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February 21, 2009

TESTING PUBLIC EMPLOYEES FOR DRUGS


Policies requiring public employees to submit to tests to 
detect their use of illegal drugs has become a significant source 
of litigation in recent months. A number of cases recently 
decided suggest that the courts in New York now may be allowing 
public employers greater flexibility in mandating employees 
submit to involuntary testing for drugs, provided the employer 
satisfies certain requirements set by the courts. One such 
requirement is that the employer use accurate and reliable test 
methods. A second requirement is that the employer satisfy a 
number of due process considerations.

On the issue of the use of a satisfactory test technique, 
the Syva Emit-st Drug Detection System Tests, commonly called 
EMIT tests, were found "sufficiently accurate and reliable to 
constitute  substantial evidence"  for the purposes of  an 
administrative disciplinary hearing by one Appellate Division. 
The Court ruled that a positive EMIT test result was sufficient 
to support a finding that an employee had "ingested a controlled 
substance." The employee, a police officer, was found guilty of 
the charges filed against him and was dismissed as a result 
[Shepard v Ward, 547 NYS2d 57].

Another aspect of the Shepard case involved the basis for 
requiring Shepard to submit to a test for drugs in the first 
place. There are still a number of questions as to the standard 
to be applied with respect to requiring a public employee submit 
to involuntary drug tests. In the Shepard case the Appellate 
Division appears to have used the "reasonable suspicion standard" 
in connection with such involuntary testing of police officers. 
Other drug testing cases setting out a "reasonable suspicion" 
standard include Caruso v Ward, 520 NYS2d 551 and Patchogue-
Medford Congress of Teachers v Board of Education, 70 NY2d 57.

In another drug testing case involving police officers, 
Caruso v Ward, 72 NY2d 432, the State Court of Appeals held that 
random testing of police officers without a showing of reasonable 
suspicion was permissible under limited circumstances. In this 
case the police officers involved were members of the New York 
City Police Department's Organized Crime Control Bureau, an 
"elite organization." The "elite status" of the OCCB was deemed 
sufficient to hold its members to a higher standard of conduct 
justifying the imposition of involuntary, random testing for 
illegal drugs for such personnel.

As to what constitutes "reasonable suspicion, in the Shepard 
case, the Appellate Division held that "evidence of glassy, 
bloodshot and watery eyes and a history of suspicious mood swings 
coupled with anonymous tips that named [Shepard] as one of 
several officers using drugs" provided a basis for reasonable 
suspicion. This, said the Court, was enough to support an order 
requiring the officer to submit to an involuntary test for drugs. 
The Court upheld Shepard's dismissal following his being found 
guilty of the charges filed against him, indicating that it did 
not view such a penalty as excessive under the rationale of Pell 
v Board of Education, 34 NY2d 222.

In other cases, the Courts seemed to be departing from the 
"reasonable suspicion test." In a case involving the involuntary 
testing of a correction officer for drug usage, McKenzie v 
Jackson, 547 NYS2d 120, the Appellate Division, 2nd Department 
found  that involuntary urinalysis testing of  probationary 
correction  officers  did  not violate  the  Constitutional 
prohibition against unreasonable searches and seizures.

The decision notes that the examination announcement for the 
position  contained a statement indicating that  Correction 
Officers  could be required to participate in testing for 
substance abuse on a periodic basis during their probationary 
period. The announcement also stated that "evidence of substance 
abuse  may  lead to disqualification from  appointment  or 
termination from employment." In addition, the agency's drug 
testing policy was read to employees and posted on bulletin 
boards.

When McKenzie tested positive for cannabis following a random 
test for drugs, he was told "that his service as a probationary 
correction officer was being terminated." The Appellate Division 
rejected McKenzie's argument that he should be reinstated to his 
former position because "the random urine test constituted an 
unlawful search ... since it was not based upon reasonable 
suspicion."

