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December 31, 2008

AIDS AND THE HUMAN RIGHTS LAW

 AIDS AND THE HUMAN RIGHTS LAW

The Court of Appeals has affirmed the Appellate Division's decision in Health Insurance Assoc. of America v Corcoran, 115 AD2d 61 holding that health insurers may lawfully test applicants for the AIDS virus and decide not to insure those testing positive for HIV. The case had been brought by a group consisting of insurance companies and associations to challenge a rule by the Superintendent of Insurance prohibiting writers of health insurance policy denying coverage to persons testing HIV positive. The rule prohibited an insurance company from asking applicants to submit to HIV testing and then refusing to issue a policy if the test was positive. The regulation, however, did not apply to the issuance of a life insurance policy.

In contrast, the Commissioner of Human Rights ruled that a hospital unlawfully discriminated against an applicant for a pharmacy position when it refused to employ the applicant because of a positive HIV test [State Division of Human Rights (John Doe) v A Medical Center, NYLJ 12/26/90]. Here the Commissioner said that "it is undisputed that [Doe] is HIV seropositive and that HIV seropositivity constitutes a "disability" within the meaning of the Human Rights Law." The decision indicates that the only reason why Doe was denied employment was because of his HIV seropositivity. The major issue before the Commissioner was whether Doe's disability "prevented him from performing 'in a
reasonable manner' the duties of a pharmacist with [the Medical Center].

According to the SDHR ruling, there was "overwhelming evidence in the record to the effect that [Doe's] unrestricted employment as a pharmacist posed a negligible risk of infection to patients." It was held that the Center's denying Doe unrestricted employment was based on surmise, conjecture and blind prejudice, rather than the facts, in violation of the Human Rights Law. The Center was directed to offer Doe the next available position, subject to any additional testing required by regulations of the New York State Department of Health.

AIDS AND THE HUMAN RIGHTS LAW

 AIDS AND THE HUMAN RIGHTS LAW

The Court of Appeals has affirmed the Appellate Division's decision in Health Insurance Assoc. of America v Corcoran, 115 AD2d 61 holding that health insurers may lawfully test applicants for the AIDS virus and decide not to insure those testing positive for HIV. The case had been brought by a group consisting of insurance companies and associations to challenge a rule by the Superintendent of Insurance prohibiting writers of health insurance policy denying coverage to persons testing HIV positive. The rule prohibited an insurance company from asking applicants to submit to HIV testing and then refusing to issue a policy if the test was positive. The regulation, however, did not apply to the issuance of a life insurance policy.

In contrast, the Commissioner of Human Rights ruled that a hospital unlawfully discriminated against an applicant for a pharmacy position when it refused to employ the applicant because of a positive HIV test [State Division of Human Rights (John Doe) v A Medical Center, NYLJ 12/26/90]. Here the Commissioner said that "it is undisputed that [Doe] is HIV seropositive and that HIV seropositivity constitutes a "disability" within the meaning of the Human Rights Law." The decision indicates that the only reason why Doe was denied employment was because of his HIV seropositivity. The major issue before the Commissioner was whether Doe's disability "prevented him from performing 'in a
reasonable manner' the duties of a pharmacist with [the Medical Center].

According to the SDHR ruling, there was "overwhelming evidence in the record to the effect that [Doe's] unrestricted employment as a pharmacist posed a negligible risk of infection to patients." It was held that the Center's denying Doe unrestricted employment was based on surmise, conjecture and blind prejudice, rather than the facts, in violation of the Human Rights Law. The Center was directed to offer Doe the next available position, subject to any additional testing required by regulations of the New York State Department of Health.

CREDIBILITY OF WITNESSES


CREDIBILITY OF WITNESSES
Decisions of the Commissioner of Education, Decision #12,399

A teacher was charged with conduct unbecoming a teacher based on allegations that he touched the breasts or buttocks of female students on a number of occasions. When the §3020-a hearing panel cleared him of all charges and specifications, the district appealed. The Commissioner sustained the hearing panel's determination.

One of the issues involved the credibility of the witnesses. As to the testimony of the student-witnesses, the panel said "words are hopelessly inadequate to describe the tinny, artificial, and canned nature of ... [the teacher's] accusers." The record indicates that teacher was alleged to have repeatedly "patted the rear-ends of some of the girls in a classroom full of children and none of the boys (except one whose testimony was discounted by the panel) saw any of this happen."

As to the testimony of another student, the panel said that "an oath has no meaning for this child whatsoever; she will say whatever she wants, whenever she wants."

On the issue of credibility, the Commissioner said that "where the panel determination rests in a major part on determination of witness credibility, [he] will not substitute [his] judgment for that of the panel unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts."

The Commissioner also rejected the district's argument that the accused teacher had the burden of proving that the student complainants were not telling the truth. A psychologist hired by the district testified that he concluded that "all the girls he interviewed were truthful." The district claimed that the teacher had the obligation of calling his own expert to refute such testimony. The Commissioner said that the district had the burden of proving the teacher's guilt by a preponderance of the evidence and "the fact that the [teacher] failed to call an expert in response to the [district's] expert does not reflect adversely on the [teacher] because he had no duty to call an expert."

