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December 22, 2011

Do it now grieve it later rule applied in a challenge to an administrative decision


Do it now grieve it later rule applied in a challenge to an administrative decision
Hurwitz v. Regan , 90 A.D.2d 659, Motion for leave to appeal denied, 58 N.Y.2d 609

As a general rule in labor relations, when there is a supervisor/employee difference of opinion concerning an assignment, unless a dangerous situation exists, the employee should “do it now; grieve it later.”

Apparently the same rule will apply in connection with some administrative decisions as well.

When a former member of the New York State Employees’ Retirement System [ERS] was re-employed by a public employer, he sought to reinstate his former Tier I ERS membership.

ERS said no, explaining that he had cease to be a member of ERS in 1970 and had to rejoin as a Tier II member. He finally joined the System as a Tier II member in late 1975.

When the Retirement and Social Security Law was amended in 1977 (C. 973; L. 1977) to allow Tier II members who had been Tier I members who “rejoined within five years” to get back into Tier I, the employee again attempted to regain his Tier I membership. He, again, was refused by ERS and sued.

The Appellate Division noted that the employee had not rejoined ERS until more than five years had passed.

Had he filed a Tier II application in 1974 while contesting the ERS determination concerning the denial of his application for Tier I status, presumably he would have met the requirement of the 1977 amendment.

Probably it is best to do something “under protest” and argue about it later, especially when the consequences of inaction may cause even greater problems.

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