In City of Plattsburgh v Local 788, 108 AD2d 1045, the Appellate Division held that this element – seniority – for the purposes of layoff can neither be diminished nor impaired by the terms of a collective bargaining agreement.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06412.htm

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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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School district may be held liable for the negligent hiring and retention of its employees

School district may be held liable for the negligent hiring and retention of its employees

In an action alleging that a school employee sexually abused a student, Supreme Court denied the school’s and the school district’s motions for summary judgment dismissing the complaint.

The Appellate Division affirmed the lower court’s ruling, explaining that::

1. The school and the school district failed to make a prima facie showing that they were not negligent with respect to the hiring and retention of the school district employee who allegedly sexually abused the student; and

2. The school and the school district failed “to establish, prima facie, that they discharged their duty to provide adequate supervision of the infant plaintiff.”

The Appellate Division noted that although “an employer cannot be held vicariously liable ‘for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business,’ the employer may be held liable for the negligent hiring and retention of the employee.”

Further, said the court, “a school district has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision,” citing Mirand v City of New York, 84 NY2d 44

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06289.htm