CREDIBILITY OF WITNESSES


CREDIBILITY OF WITNESSES
Decisions of the Commissioner of Education, Decision #12,399

A teacher was charged with conduct unbecoming a teacher based on allegations that he touched the breasts or buttocks of female students on a number of occasions. When the §3020-a hearing panel cleared him of all charges and specifications, the district appealed. The Commissioner sustained the hearing panel's determination.

One of the issues involved the credibility of the witnesses. As to the testimony of the student-witnesses, the panel said "words are hopelessly inadequate to describe the tinny, artificial, and canned nature of ... [the teacher's] accusers." The record indicates that teacher was alleged to have repeatedly "patted the rear-ends of some of the girls in a classroom full of children and none of the boys (except one whose testimony was discounted by the panel) saw any of this happen."

As to the testimony of another student, the panel said that "an oath has no meaning for this child whatsoever; she will say whatever she wants, whenever she wants."

On the issue of credibility, the Commissioner said that "where the panel determination rests in a major part on determination of witness credibility, [he] will not substitute [his] judgment for that of the panel unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts."

The Commissioner also rejected the district's argument that the accused teacher had the burden of proving that the student complainants were not telling the truth. A psychologist hired by the district testified that he concluded that "all the girls he interviewed were truthful." The district claimed that the teacher had the obligation of calling his own expert to refute such testimony. The Commissioner said that the district had the burden of proving the teacher's guilt by a preponderance of the evidence and "the fact that the [teacher] failed to call an expert in response to the [district's] expert does not reflect adversely on the [teacher] because he had no duty to call an expert."

USE OF PHYSICAL FORCE


USE OF PHYSICAL FORCE
Decisions of the Commissioner of Education, Decision #12,421

The Commissioner rejected an appeal from a determination by a §3020-a hearing panel that found a teacher guilty of using excessive force against a pupil and imposed a penalty of a one month suspension without pay.

The record indicates that the pupil was unruly and confrontational and provoked the incident. Although district's regulations acknowledge that the use of reasonable physical force to restrain a student or to protect oneself may be justified under limited circumstances, here the hearing panel decided that the teacher's actions went beyond that. It said that the teacher did not "simply restrain the student but, rather, pushed her aggressively against the wall."


USE OF PHYSICAL FORCE


USE OF PHYSICAL FORCE
Decisions of the Commissioner of Education, Decision #12,421

The Commissioner rejected an appeal from a determination by a §3020-a hearing panel that found a teacher guilty of using excessive force against a pupil and imposed a penalty of a one month suspension without pay.

The record indicates that the pupil was unruly and confrontational and provoked the incident. Although district's regulations acknowledge that the use of reasonable physical force to restrain a student or to protect oneself may be justified under limited circumstances, here the hearing panel decided that the teacher's actions went beyond that. It said that the teacher did not "simply restrain the student but, rather, pushed her aggressively against the wall."


RELEASING STUDENTS DURING THE SCHOOL DAY


RELEASING STUDENTS DURING THE SCHOOL DAY
Sprecher v Port Washington Union Free School District, 166 A.D.2d 700 

The Sprecher case concerns a matter frequently faced by school administrators and teachers -- the release of a student from class during the school day. It seems that under certain conditions a teacher or administrator may be held liable negligence for releasing the student. Liability will result if the court finds that the teacher or administrator did not act "prudently" under the circumstances.

In this action a parent sued the principal and the district for negligence "in the discharge of their duty of care toward the [students] while they were in their custody." At the time the children were the center of a custody dispute between the parents.

According to the decision, the school principal released students to their natural father when the father served the principal with a Texas court order, certified by a New York Family Court clerk, transferring the custody of the children from their mother to him. The principal believed he had to comply with the terms of the Texas court order when he released the students to the custody of their father.

The Appellate Division said that "the school district has a duty to exercise the same degree of care toward the students in its custody as a reasonably prudent parent would exercise under comparable circumstances. Here the court concluded that this test had been met. Agreeing with the principal's action in releasing the children to their father, the Appellate Division ruled that "as a matter of law [the principal's] actions in obeying the Texas Court order were those of a reasonably prudent parent."

The decision notes that "generally a lawful order of a court must be obeyed or the individual against whom such an order is directed may be liable for contempt for his failure to do so." In addition, the Appellate Division said that when faced with a court order "one is not free to simply ignore it on the grounds that it may be erroneous."

RELEASING STUDENTS DURING THE SCHOOL DAY


RELEASING STUDENTS DURING THE SCHOOL DAY
Sprecher v Port Washington Union Free School District, 166 A.D.2d 700 

The Sprecher case concerns a matter frequently faced by school administrators and teachers -- the release of a student from class during the school day. It seems that under certain conditions a teacher or administrator may be held liable negligence for releasing the student. Liability will result if the court finds that the teacher or administrator did not act "prudently" under the circumstances.

In this action a parent sued the principal and the district for negligence "in the discharge of their duty of care toward the [students] while they were in their custody." At the time the children were the center of a custody dispute between the parents.

According to the decision, the school principal released students to their natural father when the father served the principal with a Texas court order, certified by a New York Family Court clerk, transferring the custody of the children from their mother to him. The principal believed he had to comply with the terms of the Texas court order when he released the students to the custody of their father.

