Delay in terminating an employee

Delay in terminating an employee
2014 NY Slip Op 00265, Appellate Division, Third Department

In Mendez v Valenti, 101 AD2d 612, the Appellate Division held that retaining Mendez, a probationary employee, on the payroll after the maximum period of his probation until the end of payroll period for administrative convenience did not result in his attaining tenure in the position.

The Court decided that, under the circumstances, keeping Mendez on the payroll was permissible in view of the fact that it was of a short duration; was for "administrative convenience;" and Mendez had been provided with timely prior notice of that he would be terminated at the end of his probationary period.

In Cappello the Appellate Division applied a similar rationale in overturning a decision by the Unemployment Insurance Appeals Board granting an individual [Claimant] unemployment insurance benefits.

According to the decision, the employer dismissed Claimant after determining that she had violated the employer's policy and committed theft. Claimant was initially disqualified from receiving unemployment insurance benefits on the ground that she lost her employment through misconduct, and this decision was upheld by an Administrative Law Judge following a hearing.

The Unemployment Insurance Appeal Board, however, reversed this decision and found that claimant was entitled to receive benefits. The Board ruled that Claimant did not lose her employment due to misconduct because the employer delayed in terminating her after learning of her actions and did not provide a reasonable excuse for the delay.

The employer appealed and the Appellate Division vacated the Board’s ruling.

The Court explained that the Board’s conclusion was not supported by the record as upon the employer becoming aware of Claimant's inappropriate conduct it immediately proceeded to conduct an investigation, obtaining a statement from one employee and subsequently obtained a statement from Claimant about a month later  “as part of its continuing investigation.” Less than two weeks after obtaining Claimant’s statement the employer terminated for violating the employer’s policy.

The Appellate Division said that “[u]nder the circumstances presented” it did not find that the employer had engaged in an inordinate delay in terminating Claimant such that it could not rely upon her misconduct as the reason for her discharge.

Noting that it is well settled that an employee's dishonesty or failure to comply with an employer's policy and procedures constitutes disqualifying misconduct, here, said the Appellate Division, the evidence is undisputed that Claimant violated the employer's relevant policy. Accordingly, explained the court, “[g]iven [Claimant’s] misconduct, substantial evidence does not support the Board's decision that she was entitled to receive benefits” and reversed the Board’s decision.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2014/2014_00265.htm

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The doctrine of Absolute Privileged attaches to an allegedly defamatory memorandum published in the context of ongoing litigation

The doctrine of Absolute Privileged attaches to an allegedly defamatory memorandum published in the context of ongoing litigation

2013 NY Slip Op 52290(U), Court of Claims [Not selected for publication in the Official Reports]

An individual [Petitioner] who worked at a state correctional facility filed a claim “sounding in defamation per se” alleging that an article appeared in the print and the on-line versions of a newspaper included statements attributed to a State official that disparaged Petitioner.

Eventually it was determined that alleged defamatory statements were made by a state employee and had been “acquired by a non-State actor,” which person gave it to one of the newspaper’s reporters.

According to the decision, an Assistant Attorney General involved in the instant matter provided a copy of the employee’s memorandum to an attorney, apparently the alleged “non-State actor,” involved in a related matter then pending in federal court.

The Court of Claims “assumed without deciding” that Petitioner’s proposed amended claim satisfied the threshold jurisdictional requirements of being timely filing and served within the relevant statute of limitations and that it satisfies the substantive pleading requirements of Court of Claims Act §11(b).

The court then denied Petitioner’s motion to amend his claim explaining that the alleged tortious conduct — the Assistant Attorney General’s “publication (or republication) of the [State employee’s] memorandum to [the attorney in the federal action] is not actionable because it was absolutely privileged,”* as “Statements made in the course of judicial proceedings are absolutely privileged … and absolute privilege will attach if the allegedly defamatory statements were ‘pertinent’ to the questions involved in the judicial proceeding.”

Further, explained the court, "Whether a statement is at all pertinent . . . is determined by an extremely liberal test" and  "To be actionable, a statement . . . must be so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame."

