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April 3, 2000

Back pay to be awarded a wrongly terminated employee upon his or her reinstatement to his or her former position

In this appeal the Appellate Division considered the question of back pay, if any, due an employee restored to the position pursuant to a court order where there is a delay in actually reinstating the individual to his or her position.

§77 of the Civil Service Law provides that an employee who was wrongfully removed from his or her position and is then reinstated to the position pursuant to a court order is to receive back pay for the period from the date of the wrongful removal to the date of his or her restoration to the payroll, less any unemployment insurance received by the individual.

If, however, there was any delay in the disciplinary proceeding caused by the accused employee, the salary otherwise payable for the period of such delay is to be deducted from the amount of back pay to be awarded the employee.

Similarly, where the accused employee has been suspended without pay as authorized by §75 of the Civil Service Law, if there is a delay in proceeding with the disciplinary hearing caused by the employee during while suspended without pay, the appointing authority may extend the period of such suspension without pay for an equal period of time.

This case involved another aspect of determining the back pay due an employee restored to his or her position pursuant to a court order: the effect of a delay in actually reinstating the individual to his or her position.

Apparently the individual was to be reinstated to his former position effective June 1, 1987. However he was not restored to the payroll until June 24, 1989. Noting that "where the 'delay in proceeding is occasioned by the conduct of the accused,' he will be denied the right to recover wages for the period involved," the Appellate Division said that there was nothing in the record indicating that the individual was responsible for the delay in restoring him to his position during the period June 1, 1987 through June 24, 1989.

Other aspects of the case involved the payment of interest and reductions in the amount of the back pay award for earnings from "outside employment" during this period.* The lower court did not award any interest on the award of back pay and, in addition, reduced the amount to be paid the individual for back salary by the amount of money he had earned in "outside employment" during the period involved.

The Appellate Division said that interest should have been awarded, citing its ruling in Kohler v Board of Education, 142 AD2d 260, and, in addition, held that the amount due the individual as back salary should not have been reduced by earning from outside employment.

* Although back pay awards are to be reduced to reflect any payments for unemployment insurance received by the individual during the period involved, in 1984 subdivision 3 of the §75 of the Civil Service Law was amended to eliminate wages from outside employment as a factor in adjusting such back pay awards [Chapter 710, Laws of 1984, effective August 3, 1984]. In contrast, §3020-a, subdivision 4.b. provides "If the employee is acquitted he or she shall be restored to his or her position with full pay for any period of suspension without pay and the charges expunged from the employment record. [See, also, §3020-a, subdivision 2. b.] 

The decision is posted on the Internet at:

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