The Court said that in the Patchogue-Medford case the Court 
of Appeals recognized an exception to the striking down of 
mandatory drug-testing programs for probationers under both the 
Federal and the State Constitutions. The high court said that 
"random searches conducted by the State without reasonable 
suspicion are closely scrutinized, and generally only permitted 
when  the  privacy interests implicated are  minimal,  the 
government's interest is substantial, and safeguards are provided 
to insure that the individual's reasonable expectation of privacy 
is not subjected to unregulated discretion."

In McKenzie's case the Appellate Division indicated the employer 
met the following five standards in the manner indicated:

(1) NOTICE  - the examination announcement gave appropriate 
notice that probationers could be required to submit to period 
substance abuse testing;

(2) DURATION - the random testing for drugs was limited 
to only that period during which the employee was a probationer;

(3) PRIVACY - appointees were aware of the scrutiny to 
which the employer subjects probationary employee and therefore a 
probationer's expectation of privacy is corresponding lower than 
that of a tenured employee;

(4) EMPLOYER'S INTEREST - the employer involved, a Department 
of Corrections, has a substantial interest in the security of its 
facilities and in ensuring that probationary correction officers 
who abuse drugs to not gain tenure; and

(5) EXERCISE OF DISCRETION -  the promulgation, announcement 
and posting of the employer's guidelines concerning the use of 
illegal drugs, drug testing policies and the impact of a finding 
that  a probationer was using illegal drugs satisfied the 
requirement the employer not possess "unregulated discretion" in 
such matters.

The Appellate Division concluded that under the relevant 
facts of this case, "the specific requirements for finding that 
the random urinalysis drug-testing program falls within the 
narrow expectation identified in [the Patchogue-Medford case] 
have been satisfied."

While the McKenzie case dealt only with the random drug 
testing of probationers, in Seelig v Koehler, 546 NYS2d 828, New 
York  City Correction Officers challenged that Department's 
testing of all correction officers, both probationers and tenured 
officers, under a random drug testing program.

Under the NYCCD policy,  correction officers would be 
selected for testing at random and could expect to be required to 
submit to such tests once every five or six years. Failure or 
refusal to be tested would result in termination if a probationer 
or dismissal after notice and hearing if a tenure employee.

In Seelig the Appellate Division, 1st Department, decided 
that drug testing procedures modeled after those adopted by the 
U.S. Department of Health and Human Resources met constitutional 
requirements [see National Treasury Employees Union v Von Raab, 
109 S.Ct. 1384]. Again, the Court said that the Department of 
Corrections' "compelling interest in deterring and detecting drug 
use  among  correction officers,  whose diminished  privacy 
expectations  were  outweighed by that interest,  and  its 
promulgation of detailed regulations which, with respect to such 
drug testing, are sufficient to prevent unbridled administrative 
discretion  and to preserve privacy to the maximum extent 
possible."

The Appellate Division specifically noted that "the record 
here amply demonstrates that reasonable-suspicion testing has not 
adequately met the Department's compelling needs" to deter drug 
abuse by its correction officers. The Court also suggested that 
the standards to be used in such determinations might be differ 
depending on the type of public employment involved when it noted 
that "while the balancing of interests may justify society's 
acceptance of the risk of ...  undetectable drug impairment with 
respect to some classes of government employees, in the case of 
correction officers the risks are too great."

The Court concluded that in balancing the privacy interests 
of correction officers against the compelling need for periodic 
drug- testing, the minimal intrusiveness of the challenged 
testing  procedure will not "seriously erode the officers' 
reasonable expectations of privacy" as correction officers are 
traditionally among those most heavily regulated public employees 
and are also among those who accept the greatest intrusions upon 
their privacy.

TESTING PUBLIC EMPLOYEES FOR DRUGS


Policies requiring public employees to submit to tests to 
detect their use of illegal drugs has become a significant source 
of litigation in recent months. A number of cases recently 
decided suggest that the courts in New York now may be allowing 
public employers greater flexibility in mandating employees 
submit to involuntary testing for drugs, provided the employer 
satisfies certain requirements set by the courts. One such 
requirement is that the employer use accurate and reliable test 
methods. A second requirement is that the employer satisfy a 
number of due process considerations.

