ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

July 17, 2014

Appealing an arbitrator’s §3020-a disciplinary adverse decision



Appealing an arbitrator’s §3020-a disciplinary adverse decision
2014 NY Slip Op 05271, Appellate Division, Fourth Department

On January 15, the §3020-a Disciplinary Hearing Officer (HO) found the employee  [Petitioner] guilty of one or more of the disciplinary charges filed against him and issued a decision that imposed the penalty of termination. The HO e-mailed the decision to the attorneys for the parties* on January 15, and the State Education Department (SED) received the HO's decision from the HO on January 16. SED then mailed the HO's decision to the parties on January 22, 2013. Petitioner received SED’s mailing the following day – January 23 -- and he filed a notice of petition and petition seeking an order vacating the decision of the HO pursuant to CPLR §7511 on February 1.

In lieu of answering the petition, the Depew Union Free School District filed a pre-answer motion seeking to dismiss the petition on the grounds [1] that the proceeding was not timely commenced under Education Law §3020-a (5)**and [2] that the court lacked personal jurisdiction over Depew because the notice of petition and petition were not properly served on the School District. Depew contended that these documents were served on a payroll clerk employed by Depew and not the District’s clerk or an officer of the School District.***

Supreme Court granted Depew’s motion on both the filing and service grounds advanced by the School District. The court determined that the petition was not timely filed within the meaning of Education Law §3020-a (5) inasmuch as the petition was not filed within 10 days of Petitioner's receipt of the HO's decision from the HO via e-mail. The court further determined that Petitioner's service of the petition was defective inasmuch as there was no evidence that the "payroll clerk was a designated school officer of the [District]."

Addressing the issue of “timely filing,” the Appellate Division noted that Education Law §3020-a(4)(a) provides, in pertinent part, that "[t]he hearing officer shall render a written decision … and shall forward a copy thereof to the commissioner who shall immediately forward copies of the decision to the employee and to the clerk or secretary of the employing board." §3020-a(5)(a), in pertinent part, provides that "[n]ot later than [10] days after receipt of the hearing officer's decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to [CPLR §7511]."

The primary consideration of courts in interpreting a statute is to "ascertain and give effect to the intention of the Legislature. Further, a statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent. The Appellate Division concluded that the phrase "receipt of the hearing officer's decision" in Education Law §3020-a(5)(a) refers to Petitioner’s receipt of the hearing officer’s decision from the SED.

Accordingly, said the court, the 10-day statute of limitations in which to appeal runs from the receipt of the HO's decision sent by SED rather than Petitioner’s receipt of the copy of the decision sent to him by the HO. The Appellate Division explained that in its view, “the legislature would not structure the distribution of the notice of an HO decision such that the Commissioner of Education (and, by natural extension, the SED) is to notify an educator of such determination and then create a period in which to challenge an HO decision that could begin to run before the entity charged with providing notice to an affected educator of an HO decision has actually given such notice.”

Although the Appellate Division concluded that Supreme Court erred to the extent it determined that the petition is time-barred, it nevertheless confirmed the lower court’s order granting Dryden’s petition because it agreed with Supreme Court’s ruling that Petitioner's service of the notice of petition and petition was defective.

Citing Franz v Board of Educ. of Elwood Union Free Sch. Dist. (112 AD2d 934, lv denied 67 NY2d 603), the Appellate Division said  "[t]he courts of this State have consistently required strict compliance with the statutory procedures for the institution of claims against the State and its governmental subdivisions, and where the Legislature has designated a particular public officer for the receipt of service of process, we are without authority to substitute another."

CPLR §311(a)(7), explained the court, provides, in pertinent part, that "[p]ersonal service upon a corporation or governmental subdivision shall be made by delivering the summons . . . upon a school district, to a school officer, as defined in the education law." Education Law §2 (13) defines the term school officer as "a clerk, collector, or treasurer of any school district; a trustee; a member of a board of education or other body in control of the schools by whatever name known in a union free school district, central school district, central high school district, or in a city school district; a superintendent of schools; a district superintendent; a supervisor of attendance or attendance officer; or other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system." A payroll clerk, said the court, was not an officer within the meaning of §311(a)(7) as Education Law §2130, entitled "Clerk, treasurer and collector in union free school district," provides for the appointment of an "individual as clerk of the board of education of such district."