The Appellate Division said that "the school district has a duty to exercise the same degree of care toward the students in its custody as a reasonably prudent parent would exercise under comparable circumstances. Here the court concluded that this test had been met. Agreeing with the principal's action in releasing the children to their father, the Appellate Division ruled that "as a matter of law [the principal's] actions in obeying the Texas Court order were those of a reasonably prudent parent."

The decision notes that "generally a lawful order of a court must be obeyed or the individual against whom such an order is directed may be liable for contempt for his failure to do so." In addition, the Appellate Division said that when faced with a court order "one is not free to simply ignore it on the grounds that it may be erroneous."

FILING UNLAWFUL DISCRIMINATION CLAIMS AGAINST SCHOOL DISTRICTS

FILING UNLAWFUL DISCRIMINATION CLAIMS AGAINST SCHOOL DISTRICTS
Stoetzel v Wappingers Central School District, 18 AD 2d 636 561 NYS2d 71

Gerhard Stoetzel claimed that he was subjected to unlawful discrimination due solely to his national origin or ancestry in violation of §296 of the Executive Law [the Human Rights Law] when he was suspended without pay by the School District.

His claim was dismissed by a Supreme Court judge for a number of reasons, including timeliness. On this point the Courts said that the complaint had not been brought within the Statute of Limitations -- the one year period allowed by §297.5 of the Executive Law.

In reviewing Stoetzel's appeal, the Appellate Division said that the lower court's dismissal on the basis of timeliness was incorrect, indicating that "it is well established that the institution of civil actions to recover damages for unlawful discriminatory practices under Executive Law §296 is governed by the three-year statute of limitations prescribed in CPLR [Civil Practice Law and Rules] §214(2)."

However, this ruling did not prove to be particularly helpful to Stoetzel as the Appellate Division also indicted that when a school district is sued, §3813(1) of the Education Law requires that a notice of claim must be presented to the district involved within three months after the accrual of the claim. Since Stoetzel conceded that he had not complied §3813(1) [nor did he ask for approval to file a late claim until after the Statute of Limitations had expired], the Appellate Division said that his complaint was "fatally defective" and dismissed his appeal.

FILING UNLAWFUL DISCRIMINATION CLAIMS AGAINST SCHOOL DISTRICTS

FILING UNLAWFUL DISCRIMINATION CLAIMS AGAINST SCHOOL DISTRICTS
Stoetzel v Wappingers Central School District, 18 AD 2d 636 561 NYS2d 71

Gerhard Stoetzel claimed that he was subjected to unlawful discrimination due solely to his national origin or ancestry in violation of §296 of the Executive Law [the Human Rights Law] when he was suspended without pay by the School District.

His claim was dismissed by a Supreme Court judge for a number of reasons, including timeliness. On this point the Courts said that the complaint had not been brought within the Statute of Limitations -- the one year period allowed by §297.5 of the Executive Law.

In reviewing Stoetzel's appeal, the Appellate Division said that the lower court's dismissal on the basis of timeliness was incorrect, indicating that "it is well established that the institution of civil actions to recover damages for unlawful discriminatory practices under Executive Law §296 is governed by the three-year statute of limitations prescribed in CPLR [Civil Practice Law and Rules] §214(2)."

However, this ruling did not prove to be particularly helpful to Stoetzel as the Appellate Division also indicted that when a school district is sued, §3813(1) of the Education Law requires that a notice of claim must be presented to the district involved within three months after the accrual of the claim. Since Stoetzel conceded that he had not complied §3813(1) [nor did he ask for approval to file a late claim until after the Statute of Limitations had expired], the Appellate Division said that his complaint was "fatally defective" and dismissed his appeal.

MITIGATION OF DAMAGES FOR BACK SALARY UPON TERMINATION



MITIGATION OF DAMAGES FOR BACK SALARY UPON TERMINATION
Gross v Elmsford UFSD, 73 A.D.2d 949, [affd., 78 NY2d 13]

In Gross v Elmsford UFSD the Appellate Division, affirming a lower court's determination, held that if a teacher was terminated, the teacher had a duty to mitigate damages for back pay by accepting employment in another suitable position if such an opportunity for employment is offered by the district.

The basic question concerns the duty of a tenured teacher ultimately found to have been wrongfully terminated to mitigate his or her employer's liability for damages resulting from the unlawful dismissal.

SOME LAYOFF CONSIDERATIONS

SOME LAYOFF CONSIDERATIONS

§§80 and 80-a of the Civil Service Law deal with layoff of officers and employees in the Classified Service from the public service. Although there may be no statutory equivalents to §§80 and 80-a of the Civil Service Law insofar as incumbents of exempt and labor class positions are concerned, it is possible that a provision contained in a Taylor Law agreement or some rule, regulation or employer policy might be applicable in such cases.

In addition, layoff from positions in the unclassified service are sometimes governed by statute. For example, §2588 of the Education Law controls with respect to the layoff of tenured teachers in school districts having a population of one million or more.

As to mechanics, the Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee from his or her position pursuant to these sections of law. (see 1976 Opinions of the Attorney General 7).

Once it is decided which competitive class positions [and with respect to the State as an employer, positions in the noncompetitive class] in a layoff unit are to be abolished, two factors control for the purposes determining the individual or individuals to be laid off: the employee's tenure status [i.e., the permanent, contingent permanent, temporary, or provisional status of the worker] and his or her seniority.