As the Court of Appeals held in Youmans v Smith, 153 NY 214, “The purpose of the absolute privilege afforded to communications made in the course of judicial proceedings is well established and clearly stated: the due process of ‘clients should not be imperiled by subjecting their legal advisers to the constant fear of suits for libel or slander.’"

Accordingly, said the court, the Assistant Attorney General’s actions in turning over the allegedly defamatory memorandum in the context of ongoing litigation are entitled to the absolute privileged, provided that the alleged defamatory statements were pertinent to the litigation, which, in this instance, the court found were so pertinent.

* The Court of Claims noted that "Absolute privilege has been recognized in a very few situations where there is an obvious policy in favor of permitting complete freedom of expression, without any inquiry as to the defendant's motives.” However, in Amato v. Welsh, 2013 ONCA 258, a decision handed down by Canada’s Court of Appeals for Ontario, suggests an exception to the doctrine. The Amato decision suggests that it may be possible for a court to find that the doctrine of absolute immunity yields to the attorney’s duty of loyalty to a client [see paragraphs 61 et seq. set out in the decision].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_52290.htm

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Governor Andrew M. Cuomo announces new appointments within his administration

Governor Andrew M. Cuomo announces new appointments within his administration.
Source: Office of the Governor

Governor Cuomo on Tuesday, February 25, 2014, announced the appointments of Margaret Egan and Linda Cohen to his administration.

Margaret Egan will serve as Assistant Secretary for Public Safety. Ms. Egan served as the Director of Policy & Government Affairs to Cook County Sheriff Tom Dart from 2012 to 2014. In that role Ms. Egan was responsible for developing and managing crime policy, social services and the legislative strategy for the nation’s largest single site jail and one of the largest police departments in Illinois. She developed and led the implementation of the Affordable Care Act for the Sheriff making the Cook County Jail the first jail in the nation to enroll detainees under Medicaid expansion, which has now become a model for jails across the country. Additionally she led efforts to improve correctional based education programming for school aged and adult detainees. She also developed projects around firearms tracing and trafficking throughout suburban Cook County.

Linda J. Cohen, Esq., will serve as Executive Director for the State Commission on National and Community Service. Prior to joining the Commission, Ms. Cohen served for a dozen years as Executive Director of the New York State Corps Collaboration, where she was responsible for one of the nation’s largest AmeriCorps programs. She also served as Executive Director of the New York State Dispute Resolution Association, as a contributing writer for Inside Sports Magazine and in various positions within all three branches of New York state government. She is a graduate of Union College, Albany Law School and the National Law Center at George Washington University.
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Defense for tenured administrators and faculty rated "ineffective" based on “Common Core”student performance proposed

Defense for tenured administrators and faculty rated "ineffective"  based on “Common Core”student performance proposed

Proposed Action: Amend 8 NYCRR 82-1.10(j) with respect to hearings on charges of tenured school employees [I.D. No.EDU-08-14-00020-P]

The following summarizes a proposed amendment to 8 NYCRR 82-1, Hearings of Charges Against Employees on Tenure

Purpose: To allow, under certain circumstances, tenured teachers and principals to raise as a defense in a section 3020-a hearing that their school district failed to timely implement the Common Core in the 2012-2013 and/or 2013-2014 school year.

Summary of the text of proposed rule: Subdivision (j) of section 82-1.10 of the Regulations of the Commissioner of Education is added, effective May 14, 2014, as follows:

(j) Where an expedited hearing brought based solely upon a charge of a pattern of ineffective teaching or performance of a classroom teacher or principal, or a hearing brought on a charge of incompetency, is based on an ineffective rating on the state growth and/or locally selected measures subcomponents of the teacher’s or principal’s annual professional performance review resulting from student performance on the Common Core state assessments administered in the 2012-2013 and/or 2013-2014 school years, the employee may raise as a defense an alleged failure by the employer to timely implement the Common Core by providing adequate professional development, guidance on curriculum or other supports to the employee.

The notice of this proposed amendment in the State Register explains that "the proposed amendment would thus protect tenured teachers and principals from termination based on an ineffective Annual Professional Performance Review (APPR) rating resulting from student performance on the Common Core assessments where they can prove that the district did not provide the professional development, curriculum materials or other supports needed for Common Core implementation during the 2012-2013 and/or 2013-2014 school years.”