Thus, said the Appellate Division, the reference to a singular clerk in §2130(1) must likewise apply to §2(13) of the Education Law such that there cannot be more than one person who is "a clerk" of the school district. The court’s conclusion: the payroll clerk was not eligible to be served with process as "a clerk" under section 2 (13). Judges Smith and Peradotto, however, concurred in the result but disagreed with the majority's conclusion that the petition was timely filed.

* Weeks v State of New York, 198 AD2d 615, discusses the procedural requirements that must be met in order to challenge an arbitration award pursuant to Article 75 and sets out guidelines addressing the filing a timely challenge to an arbitration award. The decision distinguishes between situations where the grievant is represented by an attorney and where he or she is represented by a union representative who is not an attorney. As a general rule, when an individual is represented by an attorney, delivery of the papers to the attorney is viewed as service on the individual. In such situations the attorney is deemed the individual's agent [see Bianca v Frank, 43 NY2d 168]. This was the underlying issue in Kalinsky v SUNY at Binghamton, 214 A.D.2d 860. The general rule is that: 1. If an individual is not represented by an attorney, the statute of limitations begins to run when the individual is served with the administrative determination; 2. If an individual is represented by an attorney, the administrative body may send a copy of the determination to the individual but the statute of limitations begins running upon service of the individual’s attorney; and 3. If the individual is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the individual to start the statute of limitations running.

** N.B. The Statute of Limitations set out in Article 75 is ninety days; however, in cases involving a motion to vacate an arbitration award issued pursuant to §3020-a of the Education Law the time limit is, by statute, ten days.

*** The payroll clerk had advised the process server that she was not authorized to accept service of legal document.

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The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html
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July 16, 2014

Disciplining employees for off-duty misconduct


Disciplining employees for off-duty misconduct
Source: Harris Beach NYMUNIBLOG

The NYCOM Municipal Bulletin. has published an article by Harris Beach attorney Edward A. Trevvett entitled Disciplining Employees for Off-Duty Misconduct: Maintaining Order While Avoiding the Pitfalls in its spring 2014 issue.

The article, posted on the Internet at http://www.harrisbeach.com/files/2014/Employee%20Discipline%20Article.pdf, cites relevant court decisions and discusses a number of factors employers should consider when thinking about disciplining an employee for off-duty job-related misconduct.
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The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html 

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Overtime pay provisions set out in a collective bargaining agreement may not be applicable to police officers engaged in off-duty "outside employment”


Overtime pay provisions set out in a collective bargaining agreement may not be applicable to police officers engaged in off-duty "outside employment”
City of Syracuse v Syracuse Police Benevolent Assn., Inc., 2014 NY Slip Op 05251, Appellate Division, Fourth Department*

The Syracuse Police Benevolent Assn., Inc., [PBA] filed two grievances, both alleging that the City of Syracuse had violated the parties' collective bargaining agreement (CBA) by failing to pay overtime wages to its police officers providing security services during their off-duty hours at the Syracuse International Airport. In response to the PBA’s demand for arbitration the City file a petition pursuant to Article 75 of the CPLR seeking permanent stay of arbitration of both grievances.

The first grievance, Grievance 1, alleged that the CBA required the City to pay overtime for security services provided by police officers during their off-duty hours at the Syracuse International Airport. Although the Airport is owned by the City, it is managed by the Syracuse Regional Airport Authority (Authority). The second, Grievance 2, alleged that the CBA required the City to pay overtime to two such off duty police officers providing security at the Syracuse International Airport who were "dispatched" to a motel adjacent to the airport to "investigate a domestic dispute." 

According to the decision, the off-duty officers who provide security services at the airport are not hired to perform that work by the City nor are they hired by the Authority. They are hired by G4S Solutions, Inc. (G4S), a private security firm retained by the Authority.

Supreme Court granted the City’s petition and stayed the arbitration of both Grievances. The Appellate Division agreed with Supreme Court with respect to Grievance 1 but held that Supreme Court erred in staying the arbitration of Grievance 2.