It may be costly to the employer if it fails to make correct determinations concerning an employee's tenure status and seniority for the purposes of layoff. If a person ultimately found to have superior rights to retention is laid off and another individual having lesser rights to retention is continued in service instead, the Courts will usually award the individual who was laid off in error back salary and other benefits. The employer will normally be directed to reinstate the individual to his or her former position as well.

Some of the factors to consider in layoff situations are outlined below:

TENURE: Insofar as tenure is concerned, those lacking permanent status in the title [i.e., temporary employees and provisional appointees] are to be terminated before permanent employees are laid off. Permanent employees serving their probationary period are to be laid off before permanent employees in the title who have completed their probationary period. For the most part, so-called "contingent permanent employees" enjoy the same tenure rights as permanent employees when it comes to layoff.

SENIORITY: As to seniority, the basic principle in a layoff situation is "LIFO" - Last In; First Out. For the purposes of §§80 and 80-a, seniority is determined on the basis of the date of the individual's first permanent appointment followed by continuous permanent status in the classified service up to the date of his or her layoff. Such "seniority" is not always the same as the employee's "seniority in the title" or seniority under a Taylor Law agreement.

The fact that at sometime during his or her career the employee may have been provisionally promoted or been placed on leave from his or her "permanent position" or employed in a position in a different jurisdictional class will not necessarily constitute a break in the employee's "continuous permanent status" for the purposes of §§80 and 80-a. In some cases the employee's date of seniority may include service with another governmental jurisdiction.

LEAVES AND RESIGNATIONS: Separation from employment on leave of absence without pay in excess of one year would, in most cases, constitute an interruption of continuous service. Service is deemed interrupted if an individual resigns from his or her position and is not reinstated or reappointed within one year of the effective date of the resignation.

If only a few positions are involved in a layoff, it is somewhat easier to determine the specific individual or individuals to be laid off. Where large numbers of positions are abolished, especially where the layoff unit is geographically spread out, the task of determining the rights of employees based on their relative seniority is made significantly more complex.

LAYOFF UNITS: Among the elements that complicate the determination of the specific individual or individuals to be suspended or displaced as a result of a layoff are (1) the identification of the specific layoff unit(s) for layoff purposes and (2) the employee's decision with respect to exercising any "displacement," "bumping" or "retreat" rights within that layoff unit that he or she may have. With respect to the State as an employer, layoff units are set out in the Rules of the State Civil Service Commission [see 4 NYCRR 72].

MILITARY SERVICE: Military service may be a factor in determining seniority as well. A veteran who served in time of war may be entitled to have his or her "seniority date" adjusted for the purposes of layoff [§85, Civil Service Law]. Five years of service are added to an eligible disabled veteran's original date of permanent appointment; 2| years of service credit is added in the case of non-disabled veterans.

The spouse of a 100% disabled veteran may be eligible for five years of "additional" service credit in layoff situations if he or she meets the requirements set out in §85.7 of the Civil Service Law.

BLIND EMPLOYEES: A blind employee is entitled to absolute preference in retention in cases of layoff.

TAKEOVERS: Another aspect that may prove important in some situations involves determining §§80 or 80-a seniority for individuals who attained permanent status with a public employer as a result of a "takeover" of a private institution or enterprise by a governmental employer pursuant to §45 of the Civil Service Law or a similar law. Such employees may have two seniority dates and it may be necessary to consider both when determining their retention rights in a layoff.

One is their date of seniority with respect to other public employees generally, usually determined on the basis of the date of the takeover. The second is the date of their seniority with respect to their coworkers at the private enterprise at the time of the takeover. Typically such "dual seniority" rights flow from legislation that may have been adopted in connection with the takeover.

TAYLOR LAW: Another difficulty may arise as a result of an employer's efforts to comply with "layoff provisions" contained in a Taylor Law agreement. The Courts have indicated that statutory seniority rights for the purposes of layoff may not be impaired or limited by Taylor Law agreements.

In Szumigala v Hicksville Union Free School District, 539 NYS2d 83, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

The same is true with respect to Taylor Law contract provisions that affect the layoff rights vested in employees by §§80 or 80-a of the Civil Service Law. [see Plattsburgh v Local 788, 108 AD2d 1045].

AFFIRMATIVE ACTION: Layoff may also adversely impact upon affirmative action plans, interests and goals. Substantial numbers of employees employed pursuant to Affirmative Action programs are expected to be among those having the least seniority and thus having the greatest potential for layoff. Further, reinstatement following layoff is also based on seniority and here the so-called "rule of one" controls. The person having the greatest seniority willing to accept the position must be appointed to the item or the position must be kept vacant.

It appears unlikely that a layoff scheme based on a "bona fide" seniority system will be set aside by the courts solely on the basis of evidence that such a system has an adverse impact on minorities and women or impairs the gains minorities and women have attained under an Affirmative Action plan. One Federal appeals court has concluded that unless there is some evidence that layoff procedures based on seniority were adopted or applied with an intent to discriminate against protected classes, layoffs based on seniority do not violate Title VII or the post-Civil War Civil Rights statutes [42 USC 1981, 42 USC 1983] (NAACP v Detroit Police Officers Association, 52 FEP 1001).

