Analysis of out-of-title work claim controlled by the duties and allocation of the positions involved at the time the work was performed

Analysis of out-of-title work claim controlled by the duties and allocation of the positions involved at the time the work was performed
Matter of Kopyt v Governor's Office of Employee Relations, 2008 NY Slip Op 08222, Decided on October 30, 2008, Appellate Division, Third Department

The Governor's Office of Employee Relations adopted the findings of the Division of Classification and Compensation of the New York State Department of Civil Service in deciding out-of-title work grievances by Kopyt and a number of correction officers.

Frederick Kopyt contended that he and the other employees performed the duties of a hearing officer as a result of the Department of Correctional Services requiring them to conduct Tier III inmate disciplinary hearings notwithstanding the fact that they were employed in such positions as plant superintendent, education supervisor and vocational supervisor, which positions were allocated to SG 19 or SG 21. Kopyt alleged that at the during the time period that each individual was required to conduct Tier III hearings notwithstanding the fact that “only employees serving in the title of hearing officer, at a salary grade 25 (or the equivalent salary level of M-1), were authorized to perform this task” but neither he not the others had been compensated at the SG 25 or M-1 levels for such services.

Underlying GOER’s decision was the Division’s recommendation that the grievances be sustained because out-of-title work was performed under the classification standards in effect when Kopyt and the other employees were assigned hearing officer duties but that Kopyt and the others were not entitled to receive “back pay” for their out-of-title work because such hearing officer duties are now viewed as “commensurate with a salary grade of 18” and the individual grievants were all employed in a higher salary grade at the time that they actually performed hearing officer duties.

The Appellate Division, however, noted that the Division had made its recommendation notwithstanding an acknowledgment by the Division that no grade 18 position existed at the time Kopyt and the others presided over tier III hearings. The court said “… it is undisputed that, during the time period that [Kopyt and the other employees] were actually performing the out-of-title work by serving as hearing officers in tier III hearings, the only title in the then-existing salary plan that encompassed such duties was that of a hearing officer at a grade 25. Any subsequent reference or comparison to a grade 18 employee was therefore totally hypothetical.”

The court ruled that although the Division's analysis of relevant classifications and duties may have been extensive and sufficient to support a prospective reclassification, it could not provide a rational basis for GOER's determination to deny back pay to Kopyt and the other individuals. In other words, GOER's attempt to circumvent the back pay award otherwise due Kopyt and the others by retroactively applying a classification and salary grade allocation that was nonexistent when Kopyt and the other employees performed out-of-title work is arbitrary and capricious and without a rational basis.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08222.htm