The Appellate Division commenced its analysis of the Supreme Court’s ruling by indicating the basic procedures followed by the courts in deciding an application to stay or compel arbitration requires the court determining if the subject matter of the grievance arbitrable in contrast to the merit of the grievance. In so doing, the courts apply a two-part test:

1. Is there any statutory, constitutional or public policy bar to arbitrating the issue presented?

2. If it is decided that no such bar exists, the court must next determine if the parties, in fact, agreed to arbitrate the particular dispute by examining the relevant collective bargaining agreement.

Where there is specific provision in the CBA providing for submission of the dispute to arbitration, that provision controls. In contrast, where there is a broad arbitration clause, the court must determine if there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

As to the existence of a "reasonable relationship," if such a relationship is found to exist it is the role of the arbitrator, rather than the court, to "make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them."

In this instance the court found that the CBA set out a broad arbitration clause and thus it was required to determine if there was a reasonable relationship between the grievance and the alleged violation of the CBA.

In Grievance 1 the PBA alleged that the City violated §8.5 of the CBA which section provided that the City "shall pay for a minimum of four hours' work at overtime rates when an off-duty employee is called in to work ordered overtime for a period of time which is not contiguous to that employee's regular tour of duty."

PBA contended that the off-duty officers working at the airport were entitled to four hours of overtime pay, over and above the hourly rate paid by G4S, each time they perform a "police function," such as "being directed to conduct traffic roadblocks … collect and turn in evidence, investigate suspicious activity and perform other vehicle and traffic duties that only on-duty police officers can perform."

The Appellate Division said that Supreme Court was correct in granting the City’s petition seeking to stay the arbitration “because the grievance is not reasonably related to the subject matter of the parties' CBA.” The grievance, said the court, is based on an alleged violation of §8.5 of the CBA, which relates to compensation for officers who are "called in" to perform "ordered" overtime. Here the off-duty officers working for G4S at the airport are not ordered to work overtime but electe to work for G4S during their off-duty hours.

Further, said the court, the off-duty officers are not "called in" by the City when they make an arrest at the airport or otherwise engage in police functions and PBA conceded that off-duty officers who provide private security services at other venues in the city are not entitled to overtime pay each time they engage in police functions in accordance with the overtime provisions set out in the CBA. The Appellate Division said that it did not perceive any reason to reach a different result with respect to the airport.

The court’s analysis of Grievance 2, also based on an alleged violation of §8.5 of the CBA, resulted in a different conclusion – that the subject of the grievance was reasonably related to the CBA and thus Supreme Court erred in staying the arbitration of Grievance 2.*

In Grievance 2 PBA contended that the two identified officers who, while working at the airport, were "dispatched" to a nearby motel to "investigate a domestic dispute," and those officers thereafter prepared a police report concerning the incident.

Noting that the grievance alleged that “the investigation of domestic violence calls has ‘historically been bargaining unit work’ … [and] that the officers in question were ordered to respond to the [motel] by an on-duty police officer, the Appellate Division concluded that Grievance 2 alleged violations reasonably related to the CBA and that it should be left to the arbitrator to "make a more exacting interpretation of the precise scope of the substantive provisions of the [CBA]" and determine "whether the subject matter of the dispute fits within them."

* See City of Syracuse v Syracuse Police Benevolent Assn., Inc., 2014 NY Slip Op 05252
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Whistle blower’s failure to cite any specific law, rule, or regulation allegedly violated by the employer in the complaint not fatal to pleading a viable cause of action


Whistle blower’s failure to cite any specific law, rule, or regulation allegedly violated by the employer in the complaint not fatal to pleading a viable cause of action
2014 NY Slip Op 04889, Appellate Division, Second Department

In an action to recover damages for violation of Labor Law §740, the plaintiff [WB] appealed an order of the Supreme Court that granted the employer's motion to dismiss the complaint for “failure to state a cause of action.”

A cause of action based upon Labor Law §740, commonly known as the "whistleblower statute," is available "to an employee who discloses or threatens to disclose an employer activity or practice which (1) is in violation of a law, rule or regulation, and (2) creates a substantial and specific danger to the public health'"*

The Article 78 petition alleged that the plaintiff [WB] was terminated from her position after she complained to her superiors about certain conduct that the employer engaged in or tolerated. It further alleged that such conduct violated various laws or rules or regulations, and threatened public health.