The text of proposed rule and any required statements and analyses may be obtained from: Mary Gammon, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@mail.nysed.gov

Data, views or arguments may be submitted to: Peg Rivers, State Education Department, Office of Higher Education, Room 979 EBA, 89 Washington Ave., Albany, NY 12234, (518) 486-3633, email: regcomments@mail.nysed.gov

Public comment will be received until 45 days after publication [February 26, 2014] of this notice.
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Workers’ Compensation Law benefit claims based on "work-related" mental stress

Workers’ Compensation Law benefit claims based on "work-related" mental stress 
2014 NY Slip Op 00916, Appellate Division, Third Department

A police officer [Claimant] was on duty when he was called to the scene of an incident in which an armed suspect was firing shots at passing motorists and law enforcement officers.

Claimant and two fellow officers were assigned to be part of a "contact team," which approached the shooter from behind. The suspect was shot several times and died from those wounds. Claimant began to miss work and then filed an application for workers' compensation benefits. His claim was controverted by the police department.

Claimant was diagnosed with posttraumatic stress disorder related to the incident, which rendered him disabled. A Workers' Compensation Law Judge, however, denied his claim, finding that the events giving rise to Claimant's injury were part of his job description and responsibilities as a peace officer. The Law Judge ruled that Claimant had not sustained an accidental injury in the course of his employment.

The Workers' Compensation Board ultimately affirmed the Law Judge’s decision and Claimant appealed.

The Appellate Division upheld the Appeal Board’s decision, explaining that for a mental injury premised on work-related stress to be compensable, "the stress must be greater than that which usually occurs in the normal work environment."*

Whether the stress experienced by a claimant is more than that normally encountered is a factual question for the Board to resolve, and its finding will not be disturbed when supported by substantial evidence.

In this instance, said the court, although Claimant's supervisor described the particular circumstances of the encounter as "extraordinary," the regular course of duty for a police officer — no matter the size of the department — requires that he or she be on notice each day that deadly force may be required to subdue a suspect who is endangering public safety.

Accordingly, the Appellate Division said that it declined to disturb the Board's decision.

Other claims seeking Workers' Compensation Law benefits in which the individual claim he or she was entitled to benefits due to stress suffered on the job include:

1. Mattoon v Workers' Compensation Board, 284 A.D.2d 667 – employee not eligible for Workers’ Compensation benefits after leaving her job “due to work-related stress that resulted in depression, posttraumatic stress disorder and generalized anxiety disorder.” resulting from employee’s reassignment to anther position.

2. Witkowich v SUNY Alfred State Coll. of Ceramics, 80 AD3 1099 - Stress resulting from a lawful personnel action, including discipline, is not a compensable injury within the meaning of the Workers’ Compensation Law

3. Veeder v New York State Police Dept. - 86 AD3d 762 - Workers' Compensation Law benefits not available for “mental injury” resulting from an employer’s lawful personnel actions

*Section 2(7) of the Workers’ Compensation Law specifically excludes from compensation "an injury which is solely mental and is based on work related stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00916.htm
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A showing that a pending arbitration’s award may be rendered ineffectual and there is a likelihood of success is critical to obtaining a preliminary injunction

A showing that a pending arbitration’s award may be rendered ineffectual and there is a likelihood of success is critical to obtaining a preliminary injunction
Patrolmen's Benevolent Assn. of the City of New York, Inc. v City of New York,2013 NY Slip Op 08033, Appellate Division, First Department

Three members [Petitioners] of the Patrolmen's Benevolent Association of the City of New York, Inc. (PBA) were elected to four-year terms as the sole borough-wide PBA representatives for police officers assigned to the Bronx. At the request of the PBA, the Office of Labor Relations (OLR) issued Petitioners Release Time Certificates pursuant to Mayor's Executive Order #75 (3/22/73) (EO 75), which provided for full-time leave with pay and benefits.*

The three Petitioners, however, were subsequently suspended without pay for thirty days pursuant to Civil Service Law §75(3-a) following their indictment by a grand jury in connection with an alleged ticket-fixing scheme. Petitioners were subsequently restored to modified duty. OLR, however, rescinded their Release Time Certificates and offered to issue new Release Time Certificates to three other employees to be chosen by PBA.

