Employee terminated after losing the license required to perform the duties of the position

Employee terminated after losing the license required to perform the duties of the position
Matter of New York State Off. of Children & Family Servs. v Lanterman, 62 AD3d 1109

The most significant issue in the Lanterman case concerned the result if the individual does not hold the license, certification, permit or other credential required to perform the duties of the position for which the credential is required. Typically courts view the loss of the required credential, be it to practice law or medicine, teach, drive a motor vehicle or pilot an aircraft, as barring the individual from providing such service or performing such tasks by operation of law. Courts have viewed employees who lack licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position.*

Lauren Lanterman was employed by the Office of Children and Family Services (OCFS) as a Teacher II. The State Education Department requires that teachers who provide educational services and programs to children in OCFS facilities have appropriate professional certification.

When Lanterman lost her certification to teach, OCFS advised her that if she failed to obtain the required certification by November 30, 2006, she would be terminated from her position. Lanterman did not obtain her teaching license by the deadline and she was terminated.

The Public Employees Federation [PEF], the collective bargaining representative for Lanterman’s collective bargaining unit, claimed that Lanterman was entitled to arbitrate the applicability of the disciplinary process under the collective bargaining agreement [CBA] to her termination resulting from her failure to maintain her teaching certification and ultimately obtained an order from a Supreme Court Judge compelling that the issue be submitted to arbitration.

The Appellate Division vacated the lower court’s order, rejecting PEF claim that its CBA with the State provides for the arbitration of any issue dealing with teacher certification, including what must occur if a teacher is not properly certified. Further, said the court, “even if an agreement to arbitrate such a dispute did exist, it would constitute a substantial violation of public policy and, as such, would be unenforceable.”

The court also found that although the CBA provides for the arbitration of issues dealing with disciplinary action taken against a teacher, “whether a teacher has the statutorily required qualifications for the position is not a disciplinary matter subject to that provision.” Rather, said the court, certification is a statutory prerequisite that an individual is required to have to qualify for a teaching position in the public school system; it has nothing to do with discipline and, as such, is not an issue that is subject to arbitration under this provision of the CBA.”

First and foremost, said the court, allowing Lanterman to teach without proper certification would serve to completely ignore state law and applicable SED regulations which clearly and unequivocally require that all instructors at OCFS facilities be properly certified.

The Appellate Division did not viewed Lanterman's failure to obtain certification and the decision to terminate her because she did not possess the qualifications required for her to be eligible for a teaching position as constituting a matter "concerning the interpretation, application or claimed violation" of the CBA. Rather, said the court, “certification is a legal condition precedent that Lanterman was obligated to satisfy to be eligible to retain her position.” Thus “her failure to obtain certification within the time allotted by state law served to automatically disqualify her from holding that position, and the decision to terminate her was based upon her failure to meet all of the eligibility requirements as mandated by state law and SED regulations.”

* In contrast, see Matter of Martin ex rel Lekkas, 86 AD2d 712. In Lakkas the court held that an individual’s failure to possess a valid license is not fatal to the employee’s continuation in service if he or she is not performing duties for which the license is required.