TO SEARCH this database type in a word or phrase in the box in the upper left and any material containing the word or phrase will be displayed for your review.
State of New York vs. COVID-19 - Governor Andrew M. Cuomo periodically updates New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The latest reports of the number of new cases, the percentage of tests that were positive and many other relevant data points concerning COVID-19 are available at forward.ny.gov.
N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.
November 18, 2010
Circuit Court of Appeals rules that hearsay testimony is admissible to support the issuance of a preliminary injunction
The Circuit Court of Appeals affirmed a District Court ruling enjoining the City of New York and the New York City Police Department from investigating and disciplining a New York City police officer based upon testimony or participation in a pending lawsuit, concluding that hearsay testimony is admissible to support the issuance of a preliminary injunction, and the district court did not abuse its discretion in granting preliminary injunctive relief based in part on such evidence.
About 4300 current and former New York City police sergeants sued the City, claiming “systematic violations of their overtime rights under the Fair Labor Standards Act of 1938 (“FLSA”).*
One plaintiff, Sergeant Paul Capotosto, Citywide Secretary of the Sergeants Benevolent Association, testified at the preliminary injunction hearing, reciting at least a dozen phone calls he received from worried plaintiffs in the lawsuit, who expressed concern to him that the NYPD was retaliating against them for their participation in the lawsuit.
Another plaintiff, Sergeant Edward Scott, alleged that his retirement was “administratively deferred” pending resolution of an unspecified “disciplinary matter” some months later. It subsequently “came to light that [Scott] was under investigation for testimony he had given during his deposition.” Sergeant Scott stated that, at the time, “I believed that if I withdrew from this FLSA lawsuit, the City would close its investigation into my deposition testimony.”
The Circuit court ruled that the district court did not abuse its discretion in finding either that Mullins, the named plaintiff in the action, is likely to succeed on the merits of their FLSA retaliation claim, or that Mullins established that irreparable harm is likely to flow from the putative FLSA violation absent injunctive relief and dismissed the Department’s arguments, concluding “that they are without merit.”
* N.B. This case may renew the question “Do federal courts have jurisdiction to consider alleged violations of the FLSA in actions brought against state and local governments?”
A decision by the U.S. Supreme Court holds that the federal courts have no authority to enforce the FLSA on non-federal governments under the 11th Amendment, which limits federal judicial power ["the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State”].
The development of the jurisdiction of federal courts to consider alleged violations of the FLSA involving State and local governments is somewhat convoluted.
In 1996 the U.S. Supreme Court ruled that Congress cannot expand the authority of the judiciary beyond the constraints of the Eleventh Amendment by adopting laws pursuant to the Indian Commerce Clause. [Seminole Tribe v Florida, 116 S. Ct. 1114].
This decision profoundly affected FLSA issues because the Fair Labor Standards Act was enacted by Congress pursuant the Interstate Commerce Clause, which the Supreme Court said was indistinguishable from the Indian Commerce Clause.
The Supreme Court next indicated it was overruling its decision in Pennsylvania v Union Gas, 491 US 1, an "Interstate Commerce Clause case," on the grounds that it had been "wrongly decided."
Following the Seminole ruling, a number of federal courts decided that federal courts lack power to enforce the provisions of the FLSA in a law suit against a State or a political subdivision of that State. Distinguishing between the State as the employer and political subdivisions of the State as the employer, however, the Supreme Court may have signaled a retreat from this expansive view.
In a footnote in Auer v Robbins, 519 U.S. 452, the Supreme Court commented that insofar as the Eleventh Amendment is implicated, a board of municipal police commissioners "does not share the immunity of the State of Missouri".
The Mullins decision is posted on the Internet at:
Public Personnel Law E-books
The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on https://booklocker.com/books/5215.html
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 http://booklocker.com/books/7401.html
The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html
SELECTED REFERENCES and BLOGS
- A Handbook addressing disciplining public employees
- A Handbook focusing on imposing reasonable disciplinary penalties
- A Handbook focusing on layoff and reinstatement
- A Handbook on Disability Benefits for public employees
- A sample personnel handbook
- Blogging Civil Rights Law
- Blogging Constitutional Law
- Blogging Disability Law
- Blogging Education Law
- Blogging Human Rights Law
- Blogging Legal Information
- Blogging Military Law
- Blogging public libraries
- Challenging Adverse Personnel Decisions
- COVID-19 - New York State maps and data
- Delaware Employment Law Blog
- Gotham schools newsroom - A NYC school news blog
- New York City ERS blog - by John Murphy
- NY Municipalities - NYMUNIBLOG
- St. Lawrence County Civil Service Web Site
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.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, REMEMBER THAT CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG.
THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
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 in this blog is presented with the understanding that the publisher, editor, contributors or members of the staff are not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.