On the issue of the use of a satisfactory test technique, 
the Syva Emit-st Drug Detection System Tests, commonly called 
EMIT tests, were found "sufficiently accurate and reliable to 
constitute  substantial evidence"  for the purposes of  an 
administrative disciplinary hearing by one Appellate Division. 
The Court ruled that a positive EMIT test result was sufficient 
to support a finding that an employee had "ingested a controlled 
substance." The employee, a police officer, was found guilty of 
the charges filed against him and was dismissed as a result 
[Shepard v Ward, 547 NYS2d 57].

Another aspect of the Shepard case involved the basis for 
requiring Shepard to submit to a test for drugs in the first 
place. There are still a number of questions as to the standard 
to be applied with respect to requiring a public employee submit 
to involuntary drug tests. In the Shepard case the Appellate 
Division appears to have used the "reasonable suspicion standard" 
in connection with such involuntary testing of police officers. 
Other drug testing cases setting out a "reasonable suspicion" 
standard include Caruso v Ward, 520 NYS2d 551 and Patchogue-
Medford Congress of Teachers v Board of Education, 70 NY2d 57.

In another drug testing case involving police officers, 
Caruso v Ward, 72 NY2d 432, the State Court of Appeals held that 
random testing of police officers without a showing of reasonable 
suspicion was permissible under limited circumstances. In this 
case the police officers involved were members of the New York 
City Police Department's Organized Crime Control Bureau, an 
"elite organization." The "elite status" of the OCCB was deemed 
sufficient to hold its members to a higher standard of conduct 
justifying the imposition of involuntary, random testing for 
illegal drugs for such personnel.

As to what constitutes "reasonable suspicion, in the Shepard 
case, the Appellate Division held that "evidence of glassy, 
bloodshot and watery eyes and a history of suspicious mood swings 
coupled with anonymous tips that named [Shepard] as one of 
several officers using drugs" provided a basis for reasonable 
suspicion. This, said the Court, was enough to support an order 
requiring the officer to submit to an involuntary test for drugs. 
The Court upheld Shepard's dismissal following his being found 
guilty of the charges filed against him, indicating that it did 
not view such a penalty as excessive under the rationale of Pell 
v Board of Education, 34 NY2d 222.

In other cases, the Courts seemed to be departing from the 
"reasonable suspicion test." In a case involving the involuntary 
testing of a correction officer for drug usage, McKenzie v 
Jackson, 547 NYS2d 120, the Appellate Division, 2nd Department 
found  that involuntary urinalysis testing of  probationary 
correction  officers  did  not violate  the  Constitutional 
prohibition against unreasonable searches and seizures.

The decision notes that the examination announcement for the 
position  contained a statement indicating that  Correction 
Officers  could be required to participate in testing for 
substance abuse on a periodic basis during their probationary 
period. The announcement also stated that "evidence of substance 
abuse  may  lead to disqualification from  appointment  or 
termination from employment." In addition, the agency's drug 
testing policy was read to employees and posted on bulletin 
boards.

When McKenzie tested positive for cannabis following a random 
test for drugs, he was told "that his service as a probationary 
correction officer was being terminated." The Appellate Division 
rejected McKenzie's argument that he should be reinstated to his 
former position because "the random urine test constituted an 
unlawful search ... since it was not based upon reasonable 
suspicion."

The Court said that in the Patchogue-Medford case the Court 
of Appeals recognized an exception to the striking down of 
mandatory drug-testing programs for probationers under both the 
Federal and the State Constitutions. The high court said that 
"random searches conducted by the State without reasonable 
suspicion are closely scrutinized, and generally only permitted 
when  the  privacy interests implicated are  minimal,  the 
government's interest is substantial, and safeguards are provided 
to insure that the individual's reasonable expectation of privacy 
is not subjected to unregulated discretion."