Although WB’s complaint did not specify any particular law, rule or regulation that the employer allegedly violated, the Appellate Division said that it sufficiently identified the complained-of conduct by the employer and provided the required notice. Therefore, said the court, the failure to specify in the complaint any law, rule, or regulation was not fatal to pleading a viable cause of action pursuant to Labor Law §740.**

Accordingly, said the Appellate Division, that branch of the employer's motion to dismiss the complaint for failure to state a cause of action should have been denied by Supreme Court.

Reversing the Supreme Court’s ruling “on the law,” the Appellate Division denied the employer’s motion to dismiss WB’s complaint for failure to state a cause of action.

* §75-B.2(a) of the Civil Service Law provides, in pertinent part, “A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.

** On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences.
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July 15, 2014

The placement of an individual’s name on the NYC Department of Education’s “Ineligible/Inquiry List” essentially bars future employment with the Department


The placement of an individual’s name on the NYC Department of Education’s “Ineligible/Inquiry List” essentially bars future employment with the Department
2014 NY Slip Op 05047, Appellate Division, First Department

As the U.S. Circuit Court of Appeals said in Segal v NYC Department of Education, 459 F3d 207, the placement of an individual’s name on the New York City Department of Education’s “Ineligible/Inquiry List” essentially render the individual ineligible for future employment with the New York City Department of Education [DOE].*

In this Article 78 action Supreme Court denied a former tenured teacher’s [Teacher] petition seeking to, among other things, remove her name from an "ineligible/inquiry list" maintained by the New York City Department of Education (DOE), and dismissed the proceeding. The Appellate Division affirmed the lower court’s ruling.

DOE placed had place Teacher’s name on the "ineligible/inquiry list" after her employment as a tenured school teacher was terminated following a disciplinary hearing pursuant to Education Law §3020-a.

The Appellate Division held that Supreme Court “properly found that the proceeding is time-barred, since it was commenced some five months after Teacher received notice of the DOE's determination,” explaining that Teacher is deemed to be on notice of the DOE Chancellor regulation regarding automatic ineligibility for reemployment upon termination.”

Accordingly, Teacher was "aggrieved" for the purposes of the running of the statute of limitations upon notice of her termination and her commencement of her CPLR Article 78 action more than four months later was untimely.

In addition, the Appellate Division pointed out that Teacher’s Article 78 proceeding was also barred by the Doctrine of Collateral Estoppel insofar as Teacher sought to re-litigate issues determined in a prior CPLR Article 75 proceeding challenging the termination of her employment.

In the words of the court, Teacher’s “challenge to her placement on the ineligibility list is, for all intents and purposes, a challenge to her termination, which she already had a full and fair opportunity to litigate.”

* A DOE Chancellor regulation provides that placement of an individual’s name on the list is an automatic consequence of termination and indicates that individual is ineligible for reemployment with the DOE absent express approval by the Chancellor.
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Termination of a firefighter from his position held to be a reasonable disciplinary penalty under the circumstances


Termination of a firefighter from his position held to be a reasonable disciplinary penalty under the circumstances
2014 NY Slip Op 04941, Appellate Division, Second Department

A hearing officer found a firefighter [Firefighter] guilty of misconduct* and imposed the penalty of termination from the Department. Firefighter appealed the penalty imposed by hearing officer.

Supreme Court granted Firefighter’s petition with respect to the penalty imposed by:

[1] annulling so much of the determination as terminated the petitioner's membership in the Department,

[2] reducing the penalty to a suspension for a period of 29 months, with credit for the period of suspension already served, and

[3] directing the Department to reinstate Firefighter as a member of the Department.

The Appellate Division revered the Supreme Court’s decision “on the law” and confirmed the penalty imposed by the hearing officer.

The court noted that an administrative penalty must be upheld unless it "is 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. Here, said the court, Firefighter’s conduct endangered himself and distracted his coworkers while they were fighting a fire, thus possibly endangering them as well.

Under these circumstances the Appellate Division held that the penalty of termination of membership was not shocking to one's sense of fairness. Thus Supreme Court should have denied that branch of the petition which sought to review the penalty, confirmed the penalty, and dismissed the proceeding on the merits.