PBA rejected the offer and filed a contract grievance. The grievance was denied and PBA filed a demanded for arbitration, contending that the rescission of the Certificates violated the parties' collective bargaining agreement and EO 75.  PBA also filed a petition for a preliminary injunction pursuant to CPLR 7502(c) seeking to have the Petitioner’s Certificates reinstated pending the arbitrator issuing his or her decision and award..

Supreme Court granted the petition, “enjoining respondents from implementing any termination or revocation of ‘Release Time’ leave for the three individual petitioners pending resolution of arbitration proceedings commenced by petitioner Patrolmen's Benevolent Association.”

The Appellate Division vacated the preliminary injunction on appeal in a three to two ruling.**

Noting that CPLR 7502(c) provides that the Supreme Court "may entertain an application for ... a preliminary injunction in connection with an arbitration that is pending ... the majority explained such an application may be granted “only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief." Further, said the court, PBA, as the party seeking the preliminary injunction, was required to “demonstrate a probability of success on the merits, danger of irreparable injury in the absence of a preliminary injunction, and a balance of the equities in their favor.”

Applying these standards, and "even assuming that [Petitioner] established that an award in their favor would be rendered ineffectual without provisional relief" as required by CPLR 7502(c), the majority held that PBA “failed to make the requisite showing of a likelihood of success on the merits, and therefore have not established their entitlement to injunctive relief.”

The majority noted that each Release Time certificate stated that it “MAY BE REVOKED, MODIFIED OR CANCELLED” and Petitioners did not suggest any purpose for such language “other than to vest the City with residual authority to rescind a Release Time [Certificate] where warranted.”

Holding that Petitioners' interpretation of EO 75 was not plausible, the majority concluded that Petitioners “have not demonstrated a likelihood of success on the merits,” the Appellate Division granted the appeal.

* With respect to the State as the employer, employee organization leave has been an issue since the adoption of the Taylor Law. In response to demands that State employees elected to a leadership position of an employee organization representing state employees be provided with "paid organization leave," the State agreed to provide for “Employee Organization Leave” and enacted §46 of Chapter 283 of the Laws of 1972 to this end. This law provides that a State employee organization may obtain approval for paid full or part-time leaves of absence of its representatives provided it agrees to fully reimburse the State for the salary and other compensation paid to the individual and, in addition, for all employer contributions for fringe benefits made on behalf of the individual while he or she is on Employee Organization Leave. The individual would continue as a State employee, on the State’s payroll, during this time. Another consideration affecting State employees on Employee Organization Leave: The State Ethics Commission has advised [Advisory Opinion No. 90-1] that “State employees on Employee Organization Leave or State employees on leave without pay who serve as employee organization representatives for CSEA … who have terminated their State service and are now employed by CSEA are subject to the "revolving door" provisions of the Public Officers Law and the corresponding restrictions on post-employment activities.” Presumably this opinion would be applied with respect to State employees on employee organization leave serving with other employee organizations.”

** Judges Tom and Gische dissented in an opinion by Judge Gische.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08033.htm

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Department of Civil Service - Five Year Review of Certain Existing Rules and Regulations

Department of Civil Service - Five Year Review of Certain Existing Rules and Regulations

Source: NYS Register- February 19, 2014

The following notice was published in the February 19, 2014 issue of the State Reporter pursuant to §207 of the State Administrative Procedure Act (SAPA) addressing Rules and Regulations adopted by the New York State Civil Service Commission or by the President of the New York State Civil Service Commission for the calendar years 1999, 2004 and 2009.

Public Comments

There will be a forty-five (45) day public comment period following publication of this notice. Requests for information and public comments regarding the foregoing may be directed to: J . Marc Hannibal, Eaq., Special Counsel, Department of Civil Service, Empire State Plaza, Albany, NY 12239, (518) 473-2624, E-mail address: marc.hannibal@cs.state.ny.us

Below is a brief description of each rule, including the statutory authority for its promulgation; a statement of the justification for the ongoing need for each rule; and the Department of Civil Service’s recommendations for their continuation without modification.