In McKenzie's case the Appellate Division indicated the employer 
met the following five standards in the manner indicated:

(1) NOTICE  - the examination announcement gave appropriate 
notice that probationers could be required to submit to period 
substance abuse testing;

(2) DURATION - the random testing for drugs was limited 
to only that period during which the employee was a probationer;

(3) PRIVACY - appointees were aware of the scrutiny to 
which the employer subjects probationary employee and therefore a 
probationer's expectation of privacy is corresponding lower than 
that of a tenured employee;

(4) EMPLOYER'S INTEREST - the employer involved, a Department 
of Corrections, has a substantial interest in the security of its 
facilities and in ensuring that probationary correction officers 
who abuse drugs to not gain tenure; and

(5) EXERCISE OF DISCRETION -  the promulgation, announcement 
and posting of the employer's guidelines concerning the use of 
illegal drugs, drug testing policies and the impact of a finding 
that  a probationer was using illegal drugs satisfied the 
requirement the employer not possess "unregulated discretion" in 
such matters.

The Appellate Division concluded that under the relevant 
facts of this case, "the specific requirements for finding that 
the random urinalysis drug-testing program falls within the 
narrow expectation identified in [the Patchogue-Medford case] 
have been satisfied."

While the McKenzie case dealt only with the random drug 
testing of probationers, in Seelig v Koehler, 546 NYS2d 828, New 
York  City Correction Officers challenged that Department's 
testing of all correction officers, both probationers and tenured 
officers, under a random drug testing program.

Under the NYCCD policy,  correction officers would be 
selected for testing at random and could expect to be required to 
submit to such tests once every five or six years. Failure or 
refusal to be tested would result in termination if a probationer 
or dismissal after notice and hearing if a tenure employee.

In Seelig the Appellate Division, 1st Department, decided 
that drug testing procedures modeled after those adopted by the 
U.S. Department of Health and Human Resources met constitutional 
requirements [see National Treasury Employees Union v Von Raab, 
109 S.Ct. 1384]. Again, the Court said that the Department of 
Corrections' "compelling interest in deterring and detecting drug 
use  among  correction officers,  whose diminished  privacy 
expectations  were  outweighed by that interest,  and  its 
promulgation of detailed regulations which, with respect to such 
drug testing, are sufficient to prevent unbridled administrative 
discretion  and to preserve privacy to the maximum extent 
possible."

The Appellate Division specifically noted that "the record 
here amply demonstrates that reasonable-suspicion testing has not 
adequately met the Department's compelling needs" to deter drug 
abuse by its correction officers. The Court also suggested that 
the standards to be used in such determinations might be differ 
depending on the type of public employment involved when it noted 
that "while the balancing of interests may justify society's 
acceptance of the risk of ...  undetectable drug impairment with 
respect to some classes of government employees, in the case of 
correction officers the risks are too great."

The Court concluded that in balancing the privacy interests 
of correction officers against the compelling need for periodic 
drug- testing, the minimal intrusiveness of the challenged 
testing  procedure will not "seriously erode the officers' 
reasonable expectations of privacy" as correction officers are 
traditionally among those most heavily regulated public employees 
and are also among those who accept the greatest intrusions upon 
their privacy.

February 15, 2009

REVIEWING TERMINATIONS OF PROBATIONARY EMPLOYEES


The basic policy of the State Civil Service Commission [and that of  many municipal commissions and personnel officers] with respect to its review of probationary terminations of State employees is that it will review appeals filed by a probationer who  has been terminated only containing allegations of a procedural defect in a Department's or an Agency's administration of the Commission's probationary rules [see 4 NYCRR 4.5]. 

The State Commission, however, "does not review the merits of an appointing authority's decision to terminate a probationer and, therefore, does not accept appeals challenging the accuracy of an employer's evaluation of probationary performance."

In Hawkes v Bennett,  155 A.D.2d , the Appellate Division rejected an appeal contending that the State Commission should assume jurisdiction over a claim challenging the termination of a probationary employee. Hawkes stated that her former agency, the Office of Mental Hygiene (OMH), violated the Commission's rules [Section 4.5(a)(5)(iii)] by "failing to carefully observe her conduct and performance and to advise her of her status and progress from time to time during the probationary period."