* The hearing officer found Firefighter guilty of “verbally abusive conduct directed to fellow firefighters during the course of a fire,” and failing to follow direct orders, including an order directing him to leave the scene of an emergency because he was not attired in proper gear.”

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July 14, 2014

Free job retraining for high-skilled new Americans in science, technology, engineering and mathematics

Free job retraining for high-skilled new Americans in science, technology, engineering and mathematics
Source: The New York State Office for New Americans (ONA)

On July 14, 2014, the New York State Office for New Americans (ONA), The Cooper Union and  B’nai Zion Foundation opened registration for free professional courses and job placement assistance for high-skilled New Americans for the Fall 2014 semester.

This innovative public-private partnership with the Retraining Program for Immigrant Engineers is part of ONA’s focus on developing and leveraging the professional skills of New Americans and was launched in March of 2013 by Governor Cuomo. ONA is the first statewide office dedicated to assisting New York State's immigrants in their efforts to contribute to the economy and become a part of the family of New York.

Eligible immigrants are able to enroll in introductory and high-technology courses designed to update participants’ engineering, computer programming, and business skills. Classes are taught by The Cooper Union faculty and experts in the field and program offerings are flexible based on demand in the marketplace and needs of students.

All participants must have completed courses of study in their home country and be seeking retraining in the fields of science, technology, engineering, and mathematics (STEM).  Participants must also be permanent residents of the U.S. and have work authorization. 

“These courses are an important vehicle in expanding work opportunities for New Americans who already possess the skills our State’s employer’s need,” said Jorge I. Montalvo, Director of the New York State Office for New Americans. “We encourage eligible New Americans to enroll for these courses in order to maintain self-reliance and economic independence through productive employment in their chosen field relating to any of the STEM disciplines.”

Additional information, including courses being offered, is posted on the Internet http://www.bnaizion.org/retraining.php.

To schedule an appointment or to determine eligibility, call 212.725.1211, ext. 6245 or 646.485.7982, Monday through Thursday (9:00am to 5:00pm) and Friday (9:00am to 2:00pm). 
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IRS guidance on sick leave plans


IRS guidance on sick leave plans
Source: Internal Revenue Service, Office of Federal, State and Local Governments, July 2014

Government entities have established a variety of employer plans that provide a retirement benefit for employees based on credit for accumulated unused sick leave.

For example, §167.4 of the Civil Service Law provides that upon the retirement of a State employee whose salary is paid directly by the State, the actuarial value of the employee’s sick leave at the time of his or her retirement is to be used to pay all or part of the individual’s health insurance premium for the individual and his or her dependents during retirement while §41.j of the Retirement and Social Security Law provides for the inclusion of unused sick leave for members in the employ of the State as an employer in addition to any other service credit to which he or she is entitled at the rate of one day of additional service credit for each day of accumulated unused sick leave credit which he or she has at time of retirement for service, not to exceed one hundred sixty-five days.

Administrators of a plan with such features, or an appointing authority considering adopting a plan of this type for its employees, should be aware of how different features of such plans may affect the tax treatment of these benefits. The IRS Office of Federal, State and Local Governments [OFSLG] advises:

General Rule for Recognizing Income

In general, all compensation is included in wages at the time the Employees receive it, unless a specific exception applies.

One such exception, Internal Revenue Code Section 106, which provides that employer contributions to a health or hospital insurance plan for employees or former employees, their spouses and dependents, are excludable from the income of employees, and exempt from withholding for income tax, social security, and Medicare purposes.

When is income considered received?

Under IRC Section 451, individuals recognize income as soon as they have effective control over it; that is, when the funds are made available to the taxpayer without substantial limitations. This is known as the “constructive receipt” rule. Employer-provided health insurance benefits under Section 106 are excludable because, when paid directly by the employer, the employees are not considered to have constructive receipt of income through this benefit.

Generally, Section 106 of the Code provides that health and medical benefits can be provided tax-free by an employer. However, if there is an option/choice to receive cash or an other benefit, this may result in taxable wages, even if the employee does not elect to receive the cash [emphasis supplied].

