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December 22, 2011

Court of Appeals rules on seniority for layoff


Court of Appeals rules on seniority for layoff
Hondzinski v. County of Erie, 57 NY2d 715

As more and more jurisdictions cut back in personnel, seniority for layoff purposes becomes a critical issue. The Court of Appeals recently decided a case involving the crediting of seniority upon the “grandfathering” of an employee into the competitive class.

The decision indicates that when a “civil” deputy sheriff position was, by local law, placed in the competitive class* an incumbent who had been in the position for more than one year proceeding the change in jurisdictional classification was entitled to seniority for layoff purposes from the date when the position was placed in the competitive class.

Hondzinski, however, had claimed that his seniority should run from the date of his original appointment as a civil deputy in 1960.

Actually there would be two dates for seniority for the purposes of layoff in this type of situation.

The “1973” date would control in determining seniority for the entire work force, thereby protecting the rights of all competitive class employees.

The original date of appointment of Hondzinski as a civil deputy could be used to determine seniority for the “grandfathered” deputy sheriffs “as among themselves.”

Section 45 of the Civil Service Law provides for such a dual test with respect to the employees of a private employer upon its acquisition by government.

 If a layoff affects a “1973 grandfathered” deputy sheriff, then a further determination as to the least senior of these “1973 deputies” based on their original date of appointment as civil deputies could be made for the purposes of determining which “1973 deputy” has greater rights “as among themselves” to retention in the face of a layoff. In effect, there would be a “seniority list” within a “seniority list.”

* So-called Flaherty deputy sheriffs -- civil deputies, as distinguished from "criminal deputies" --had been exempted from the civil service system on the grounds that the sheriff who had hired them was personally liable for any misconduct or negligence of his or her civil deputies. The term "Flaherty deputies" was applied to such employees of the sheriff following a decision by the Court of Appeals holding that the fact that the sheriff was personally liable for the acts of the civil deputies required their exemption from the civil service system of selection, appointment and promotion (Flaherty v Milliken, 193 NY 564). The New York State Civil Service Department decided that Flaherty no longer applied following a 1990 amendment to the State Constitution that deleted the words "The county shall never be made responsible for the acts of the sheriff." As the amendment allowed a county to assume liability for the acts of a sheriff's civil deputies, the department reasoned that where the county assumed such liability the rationale for the exemption of Flaherty deputies from the civil service law was no longer valid. Accordingly, it was determined that effective January 1, 1990, Civil Service examinations would be required for the appointment and promotion of these civil deputies.

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. 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 posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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