RETIREMENT: In an effort to reduce the total number of persons to be laid off, somtimes legislation has been passed that provides certain State employees with a "retirement incentive." In such situations typically incumbents of positions identified by a State agency for elimination due to economy, consolidation or abolishment of functions, curtailment of activities or for similar reasons who are eligible and elect to retire might be given additional retirement member service credit for each year of retirement member service, not to exceed a maximum of specified limit of such additional service credit.

SOME LAYOFF CONSIDERATIONS

SOME LAYOFF CONSIDERATIONS

§§80 and 80-a of the Civil Service Law deal with layoff of officers and employees in the Classified Service from the public service. Although there may be no statutory equivalents to §§80 and 80-a of the Civil Service Law insofar as incumbents of exempt and labor class positions are concerned, it is possible that a provision contained in a Taylor Law agreement or some rule, regulation or employer policy might be applicable in such cases.

In addition, layoff from positions in the unclassified service are sometimes governed by statute. For example, §2588 of the Education Law controls with respect to the layoff of tenured teachers in school districts having a population of one million or more.

As to mechanics, the Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee from his or her position pursuant to these sections of law. (see 1976 Opinions of the Attorney General 7).

Once it is decided which competitive class positions [and with respect to the State as an employer, positions in the noncompetitive class] in a layoff unit are to be abolished, two factors control for the purposes determining the individual or individuals to be laid off: the employee's tenure status [i.e., the permanent, contingent permanent, temporary, or provisional status of the worker] and his or her seniority.

It may be costly to the employer if it fails to make correct determinations concerning an employee's tenure status and seniority for the purposes of layoff. If a person ultimately found to have superior rights to retention is laid off and another individual having lesser rights to retention is continued in service instead, the Courts will usually award the individual who was laid off in error back salary and other benefits. The employer will normally be directed to reinstate the individual to his or her former position as well.

Some of the factors to consider in layoff situations are outlined below:

TENURE: Insofar as tenure is concerned, those lacking permanent status in the title [i.e., temporary employees and provisional appointees] are to be terminated before permanent employees are laid off. Permanent employees serving their probationary period are to be laid off before permanent employees in the title who have completed their probationary period. For the most part, so-called "contingent permanent employees" enjoy the same tenure rights as permanent employees when it comes to layoff.

SENIORITY: As to seniority, the basic principle in a layoff situation is "LIFO" - Last In; First Out. For the purposes of §§80 and 80-a, seniority is determined on the basis of the date of the individual's first permanent appointment followed by continuous permanent status in the classified service up to the date of his or her layoff. Such "seniority" is not always the same as the employee's "seniority in the title" or seniority under a Taylor Law agreement.

The fact that at sometime during his or her career the employee may have been provisionally promoted or been placed on leave from his or her "permanent position" or employed in a position in a different jurisdictional class will not necessarily constitute a break in the employee's "continuous permanent status" for the purposes of §§80 and 80-a. In some cases the employee's date of seniority may include service with another governmental jurisdiction.

LEAVES AND RESIGNATIONS: Separation from employment on leave of absence without pay in excess of one year would, in most cases, constitute an interruption of continuous service. Service is deemed interrupted if an individual resigns from his or her position and is not reinstated or reappointed within one year of the effective date of the resignation.

If only a few positions are involved in a layoff, it is somewhat easier to determine the specific individual or individuals to be laid off. Where large numbers of positions are abolished, especially where the layoff unit is geographically spread out, the task of determining the rights of employees based on their relative seniority is made significantly more complex.

LAYOFF UNITS: Among the elements that complicate the determination of the specific individual or individuals to be suspended or displaced as a result of a layoff are (1) the identification of the specific layoff unit(s) for layoff purposes and (2) the employee's decision with respect to exercising any "displacement," "bumping" or "retreat" rights within that layoff unit that he or she may have. With respect to the State as an employer, layoff units are set out in the Rules of the State Civil Service Commission [see 4 NYCRR 72].

MILITARY SERVICE: Military service may be a factor in determining seniority as well. A veteran who served in time of war may be entitled to have his or her "seniority date" adjusted for the purposes of layoff [§85, Civil Service Law]. Five years of service are added to an eligible disabled veteran's original date of permanent appointment; 2| years of service credit is added in the case of non-disabled veterans.

The spouse of a 100% disabled veteran may be eligible for five years of "additional" service credit in layoff situations if he or she meets the requirements set out in §85.7 of the Civil Service Law.

BLIND EMPLOYEES: A blind employee is entitled to absolute preference in retention in cases of layoff.

TAKEOVERS: Another aspect that may prove important in some situations involves determining §§80 or 80-a seniority for individuals who attained permanent status with a public employer as a result of a "takeover" of a private institution or enterprise by a governmental employer pursuant to §45 of the Civil Service Law or a similar law. Such employees may have two seniority dates and it may be necessary to consider both when determining their retention rights in a layoff.

One is their date of seniority with respect to other public employees generally, usually determined on the basis of the date of the takeover. The second is the date of their seniority with respect to their coworkers at the private enterprise at the time of the takeover. Typically such "dual seniority" rights flow from legislation that may have been adopted in connection with the takeover.

TAYLOR LAW: Another difficulty may arise as a result of an employer's efforts to comply with "layoff provisions" contained in a Taylor Law agreement. The Courts have indicated that statutory seniority rights for the purposes of layoff may not be impaired or limited by Taylor Law agreements.