If you have a plan or are considering a plan that provides for such a feature, you may want to review the IRS analysis, discussed below, that addresses whether or not such amounts can be excluded from an employee’s or former employee’s wages.

Note: Section 125 (“cafeteria”) plans provide a partial exception to the constructive receipt rules. These plans provide a choice between cash wages and a salary reduction to receive an excludable benefit. If the benefit is selected, the value is not included in wages. A Section 125, or cafeteria plan, cannot provide for deferred compensation. Only those benefits specifically indicated in Section 125 are eligible for tax-free treatment.

Revenue Ruling 75-539

Revenue Ruling 75-539 addresses the constructive receipt rules with specific reference to plans involving benefits for accumulated sick leave. This ruling remains the basis for the determining the tax treatment of various plans and has been cited many times since it was issued in 1975.

The ruling analyzes and distinguishes two labor contracts.

Situation 1: Upon retirement an employee will receive either a cash payment representing a part of unused sick leave, or may elect to apply to the employee’s share of the cost of participation in a health plan until the funds are exhausted.

The ruling concluded that, because in the employee had a choice to receive the benefit in cash, it was constructively received as income, even if the employee chose not to use the cash option. Therefore, the value of the benefit is included in gross income.

Situation 2: Upon retirement, the value of a portion of accumulated unused sick leave is placed in an escrow account to pay the full premiums of continued participation in the health plan until the funds are exhausted. No funds may be received in cash, and any unused part of the escrow amount reverts to the employer. Because these amounts were not made available to the employee directly, they constituted employer contributions to a health plan and are excludable from income under Section 106.

For additional information contact one of the following OFSLG Specialists for New York State: Dave Coulon [(315) 233-7305]; Jean Redman [(607-378-0069] or Granville Shannon [(212) 436 -1492].


Failure to allege discriminatory animus fatal to an individual’s claims of unlawful discrimination under State and New York City Human Rights Laws



Failure to allege discriminatory animus fatal to an individual’s claims of unlawful discrimination under State and New York City Human Rights Laws 
2014 NY Slip Op 05037, Appellate Division, First Department

The Appellate Division affirmed State Supreme Court granting the New York City Department of Citywide Administrative Service’s motion to dismiss an employee’s [Employee] Human Rights complaint.

The court, construing the complaint liberally and presuming its factual allegations to be true, gave Employee the benefit of every possible favorable inference and yet found that the Employee had not adequately plead or established a recognized disability under either the State or City Human Rights Law.

The Appellate Division explained that Employee’s medical proof only established that he was extremely anxious and stressed because of his daughter's medical condition.

Further, citing McEniry v Landi, 84 NY2d 554, the court said that Employee failed to adequately plead discriminatory animus. This, it pointed out, was fatal to Employee’s discrimination claims under the State and City Human Rights Laws.

July 12, 2014

New Language Proficiency Testing Advisory Memorandum, Policy Bulletin 14-01, issued by the New York State Department of Civil Service


New Language Proficiency Testing Advisory Memorandum, Policy Bulletin 14-01, issued by the New York State Department of Civil Service
Source: New York State Department of Civil Service

N.B.The State Personnel Management Manual addressing language proficiency testing for testing language proficiency for appointment to positions by entities for which the State Department of Civil Service administers the Civil Service Law has been revised. Policy Bulletin 14-01, which supercedes Advisory Memorandum #97-05, is set out below.

OVERVIEW

Effective July 9, 2014, the Department of Civil Service (DCS) will be utilizing Language Line Services, Inc. to provide additional resources and support for language proficiency test administration. For the over 200 classified titles that require language proficiency, Language Line Services will ensure the availability of test examiners in such languages as Spanish, Haitian Creole, Korean, Polish, Russian, and Chinese (Mandarin and Cantonese). If there are additional languages for which you require testing, please contact LanguageProficiency@cs.ny.gov.

Testing should be conducted on an as-needed basis and should be limited to reachable candidates. Language Line Services will schedule and administer language proficiency tests remotely or locally, by phone or in person, within three weeks of receiving a request. Candidates’ performance will be scored using the established New York State Proficiency Levels within five business days after test administration. Language Line Services will report test results to the requesting agency and to the DCS. The fee to use Language Line Services will be paid by the DCS. Language Line Services staff have been trained to administer the tests consistent with administration by State agencies.