The Commission investigated her claim and determined that OMH had substantially complied with the rule and refused to assume jurisdiction over Hawkes' appeal. The Appellate Division upheld the Commission's rejection of the appeal. It said that although the Commission had discretion under Section 6(3) of the Civil Service Law to consider Hawkes' appeal, Hawkes did not have an enforceable legal right to compel the Commission to assume jurisdiction over her claim.

As to Hawkes' argument that the State Personnel Management Manual Advisory Memorandum 86-02 provided her with a right to appeal the merits of her termination, the Court said that the clear wording of the Memorandum supported the Commission's position that 86-02 was not intended to create a right of appeal but, rather, to advise State Departments and Agencies of the Commission's existing discretion to exercise jurisdiction in appropriate cases.

As to the question of the remedies available to a person who wishes to challenge the merits of his or her probationary termination,  the Appellate Division said that it was not "persuaded that the [Civil Service Commission's] declination of jurisdiction foreclosed [Hawkes'] right to adequate judicial review." It said that Hawkes was entitled to but did not commence a CPLR Article 78 proceeding against OMH within four months of notice of termination or the effective date of discharge, if later. This suggests that the Court would have permitted Hawkes to challenge the merits of OHM's decision regarding the quality of her services as a probationary employee and the reasons for her termination. 

This ruling makes it clear that a person who has been terminated because he or she has been found not to have satisfactorily completed the required probationary period may challenge any alleged procedural defect in the conduct of his or her probationary period by filing a timely appeal with the Civil Service Commission. However, such a person must initiate a timely Article 78 proceeding if he or she wishes to challenge the merits of his or her termination.

N.B. The State Civil Service Commission recently enacted an amendment to 4 NYCRR 4.5 dealing with the commencement of  a State employee's probationary period upon  permanent appointment, promotion or transfer. The stated purpose of the amendment is "to assure a uniform, statewide rule regarding the commencement of probationary terms pursuant to 4 NYCRR 4.5 and [to] reaffirm the proper interpretation and application of such rule." The amendment took effect on December 6, 1989.

REVIEWING TERMINATIONS OF PROBATIONARY EMPLOYEES


The basic policy of the State Civil Service Commission [and that of  many municipal commissions and personnel officers] with respect to its review of probationary terminations of State employees is that it will review appeals filed by a probationer who  has been terminated only containing allegations of a procedural defect in a Department's or an Agency's administration of the Commission's probationary rules [see 4 NYCRR 4.5]. 

The State Commission, however, "does not review the merits of an appointing authority's decision to terminate a probationer and, therefore, does not accept appeals challenging the accuracy of an employer's evaluation of probationary performance."

In Hawkes v Bennett,  155 A.D.2d , the Appellate Division rejected an appeal contending that the State Commission should assume jurisdiction over a claim challenging the termination of a probationary employee. Hawkes stated that her former agency, the Office of Mental Hygiene (OMH), violated the Commission's rules [Section 4.5(a)(5)(iii)] by "failing to carefully observe her conduct and performance and to advise her of her status and progress from time to time during the probationary period."

The Commission investigated her claim and determined that OMH had substantially complied with the rule and refused to assume jurisdiction over Hawkes' appeal. The Appellate Division upheld the Commission's rejection of the appeal. It said that although the Commission had discretion under Section 6(3) of the Civil Service Law to consider Hawkes' appeal, Hawkes did not have an enforceable legal right to compel the Commission to assume jurisdiction over her claim.

As to Hawkes' argument that the State Personnel Management Manual Advisory Memorandum 86-02 provided her with a right to appeal the merits of her termination, the Court said that the clear wording of the Memorandum supported the Commission's position that 86-02 was not intended to create a right of appeal but, rather, to advise State Departments and Agencies of the Commission's existing discretion to exercise jurisdiction in appropriate cases.

