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August 07, 2013

Diminution of employment benefits may constitute disciplinary action within the meaning of Civil Service Law §75

Diminution of employment benefits may constitute disciplinary action within the meaning of Civil Service Law §75 
Lynch v Board of Education of the Hewlett-Woodmere Union Free School District, 13 Misc 3d 1217(A)

The School District changed the work schedule of a school bus driver and part time security aide. The change prevented him from working as a security aide.

The employee sued, contending that he lost benefits because of the change in his work schedule. This change in his work schedule, he argued, was a "de facto termination" from his security aide position in violation of Civil Service Law Section 75.

The court agreed, holding that “A ‘diminution in benefits’ occasioned by a reassignment is sufficient to qualify as a disciplinary action so as to require compliance with CSL §75.”

The collective bargaining agreement, however, provided that complaints concerning work assignments and working hours were to be processed through the agreement’s “contract grievance procedure”.

The court said that this provision did not control as the collective bargaining agreement also provided that the term "grievance" did not include any complaint that was otherwise reviewable pursuant to law or any rule or regulation having the force or effect of law.

The court ruled that “Given the exemption from grievance procedure for those matters otherwise reviewable pursuant to law” Lynch could sue “to vindicate a statutory right under Civil Service Law §75” without first utilizing the collective bargaining agreement's contract grievance procedure.

The decision is posted on the Internet at:

N.B. An earlier decision posted on the Internet at http://www.courts.state.ny.us/reporter/3dseries/2006/2006_51734.htm
vacated by the court and republished a modified the opinion to correct a mis-stated date.

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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.
New York Public Personnel Law. Email: publications@nycap.rr.com