USING LANGUAGE LINE SERVICES

Agencies who wish to use Language Line Services must designate a staff member from their Human Resource/Personnel Office to serve as the administrator for language proficiency testing. Administrators may access the Language Line Online Registration System User Guide for NYS at http://www.cs.ny.gov/ssd/Manuals/SPMM/1200Examinations/NYS%20Online%20Registration%20System%20User%20Guide%20with%20NYS%20OPT.pdf.

It is recommended that administrators print this guide for convenient referral. After reviewing the Guide, the Language Line Registration System may be accessed at: https://my.languageline.com/llu/go/login/.

USING IN HOUSE EXAMINERS

Agencies who have a ready pool of in house examiners may continue to use them. The honorarium for an in house examiner must be paid by the hiring agency. The DCS will not be certifying or training new in house examiners as the expectation is, over time, that agencies will transition to Language Line Services.

Agencies using in house examiners must contact LanguageProficiency@cs.ny.govto obtain revised Monitor Instructions, Candidate’s Booklet, Examiner’s Booklet, and Sample Letters/Forms. Please destroy existing language proficiency examination materials in a manner consistent with your agency’s elimination of secure and confidential material.

Agencies must designate a staff member from their Human Resource/Personnel Office to serve as the administrator for language proficiency testing. As necessary, the administrator may designate other monitors to conduct language proficiency testing. Test results should be reported to LanguageProficiency@cs.ny.gov. The test materials are designed to be reused and are considered confidential and secure and must be maintained in a confidential and secure manner in the agency Human Resource/Personnel Office.

PRIOR TESTING OF CANDIDATES

Whether you are using Language Line Services or in house examiners, before scheduling a test, the administrator should contact LanguageProficiency@cs.ny.govto determine if the candidate has already passed the proficiency test at the established proficiency level, or higher. Please provide the candidate’s name and last four digits of the Social Security number. If the candidate has already passed the language test at the established proficiency level, or higher, the test will be waived and the candidate may be considered for appointment. The DCS will continue to maintain a database of candidates who have been tested and the level of proficiency achieved so that repeated testing is not required.

DETERMINING LEVELS OF PROFICIENCY

The process for determining levels of proficiency remains unchanged. Agencies are responsible for providing the information necessary to determine the level of language proficiency that will ensure a candidate’s ability to properly perform the duties of the position at the examination planning scope conference. The level of proficiency must be the same for all positions within a title.

LEVELS OF PROFICIENCY

The levels of proficiency remain unchanged:
Level 1: This skill level requires relatively limited proficiency to conduct simple routine social conversations in an understandable manner making introductions, providing basic information about the surroundings, handling routine calls, or assisting others in filling out routine English language forms. Entry-level clerical titles with language parenthetics are designated as Level 1.

Level 2: This skill level requires proficiency in conducting smooth understandable conversation, reading correspondence, official documents, and forms to obtain accurate information, composing relatively simple and brief letters and memos for a variety of purposes, to explain rules or regulations, or to discuss a problem. Some higher level clerical, paraprofessional, and safety and security titles with language parenthetics are designated as Level 2.

Level 3: This skill level requires advanced proficiency evidenced by good control of grammar, a relatively large and diverse vocabulary, accurate communication in a variety of professional and social contexts, leading group activities, conducting meetings or training classes; administering tests, inventories or questionnaires including evaluating responses, preparing reports explaining relatively complex rules, regulations and procedures, conduct interviews, evaluate resources, or decide on a course of action. Some journey level personnel titles, social work, and psychologist titles with language parenthetics are designated as Level 3.

The names of candidates who fail to demonstrate the level of proficiency determined for the title will remain restricted on the language parenthetic eligible list. A retest may be granted six months after the candidate was last tested. Agencies may conduct a retest if and when they are actively canvassing the eligible list. Candidates who do not achieve the proficiency level required for the title may, upon request, receive a copy of the examiners rating of their performance. Appeal of ratings is not allowed as the opportunity for retest exists.

Questions regarding the information contained in this advisory may be directed to LanguageProficiency@cs.ny.gov.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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