As to the question of the remedies available to a person who wishes to challenge the merits of his or her probationary termination,  the Appellate Division said that it was not "persuaded that the [Civil Service Commission's] declination of jurisdiction foreclosed [Hawkes'] right to adequate judicial review." It said that Hawkes was entitled to but did not commence a CPLR Article 78 proceeding against OMH within four months of notice of termination or the effective date of discharge, if later. This suggests that the Court would have permitted Hawkes to challenge the merits of OHM's decision regarding the quality of her services as a probationary employee and the reasons for her termination. 

This ruling makes it clear that a person who has been terminated because he or she has been found not to have satisfactorily completed the required probationary period may challenge any alleged procedural defect in the conduct of his or her probationary period by filing a timely appeal with the Civil Service Commission. However, such a person must initiate a timely Article 78 proceeding if he or she wishes to challenge the merits of his or her termination.

N.B. The State Civil Service Commission recently enacted an amendment to 4 NYCRR 4.5 dealing with the commencement of  a State employee's probationary period upon  permanent appointment, promotion or transfer. The stated purpose of the amendment is "to assure a uniform, statewide rule regarding the commencement of probationary terms pursuant to 4 NYCRR 4.5 and [to] reaffirm the proper interpretation and application of such rule." The amendment took effect on December 6, 1989.

February 13, 2009

COURT REVIEW OF COMPLAINTS DISMISSED FOR ADMINISTRATIVE CONVENIENCE

   
As a general rule, Section 297.9 of the Executive Law 
prohibits the commencement of an action in State court based on 
the same allegedly discriminatory acts that have been the subject 
of a complaint filed with the State Division of Human Rights. 
There is an exception to this rule, however. It is possible to 
file an action in State court even if the same allegations were 
the subject of a complaint filed with the Division if the 
Division  has  dismissed the complaint filed with it  for 
"administrative convenience."

The application of this exception was important in Miller v 
International Telephone and Telegraph Corp., 545 NYS2d 733. 
Miller had charged ITT with unlawful discrimination on the basis 
of age. He first filed a complaint with the Division under the 
State's Human Rights Law. About a year later he filed an action 
in  Federal court under the Federal Age Discrimination in 
Employment Act [29 USC 621].* 

Ultimately Miller's Federal action was dismissed on the grounds 
that it was untimely filed. Following this,  the Division 
dismissed Miller's complaint, which was still pending before it, 
"on the grounds of administrative convenience" so as to permit 
him "to pursue a remedy in State courts" under Section 296 of the 
Executive Law. When ITT attempted to have the case dismissed, the 
Supreme Court justice assigned the case denied its motion. The 
Appellate Division affirmed the lower court's ruling. It said 
that it has been ruled that "Section 297.9 provides a stay by 
prohibiting the commencement of suit when a complaint has been 
filed with the Division." Accordingly, the Statute of Limitations 
with  respect to filing a law suit is tolled until  the 
administrative proceeding is terminate. 

Thus, it seems permissible for a person to file a law suit in 
State Court based on the same allegations as he or she set out in 
a complaint filed with the Division if his or her complaint has 
been dismissed by the Division on the basis of administrative 
convenience. Further, it appears that if such a suit is filed 
within the one year period allowed for bringing such an action, 
adjusted for the time during which the complaint was pending 
before the Division, the Courts will view it as having been 
timely filed. However, if the Division has made a determination 
regarding the complaint on the merits, the individual may not 
commence a law suit based on the same complaint in a State court. 
In such cases the Division's determination is subject to review 
by the Appellate Division if a party elects to appeal the 
decision.

* Although the State's Human Rights Law prohibits a 
person from simultaneously prosecuting a complaint base on the 
same allegations with the Division and in a State Court, Section 
297.9 does not serve as a bar to the simultaneous prosecution of 
a complaint with the Division and with a Federal Court.]

COURT REVIEW OF COMPLAINTS DISMISSED FOR ADMINISTRATIVE CONVENIENCE

   
As a general rule, Section 297.9 of the Executive Law 
prohibits the commencement of an action in State court based on 
the same allegedly discriminatory acts that have been the subject 
of a complaint filed with the State Division of Human Rights. 
There is an exception to this rule, however. It is possible to 
file an action in State court even if the same allegations were 
the subject of a complaint filed with the Division if the 
Division  has  dismissed the complaint filed with it  for 
"administrative convenience."

