Thursday, April 18, 2013

Performing “out of title” work may be lawful under certain circumstances

Performing “out of title” work may be lawful under certain circumstances
New York State Corr. Officers & Police Benevolent Assn., Inc. v Governor's Off. Of Empl. Relations, 2013 NY Slip Op 02445, Appellate Division, Third Department

Kevin Ashby was employed as a correction sergeant, SG 17, by the NYS Department of Corrections and Community Supervision [DOCCS]. Ashby filed two out-of-title work* grievances alleging that on eight occasion in April 2010 and seven occasions in June 2010 he was assigned as shift supervisor, thereby requiring him to perform the work of a correction lieutenant, salary grade 20, and he sought to be compensated accordingly.

The Governor’s Office of Employee Relations [GOER] denied all 15 grievances and Ashby appealed.

The Appellate Division though it noteworthy to comment that during the administrative review processes before GOER the only evidence that was presented concerning the duties that Ashby actually performed on the relevant dates was submitted by DOCCS.

Neither Ashby nor his union submitted any information regarding the facts surrounding the grievances or specific duties that Ashby performed. Although the collective bargaining agreement [CBA] provided the union the right, to submit to DCC a "written brief of the facts surrounding the grievance," during the administrative appeal to the GOER, it never did so.

Ashby, while assigned as shift supervisor, did perform some duties that are listed in the classification standard of a correction lieutenant. However, the Appellate Division noted that “there are many duties that a correction lieutenant performs pursuant to the classification standard that [Ashby] never performed.” In addition, the court said that “While there is some overlap between the duties that [Ashby] performed and the duties of a correction lieutenant, most of the duties that he performed fall within or are a reasonable outgrowth of the duties of his current position.

The Appellate Division sustained GOER’s determination, explaining that “Given the similarities between the duties actually performed by [Ashby] as a shift supervisor and those enumerated in the correction sergeant classification standard, … the infrequent nature of such assignments and the absence of evidence establishing that [Ashby] performed a distinctive aspect of the correction lieutenant job title (namely, supervision of correction sergeants), GOER's determinations are supported by a rational basis in the records.” 

Also noted was that although “Civil Service Law 61(2) seemingly provides an ‘unqualified prohibition against nonemergency out-of-title work, case law has made the standard somewhat more flexible based on practicality’" as demonstrated by the decisions in Sprague v Governor's Off. of Empl. Relations, 13 AD3d at 850; City of Saratoga Springs v Saratoga Springs Civ. Serv. Commn., 90 AD3d at 1400; and Cushing v Governor's Off. of Empl. Relations, 58 AD3d 1095.

May a Taylor Agreement provided that an employee who was offered a temporary or acting higher level position and who was on a Civil Service eligible list for such position shall be required to accept and perform the duties of the higher level position or "the employee shall remove his name from the Civil Service eligible list?"

The employer sought a judgment declaring such a contract provision valid notwithstanding the fact that §61.2 of the Civil Service Law prohibited such out of title work "... except ... during ... a temporary emergency situation.…”

In City of Newburgh v Potter, 168 A.D.2d 779, motion for leave to appeal denied 78 N.Y.2d 857, the Appellate Division concluded that the contract provision was not valid as a waiver of statutory rights and declared the contract provision void and of no force and effect.

Another possible “out-of-title” work situation was the genesis of Yanis v McGuire, 98 A.D.2d 669, affirmed 62 N.Y.2d 723. Yanis, employee with a special skill or talent, his knowledge of both English and Spanish, refused to accept an assignment that required his use of that skill or talent.

Is an employee subject to disciplinary action if he or she refused to accept the assignment? The Appellate Division said he or she could be subjected to disciplinary action based on his or her refusing the assignment.

Yanis, because of his knowledge of both English and Spanish, was instructed to aid detectives in the interrogation of a Spanish speaking witness to a homicide. Yanis failed to report for the assignment and in the disciplinary action that followed the hearing officer found that Yanis' refusal to serve as an interpreter was unjustified and a violation of a reasonable order.

The disciplinary penalty imposed: Yanis could forfeit of six days of vacation credit or he could elect to perform extra tours in lieu thereof.

According to the decision, Yanis had previously served as an interpreter on some 40 occasions in connection with police work and that the "true motive" in refusing to serve as a translator was "his desire to be compensated or to be recognized with a detective designation for what (Yanis) claimed was a special skill."

The dissenting opinion by Justice Asch suggests that the use of such special skill or talent might, under certain circumstances, constitute “out-of-title work.” Accordingly, Justice Asch opined that the assignment could be lawfully refused “unless an emergency situation existed” as the title "interpreter" exists in the New York City Police Department.
* An out-of-title work assignment exists when an employee has been assigned or compelled to perform the duties of a higher grade, without a concomitant increase in pay, frequently, recurrently and for long periods of time . . ." (see Caruso v Mayor of Vil. of S. Glens Falls, 278 AD2d 608

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

Challenging Adverse Personnel Decisions at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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