1999

Amendments to Chapter II of Title 4 of NYCRR (Attendance Rules for Employees in New York State Departments and Institutions)

Statutory Authority: Civil Service Law Section 6

Description of the Regulations:

The resolutions added new sections and amended existing sections of the Attendance Rules for non-managerial/confidential (Part 21 of 4NYCRR) and managerial/confidential (Part 28 of 4 NYCRR) employees in New York State Departments and Institutions.

Sections 21.16 and 28-1.18 of the Attendance Rules were adopted to permit appointing authorities to grant overtime ineligible employees who have exhausted military leave with pay provided pursuant to the New York State Military Law, further leave with pay without charge to accruals for any period[s] of less than a workweek during which such employees are ordered to temporary military duty.

Section 21.9 and 28-1.9 of the Attendance Rules were amended to permit agencies to grant overtime ineligible employees leave with pay without charge to accruals for any absence[s] of less than a workweek during which such employees are required to appear as a witness pursuant to a subpoena or other order of court, regardless of whether an

employee is a party to the action.

These rules ensure that the Attendance Rules will be applied to employees serving in overtime ineligible positions consistent with relevant provisions of the federal Fair Labor Standards Act (FLSA).

Action: The rules have functioned consistent with the purposes underlying their adoption and the Department recommends continuation without modification.

Amendments to Chapter V of 4 NYCRR (Regulations of the Department of Civil Service [President’s Regulations])

Statutory Authority: Chapter 534 of the Laws of 1998, amending section 167(2) of the Civil Service Law.

Description of the Regulations:

Chapter 534 of the Laws of 1998 amended section 167(2) of the Civil Service Law to provide that unpaid board members of public authorities shall be eligible to participate in the New York State Employee Health Insurance Program (NYSHIP) after six months of

service.

The regulation added a new subparagraph (iv) to section 73.1(c)(1) and a new paragraph (5) to section 73.1(e) of the President’s Regulations providing that unpaid board members of public authorities may participate in NYSHIP after six months of service and may also

continue their NYSHIP enrollment upon leaving public service with20 years or more of service in such positions.

Action: The regulations have functioned consistent with the purposes underlying their adoption and the Department recommends continuation without modification.

Amendment to Chapter V of 4 NYCRR (Regulations of the Department of Civil Service [President’s Regulations])

Statutory Authority: Civil Service Law, Article XI

Description of the Regulation:

Section 73.3(b)(1) of the President’s Regulations was amended to enable participating agencies (PAs) and participating employers (PEs) in the New York State Health Insurance Program (NYSHIP) to contribute towards health insurance premiums on behalf of employees on leave without pay, provided such benefit is accorded to all employees within a class or category. The amendment provides that upon (60) days prior notice to the Department of Civil Service, PAs and PEs may provide such benefit to an eligible employee for a period of two years. This authorization may be extended for one additional two year period by the State Civil Service Commission for good cause shown and where the interests of government would be served. The amendment further provides that where contributions have been made on behalf of an employee on leave without pay for a two year period, or a four year period where authorized by the State Civil Service Commission, no further extensions may be granted unless the employee returns to his or her position and serves continuously therein for the six month period immediately preceding a subsequent leave of absence. This regulation extends an additional potential benefit to eligible employees and forms a part of the overall “benefit package” that employers may consider when electing to adopt NYSHIP as a health insurance offering.

Action: The regulation has functioned consistent with the purposes underlying its adoption and the Department recommends continuation without modification.

2004

Amendment to Chapter IV of 4 NYCRR (Regulations of the Regulations of the State Civil Service Commission [Commission’s Regulations])

Statutory Authority: Civil Service Law Section 6

Description of the Regulation:

The resolution amended Part 55.2 to provide that a committee on appeals of the State Civil Service Commission shall not consider an examination appeal from a candidate whose score at time of establishment of the eligible list is immediately reachable for appointment as provided in section 61 of the Civil Service Law. However, a committee on appeals will consider timely appeals where a candidate’s reachability for appointment is affected by the committee’s determination of another appeal.