The application of this exception was important in Miller v 
International Telephone and Telegraph Corp., 545 NYS2d 733. 
Miller had charged ITT with unlawful discrimination on the basis 
of age. He first filed a complaint with the Division under the 
State's Human Rights Law. About a year later he filed an action 
in  Federal court under the Federal Age Discrimination in 
Employment Act [29 USC 621].* 

Ultimately Miller's Federal action was dismissed on the grounds 
that it was untimely filed. Following this,  the Division 
dismissed Miller's complaint, which was still pending before it, 
"on the grounds of administrative convenience" so as to permit 
him "to pursue a remedy in State courts" under Section 296 of the 
Executive Law. When ITT attempted to have the case dismissed, the 
Supreme Court justice assigned the case denied its motion. The 
Appellate Division affirmed the lower court's ruling. It said 
that it has been ruled that "Section 297.9 provides a stay by 
prohibiting the commencement of suit when a complaint has been 
filed with the Division." Accordingly, the Statute of Limitations 
with  respect to filing a law suit is tolled until  the 
administrative proceeding is terminate. 

Thus, it seems permissible for a person to file a law suit in 
State Court based on the same allegations as he or she set out in 
a complaint filed with the Division if his or her complaint has 
been dismissed by the Division on the basis of administrative 
convenience. Further, it appears that if such a suit is filed 
within the one year period allowed for bringing such an action, 
adjusted for the time during which the complaint was pending 
before the Division, the Courts will view it as having been 
timely filed. However, if the Division has made a determination 
regarding the complaint on the merits, the individual may not 
commence a law suit based on the same complaint in a State court. 
In such cases the Division's determination is subject to review 
by the Appellate Division if a party elects to appeal the 
decision.

* Although the State's Human Rights Law prohibits a 
person from simultaneously prosecuting a complaint base on the 
same allegations with the Division and in a State Court, Section 
297.9 does not serve as a bar to the simultaneous prosecution of 
a complaint with the Division and with a Federal Court.]

February 12, 2009

PARITY PROVISIONS IN TAYLOR LAW AGREEMENTS

Is it lawful for the parties to agree that salary increases to be given to  members of one negotiating union shall be based on salary adjustments negotiated on behalf of members of a different negotiating unit? Such a provision referred to as a "parity clause."

In an article published in the Fordham Urban Law Journal Volume 11, Number 1 Article 5, The Negotiability of Parity Agreements in Public Sector Collective Bargaining, Susan P. Kass, Esq. observed that "Collective Bargaining Parity clauses historically have been included in collective negotiation agreements between municipal employers and public employee unions, particularly those involving police and firefighter's unions."*

PERB's Counsel was asked for an informal opinion concerning whether such an arrangement was prohibited under the Taylor Law.

According to the inquiry, the employer involved had two negotiating units. A negotiated agreement covering employees in one negotiating unit set a "baseline" salary keyed to a step in the salary schedule contained in Taylor Law agreement covering employees in the other negotiating unit and the salary increase for unit members was determined as a percentage of the baseline.

The opinion** stated that PERB had reconsidered its earlier position that a parity clause is prohibited in all circumstances and is now of the view that "[A] parity clause is subject to nullification but is not prohibited per se."

The opinion indicates that PERB's rationale for concluding that parity agreements are subject to nullification is that such agreements may make it more difficult for the union which has not sought parity to negotiate benefits for the employees that it represents.

Another reason given to support PERB's position that such a provision was subject to nullification is that these types of agreements impose a duty on the union that has not sought parity to bargain on behalf of the "parity-seeking unit."

* Ms. Kass' article is posted on the Internet at: 
https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1200&context=ulj

** Opinion of Counsel, 22 PERB 5008.

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Please Note:

Subsequent court and administrative rulings, or additions or amendments to laws, rules and regulations may have modified or clarified or vacated or reversed or otherwise have had an impact on 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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