In Szumigala v Hicksville Union Free School District, 539 NYS2d 83, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

The same is true with respect to Taylor Law contract provisions that affect the layoff rights vested in employees by §§80 or 80-a of the Civil Service Law. [see Plattsburgh v Local 788, 108 AD2d 1045].

AFFIRMATIVE ACTION: Layoff may also adversely impact upon affirmative action plans, interests and goals. Substantial numbers of employees employed pursuant to Affirmative Action programs are expected to be among those having the least seniority and thus having the greatest potential for layoff. Further, reinstatement following layoff is also based on seniority and here the so-called "rule of one" controls. The person having the greatest seniority willing to accept the position must be appointed to the item or the position must be kept vacant.

It appears unlikely that a layoff scheme based on a "bona fide" seniority system will be set aside by the courts solely on the basis of evidence that such a system has an adverse impact on minorities and women or impairs the gains minorities and women have attained under an Affirmative Action plan. One Federal appeals court has concluded that unless there is some evidence that layoff procedures based on seniority were adopted or applied with an intent to discriminate against protected classes, layoffs based on seniority do not violate Title VII or the post-Civil War Civil Rights statutes [42 USC 1981, 42 USC 1983] (NAACP v Detroit Police Officers Association, 52 FEP 1001).

RETIREMENT: In an effort to reduce the total number of persons to be laid off, somtimes legislation has been passed that provides certain State employees with a "retirement incentive." In such situations typically incumbents of positions identified by a State agency for elimination due to economy, consolidation or abolishment of functions, curtailment of activities or for similar reasons who are eligible and elect to retire might be given additional retirement member service credit for each year of retirement member service, not to exceed a maximum of specified limit of such additional service credit.

December 27, 2008

Expulsion of union members by the employee organization


Expulsion of union members by the employee organization
Matter of Rutman and CSEA, 23 PERB 4602

When member of the union decided to support a rival organization, the union expelled him from membership. The employee claimed that such action was an improper practice within the meaning of §209-a.2(a) of the Civil Service Law [the Taylor Law] [Matter of Rutman and CSEA, 23 PERB 4602].

PERB's Director of Public Employment Practices and Representation, citing Matter of Schneider, 23 PERB 4567, dismissed the complaint, noting that PERB has repeatedly refused to entertain complaints about internal union discipline or other internal union affairs which neither affect an employee's terms and conditions of employment nor violate any fundamental purposes or policies of the Act."

Expulsion of union members by the employee organization


Expulsion of union members by the employee organization
Matter of Rutman and CSEA, 23 PERB 4602

When member of the union decided to support a rival organization, the union expelled him from membership. The employee claimed that such action was an improper practice within the meaning of §209-a.2(a) of the Civil Service Law [the Taylor Law] [Matter of Rutman and CSEA, 23 PERB 4602].

PERB's Director of Public Employment Practices and Representation, citing Matter of Schneider, 23 PERB 4567, dismissed the complaint, noting that PERB has repeatedly refused to entertain complaints about internal union discipline or other internal union affairs which neither affect an employee's terms and conditions of employment nor violate any fundamental purposes or policies of the Act."

DISCONTINUING EMPLOYEES' RIGHT TO FREE PARKING

DISCONTINUING EMPLOYEES' RIGHT TO FREE PARKING
Amalgamated Transit Union and NYC Transit Authority, 23 PERB 4603

An ALJ ruled that an employer that had been providing employees with free parking could unilaterally withdraw the benefit because it had retained the right to withdraw the benefit at any time.

The decision notes that the Authority had adopted rules regulations that included a provision that stated that the "granting of permission to eligible employees to park their private vehicles on Authority property is at the absolute discretion of the Authority and is subject to being withdrawn at any time." 

DISCONTINUING EMPLOYEES' RIGHT TO FREE PARKING

DISCONTINUING EMPLOYEES' RIGHT TO FREE PARKING
Amalgamated Transit Union and NYC Transit Authority, 23 PERB 4603

An ALJ ruled that an employer that had been providing employees with free parking could unilaterally withdraw the benefit because it had retained the right to withdraw the benefit at any time.

The decision notes that the Authority had adopted rules regulations that included a provision that stated that the "granting of permission to eligible employees to park their private vehicles on Authority property is at the absolute discretion of the Authority and is subject to being withdrawn at any time." 

Unilaterally discontinuing employee from accruing vacation and sick leave credits while on §207-c of the General Municipal Law


Unilaterally discontinuing employee from accruing vacation and sick leave credits while on §207-c of the General Municipal Law
Matter of CSEA and Nassau County, 23 PERB 4595

PERB ruled that it was an improper practice for the county to unilaterally discontinue allowing its employees on disability leave pursuant to §207-c of the General Municipal Law to continue to accrue vacation and sick leave credits while on such leave.

§207-c allows police officers and others covered by its provisions to continue to receive full pay while on disability leave as a result of a line-of-duty injury.

PERB'S ALJ held that as sick leave and vacation credits are mandatory subjects of negotiations and it had been a past practice to allow such accruals during §207-c leave situations, Nassau violated §209-a.1(d) of the Civil Service Law by unilaterally discontinuing the practice.