This resolution eliminates the need to consider examination appeals from candidates who are already eligible for immediate appointment pursuant to the Civil Service Law “rule of three.” Based upon public comments received before adoption of the resolution, the rule provides for continued consideration of timely appeals if candidates’ reachability could be impacted by other pending examination appeals.

Action: The regulation has functioned consistent with the purposes underlying its adoption and the Department recommends continuation without modification.

2009

No current amendments to 4 NYCRR were adopted during 2009.

Various amendments to the Appendices to the Rules for the Classified Service (1999 and 2004)

Appendix 1 (Exempt Class)

Appendix 2 (Non-Competitive Class)

Statutory Authority:

Appendix 1: Civil Service Law, Sections 6 and 41; 4 NYCRR 2.1

Appendix 2: Civil Service Law, Sections 6 and 42; 4 NYCRR 2.2

Description of the regulations:

Civil Service Commission rules relating to the jurisdictional classification of positions were specifically exempted from review under Executive Order 20 by the former Governor’s Office for Regulatory Reform (GORR), upon a finding by GORR that review of such rules lacked substantial benefit.

Based upon this determination, and pursuant to SAPA section 207(5), a recitation of amendments to Appendices 1 and 2 to Title 4 of NYCRR adopted during calendar years 1999, 2004 and 2009 is hereby omitted.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 22, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 22, 2014

Click on text highlighted in color  to access the full report

Comptroller DiNapoli Releases State Audits

New York State Comptroller Thomas P. DiNapoli announced Tuesday, February 18, 2014, the following audits have been issued:

the Tuition Assistance Program;

the Metropolitan Transportation Authority;

the Office of Children and Family Services;

the New York City Department of Education; and

the New York State Health Insurance Program.


DiNapoli: DOT Improperly Paid Employees Working on Tappan Zee Bridge $320,000 for Commuting Expenses

The state Department of Transportation improperly paid nearly $321,000 to eight employees working on the Tappan Zee Bridge project for their commute to work in Tarrytown, even after an internal audit identified it as inappropriate, according to an auditreleased Tuesday, February 18, 2014, by State Comptroller Thomas P. DiNapoli.

DiNapoli: Investment in Rochester Company Returns $6.7 Million to State Pension Fund

5LINX, a telecommunications company located in Rochester, has generated an estimated $6.7 million return, nearly four times the initial investment, and achieved an approximated 21 percent internal rate of return for the New York State Common Retirement Fund (Fund), New York State Comptroller Thomas P. DiNapoli announced Thursday, February 20, 2014. The Fund invested in 5LINX through its In–State Private Equity Program, which seeks profitable investments in New York State–based companies.

DiNapoli: Audit Finds Misuse of Funds in Town of Fishkill

The former recreation director in the town of Fishkill allegedly misused as much as $50,000 generated by the town’s senior center, according to an audit released Friday, February 21, 2014, by State Comptroller Thomas P. DiNapoli. The findings of the Comptroller’s audit and investigation have been referred to Dutchess County District Attorney William V. Grady.

DiNapoli Releases January State Cash Report

State tax collections through the first 10 months of the state’s fiscal year increased 4.2 percent from last year, but were below projections largely due to the timing of Personal Income Tax (PIT) payments, according to the January 2014 cash report released Friday, February 21, 2014, by New York State Comptroller Thomas P. DiNapoli. The Division of the Budget is expected to issue a revised Financial Plan with updated revenue projections next week.
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Hearsay evidence alone may constitute substantial evidence in an administrative hearing

Hearsay evidence alone may constitute substantial evidence in an administrative hearing

2013 NY Slip Op 08169, Appellate Division, Third Department

The arbitrator dismissed disciplinary charges filed against the employee. While the arbitration was pending, the employee’s supervision lodged a complaint against employee alleging violations of certain canons of ethics relevant to the employee maintaining required credentials.

