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October 28, 2011

Withholding a public employee’s salary increase


Withholding a public employee’s salary increase
Mukhopadhyay v City of New York, 296 A.D.2d 363

An employer tells an employee that he or she will not be given an "annual increment" or other form of a salary advancement or increase. Does this constitute disciplinary action, triggering the employee's right to a pre-determination "notice and hearing?" This was the significant issue in the Mukhopadhyay case.

When the City of New York decided not to award Bimal Mukhopadhyay "a managerial pay increase," Mukhopadhyay sued, contending that he was entitled to a "pre-determination" hearing pursuant to Section 75 of the Civil Service Law.

The Appellate Division rejected Mukhopadhyay's theory that the denial of his "managerial pay increase" by his employer constituted a disciplinary action, finding that:Since Mukhopadhyay had not been demoted, dismissed or otherwise subjected to disciplinary action, his claim that he was entitled to a pre-determination hearing pursuant to Civil Service Law §75(1) is incorrect. 

This ruling is consistent with the Rules of the New York State Civil Service Commission providing for the annual performance rating of certain individuals employed by the State as an employer [4 NYCRR 35].

4 NYCRR 35 requires that appointing authorities prepare an annual summary judgment - satisfactory or unsatisfactory -- of each employee's performance and conduct. This evaluation is then used to determine the individual's eligibility for any annual salary increment otherwise payable and eligibility for promotion. 

In addition, 4 NYCRR 35 requires the appointing authority to notify each of its employees in the competitive and noncompetitive classes of his or her performance rating, provide the employee an opportunity to review his or her rating with the individual's supervisor, and give to each employee whose performance is rated as unsatisfactory a copy of the rating. 

The Rule states that: Any annual salary increment to which an employee who has been rated unsatisfactory is otherwise entitled is to be withheld.

Although the 4 NYCRR 35 describes procedures for appealing an unsatisfactory performance evaluation, nothing in the Rule suggests that such an evaluation is disciplinary in nature and thus it does not seem that an unsatisfactory performance rating should be subject to notice and hearing requirements set out in Section 75.

Provisions similar to 4 NYCRR 35 have been adopted by a number of municipal civil service 

NEW YORK PUBLIC PERSONNEL LAW ELECTRONIC HANDBOOKS

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State. For more information click on http://booklocker.com/books/5215.html

A Reasonable Disciplinary Penalty Under the Circumstances - Determining an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

Disability Benefits for fire, police and other public sector personnel - Addresses retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html

The Layoff, Preferred List and Reinstatement Manual -Focusing on relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

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Text prepared by Harvey Randall except as otherwise noted. Randall, former Principal Attorney, New York State Department of Civil Service, also served as Director of Personnel for the State University System; as Director of Research, Governor’s Office of Employee Relations; and as Staff Judge Advocate General, New York Guard. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School.