Unilaterally discontinuing employee from accruing vacation and sick leave credits while on §207-c of the General Municipal Law


Unilaterally discontinuing employee from accruing vacation and sick leave credits while on §207-c of the General Municipal Law
Matter of CSEA and Nassau County, 23 PERB 4595

PERB ruled that it was an improper practice for the county to unilaterally discontinue allowing its employees on disability leave pursuant to §207-c of the General Municipal Law to continue to accrue vacation and sick leave credits while on such leave.

§207-c allows police officers and others covered by its provisions to continue to receive full pay while on disability leave as a result of a line-of-duty injury.

PERB'S ALJ held that as sick leave and vacation credits are mandatory subjects of negotiations and it had been a past practice to allow such accruals during §207-c leave situations, Nassau violated §209-a.1(d) of the Civil Service Law by unilaterally discontinuing the practice.


NOTIFYING EMPLOYEES OF CHANGES IN WORK ASSIGNMENTS

NOTIFYING EMPLOYEES OF CHANGES IN WORK ASSIGNMENTS
Matter of the City of Buffalo, 23 PERB 3048

 PERB affirmed a decision by an ALJ that a union demand that the employer provide unit members with five days advance notice of changes in their shift or building assignment was a mandatory subject of collective bargaining.

 One of the elements to the City's objection was its claim that demand was not a mandatory subject of negotiations because it did not provide for emergency situations in which advanced notice could not reasonably be given. The ALJ concluded that on the basis of testimony and documentary evidence in the record both parties "specifically understood that emergency situations would constitute an exception to the five-day notice contained in the demand."

 PERB noted that in City of Schenectady, 21 PERB 3022, it had ruled that a similar demand was nonmandatory "because [PERB was] unable to determine from the mere language of the demand or parole evidence concerning its intent, that the demand would not interfere with the employer's right to determine staffing needs."

 In contrast to the situation in Schenectady, PERB said that in the Buffalo instance "both parties understand that the demand is intended to apply in nonemergency situations, and that alternatives, such as the payment of overtime compensation, are still available to meet emergency staffing needs. Under these circumstances the demand is mandatorily negotiable.

NOTIFYING EMPLOYEES OF CHANGES IN WORK ASSIGNMENTS

NOTIFYING EMPLOYEES OF CHANGES IN WORK ASSIGNMENTS
Matter of the City of Buffalo, 23 PERB 3048

 PERB affirmed a decision by an ALJ that a union demand that the employer provide unit members with five days advance notice of changes in their shift or building assignment was a mandatory subject of collective bargaining.

 One of the elements to the City's objection was its claim that demand was not a mandatory subject of negotiations because it did not provide for emergency situations in which advanced notice could not reasonably be given. The ALJ concluded that on the basis of testimony and documentary evidence in the record both parties "specifically understood that emergency situations would constitute an exception to the five-day notice contained in the demand."

 PERB noted that in City of Schenectady, 21 PERB 3022, it had ruled that a similar demand was nonmandatory "because [PERB was] unable to determine from the mere language of the demand or parole evidence concerning its intent, that the demand would not interfere with the employer's right to determine staffing needs."

 In contrast to the situation in Schenectady, PERB said that in the Buffalo instance "both parties understand that the demand is intended to apply in nonemergency situations, and that alternatives, such as the payment of overtime compensation, are still available to meet emergency staffing needs. Under these circumstances the demand is mandatorily negotiable.

DUTY OF THE NEGOTIATORS TO RECOMMEND THE RATIFICATION OF NEGOTIATED AGREEMENT


DUTY OF THE NEGOTIATORS TO RECOMMEND THE RATIFICATION OF NEGOTIATED AGREEMENT
Matter of Copaigue Union Free School District, 23 PERB 3046

The holding in Matter of Copaigue Union Free School District, concerns the duty of negotiators to recommend ratification of a proposed agreement.

 In this case the Union's chief negotiator, at the beginning of a unit member meeting to consider ratification of a proposed agreement, announced that the four person negotiating committee was deadlocked, 2 to 2, with respect to approving the ratification of the tentative agreement. The agreement was rejected, 19 to 4.

 The District charged that this statement violated §209-a.2(b) of the Taylor Law. The ALJ agreed with the District, holding that the disclosure of the split in the views of the team members concerning the acceptance or rejection of the tentative agreement by the chief negotiator was, at best, the expression of a "neutral position on the part of the negotiating team in contravention of its duty under the [Taylor Law] to affirmatively support ratification."

 PERB affirmed the ruling, noting that "the failure of negotiators affirmatively to support an agreement is in violation of the Taylor Law unless the negotiators had advised the other party in advance that they would not give such support." As a remedy, it ordered the union to execute a collective bargaining agreement embodying the agreements reached by the parties and reflected in a memorandum of understanding if requested to do so by the District.


DUTY OF THE NEGOTIATORS TO RECOMMEND THE RATIFICATION OF NEGOTIATED AGREEMENT


DUTY OF THE NEGOTIATORS TO RECOMMEND THE RATIFICATION OF NEGOTIATED AGREEMENT
Matter of Copaigue Union Free School District, 23 PERB 3046

The holding in Matter of Copaigue Union Free School District, concerns the duty of negotiators to recommend ratification of a proposed agreement.

