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October 30, 2013

Suspension without pay while disciplinary action is pending


Suspension without pay while disciplinary action is pending
2013 NY Slip Op 06769, Appellate Division, Third Department

One of the issues addressed by the Appellate Division was a question involving the suspension without pay of an individual served with disciplinary charges pursuant to Civil Service Law §75.

Noting that in order to avoid unreasonable delay in moving forward with pending charges, Civil Service Law §75(3) authorizes suspension of pay during a disciplinary proceeding for only 30 days. Where the disciplinary action has not been resolved within this 30-day period, the accused is entitled to be reinstated to the payroll and receive his or her regular compensation until an administrative determination regarding the disciplinary charges by the appointing authority has been made.

The Appellate Division, citing Gerber v New York City Hous. Auth., 42 NY2d 162, said this 30-day limitation does not apply in the event of delays attributable solely to the charged employee or where such payment has been clearly waived by such employee.

Courts have approved the placement of an individual on leaves without pay for periods equal in length to any adjournment in the hearing process requested by the employee. See, for example, DeMarco v City of Albany 75 AD2d 674 and Amkraut v Hults, 21 AD2d 260.

For other exceptions due to collective bargaining agreements or for other reasons, see Winkler v Kingston Housing Authority, 259 A.D. 2d 819 and Robinson v New York City Transit Authority, 226 AD2d 467.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_06769.htm
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