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January 09, 2012

Employee who was arrested and was absent from work for 10 months because he failed to “make bail” terminated for absenteeism

Employee who was arrested and was absent from work for 10 months because he failed to “make bail” terminated for absenteeism
Dep’t of Transportation v. Pierrteeisme (in PDF), OATH Index No. 2112/11 (Oct. 3, 2011), adopted, Comm’r Dec. (Oct. 24, 2011)

A New York City assistant highway repairer was arrested. Unable to make bail, he was absent from work for 10 months.  

The New York City Department of Transportation filed disciplinary charges against the individual, alleging excessive absenteeism and absence without authorization, as well as conduct prejudicial to good order based on the arrest. 

OATH Administrative Law Judge Faye Lewis sustained the absenteeism charges on an incompetence theory, finding that his lengthy absence, with no showing he would return soon, rendered him incompetent to perform the duties of his position. 

Judge Lewis, however, recommended dismissal of the “conduct prejudicial to good order based on the arrest” charge, noting that an arrest, without any evidence of the underlying misconduct, amounts to an accusation only. 

As to the penalty to be imposed based on the employee’s being found guilty of the absenteeism, Judge Lewis recommended the individual be terminated from employment.

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NYPPL Blogger 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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