 In this case the Union's chief negotiator, at the beginning of a unit member meeting to consider ratification of a proposed agreement, announced that the four person negotiating committee was deadlocked, 2 to 2, with respect to approving the ratification of the tentative agreement. The agreement was rejected, 19 to 4.

 The District charged that this statement violated §209-a.2(b) of the Taylor Law. The ALJ agreed with the District, holding that the disclosure of the split in the views of the team members concerning the acceptance or rejection of the tentative agreement by the chief negotiator was, at best, the expression of a "neutral position on the part of the negotiating team in contravention of its duty under the [Taylor Law] to affirmatively support ratification."

 PERB affirmed the ruling, noting that "the failure of negotiators affirmatively to support an agreement is in violation of the Taylor Law unless the negotiators had advised the other party in advance that they would not give such support." As a remedy, it ordered the union to execute a collective bargaining agreement embodying the agreements reached by the parties and reflected in a memorandum of understanding if requested to do so by the District.


CONTRACTING OUT JANITORIAL WORK

CONTRACTING OUT JANITORIAL WORK
In the Matter of the Middle Country Central School District, 23 PERB 3045

PERB ruled that a School District violated its Taylor Law agreement when it unilaterally subcontracted janitorial work in connection with the opening of school buildings for special events on holidays.

 The District had argued that the union had waived its right to negotiate terms and conditions of employment not specifically covered by the agreement. PERB said that the District had the burden of proving this "affirmative defense" and upheld the Administrative Law Judge's [ALJ] finding that a clear, unequivocal waiver by the union had not been demonstrated by the District.

 PERB also agreed with the ALJ's determination that "arbitration is not appropriate under the circumstances of this case, since contractual coverage of the subcontracting issue has not been established and since there is no pending grievance to which [PERB] could defer in any event."

 The District was directed not to assign nonunit personnel to open District buildings on holidays and to make unit employees whole for any lost wages due to the contracting out of unit work, with "interest at the maximum legal rate."


CONTRACTING OUT JANITORIAL WORK

CONTRACTING OUT JANITORIAL WORK
In the Matter of the Middle Country Central School District, 23 PERB 3045

PERB ruled that a School District violated its Taylor Law agreement when it unilaterally subcontracted janitorial work in connection with the opening of school buildings for special events on holidays.

 The District had argued that the union had waived its right to negotiate terms and conditions of employment not specifically covered by the agreement. PERB said that the District had the burden of proving this "affirmative defense" and upheld the Administrative Law Judge's [ALJ] finding that a clear, unequivocal waiver by the union had not been demonstrated by the District.

 PERB also agreed with the ALJ's determination that "arbitration is not appropriate under the circumstances of this case, since contractual coverage of the subcontracting issue has not been established and since there is no pending grievance to which [PERB] could defer in any event."

 The District was directed not to assign nonunit personnel to open District buildings on holidays and to make unit employees whole for any lost wages due to the contracting out of unit work, with "interest at the maximum legal rate."


PROBATIONARY TERMINATIONS


PROBATIONARY TERMINATIONS

 As a general rule, a permanent appointment to a position in the competitive class is subject to a probationary period. It is well settled law that if a probationer is terminated in good faith after completing his or her minimum probationary period but before completing the maximum period of probation for the position, such termination may be effected without notice of §75 Civil Service Law [or its equivalent] disciplinary charges and a disciplinary hearing.

 Sometimes an employee whom the appointing authority claims has been terminated during his or her probationary period challenges the termination on the grounds that he or she has completed the probationary period and thus cannot be terminated except for cause and after a hearing. In such cases the date of the probationer's permanent appointment is critical insofar a determining the date on which the employee's probationary period ended. The problems that may arise when there is some question as to the effective date of a permanent appointment is illustrated in Mallon v Parness, 171 A.D.2d 899.

 In Mallon the parties agreed on only one fact: Mallon was terminated from his position of Sergeant with the Suffern Police Department effective April 11, 1989. The effective date of his promotion to Sergeant was, however, a critical, but unresolved question.

 Mallon contended that he had been promoted to Sergeant, subject to a twenty-six week probationary period, effective July 18, 1988. He claimed that he thus completed his probationary period on January 18, 1989. He offered an affidavit from the former Mayor of Suffern supporting his claim of appointment effective July 18. The Village, on the other hand, submitted documentary evidence showing that Mallon had been promoted to the Sergeant position effective October 26, 1988 in support of its claim that he had not yet completed his probationary period when his promotion to Sergeant was terminated. To further complicate the matter, the records of the Rockland County Personnel Office show that Mallon was appointed Sergeant effective June 1, 1988.

 If either the date of appointment claimed by Mallon or the date of appointment recorded in the Personnel Office was correct, Mallon had completed the required probationary period and he was entitled to notice and hearing before he could be lawfully terminated. If Mallon's effective date of appointment was October 26, as claimed by the Village, his termination on April 11, 1989 without any notice or hearing was lawful. The Appellate Division decided that there was a material question of fact to be resolved and that summary judgment in favor of the Village by the lower court was inappropriate under the circumstances.

[EDITOR'S NOTE: The appointment date in the Civil Service Commission's or Personnel Officer's records are usually held to control.] 


Public Personnel Law E-books

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A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on

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