Following a hearing, Hearing Officer recommended that employee’s credentials be revoked, which recommendation the responsible Commissioner accepted and revoked the employee’s credentials. This resulted in the employee’s termination because he now lacked the required certification to be employed in the position. The employee filed an Article 78 petition challenging the Commission’s action.

The Appellate Division annulled the Commissioner’s decision, explaining that there was “serious doubt” concerning the credibility of the employee's accusers and, for that reason, the court did not find that the hearsay evidence presented at the hearing to be sufficiently reliable to support the Commissioner’s determination revoking the employee’s credentials.

Characterizing the primary issue in the appeal as the employee’s complaint that the Commission’s action was not supported by substantial evidence in the record as a whole and “specifically, that the hearsay evidence adduced at the hearing was insufficient to establish the alleged ethical violations,” the Appellate Division explored the terms “substantial evidence” and “hearsay evidence.”

Substantial evidence, said the court, has long been defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact”, citing Matter of Berenhaus v Ward, 70 NY2d 436, and other decisions.

The Appellate Division then noted that an administrative determination may be based entirely upon hearsay evidence “provided such evidence is ‘sufficiently relevant and probative’ or ‘sufficiently reliable’ and is not otherwise ‘seriously controverted.’"

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08169.htm
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A "stand alone agreement” outside a collective bargaining contract containing a sunset provision is excluded from “maintenance of the status quo” within the meaning of Civil Service Law §209-a(1)(e)

A "stand alone agreement” outside a collective bargaining contract containing a sunset provision is excluded from “maintenance of the status quo” within the meaning of Civil Service Law §209-a(1)(e)

Matter of Uniformed Firefighters Assn. of Greater N.Y. v City of New York, 2014 NY Slip Op 01108, Appellate Division, First Department

The New York City Board of Collective Bargaining (BCB dismissed Uniformed Firefighters Association’s improper practice charges, holding that the City was not required to negotiate its decision to reduce fire engine staffing levels. Supreme Court dismissed the Association’s challenge to the BCB’s decision and the Appellate Division affirmed the lower court’s ruling.

The City had earlier implemented a roster staffing program and ultimately entered into a “Roster Staffing Agreement (RSA) setting of the staffing requirements. The RSA was to be effective for a 10-year term, expiring on January 31, 2006 and in October 2005, the Association and the City agreed to extend the term of the RSA by five years to January 31, 2011. The RSA included the following provision:

"ELEVENTH: By entering into this Stipulation of Settlement, the Union agrees to waive its right to file any litigation or grievance regarding the Department Roster Staffing program as set forth in the case docketed with the Office of Collective Bargaining as BCB-1265-90, or with regard to the practical impact of this RSA until January 31, 2006. Should a court of competent jurisdiction or any other administrative entity, except for enforcement purposes, grant the right to initiate any such litigation or grievance within that time, this RSA will be terminated immediately. Should litigation or a grievance commence, this RSA or any portion thereof shall not be admissible in any court proceeding or other administrative forum. After the expiration of this RSA, January 31, 2006, the City in view of factors including, but not limited to changes in technology, structural and non-structural fires, and response times, may wish to change staffing levels. In the event the City plans to make such changes, the parties will negotiate to the extent required by the New York City Collective Bargaining Law. Should differences between the parties arise, it is the intent of the parties to work expeditiously to resolve them."

In October 2010, the City notified petitioner that in consideration of the RSA's impending January 31, 2011 expiration date, it planned to the staff assigned to engines in certain companies with a minimum of four firefighters per engine at the beginning of each tour and others with five firefighter crews, effective February 1, 2011.

The City noted that, while it was not obligated to bargain with the union over the changes, it was "willing to meet with the UFA to discuss any concerns the union may have." The City gave petitioner a publication containing the FDNY's guidelines and procedures for implementing the new staffing policy.

On January 31, 2011, the Association, with the Uniformed Fire Officers Association** (UFOA), brought a combined Improper Practice and Scope of Bargaining petition to challenge the City's decision to reduce the engine staffing levels at certain companies from five firefighter crews to four commencing February 1, 2011, contending that the City's unilateral action was violative of both the RSA and the New York City Collective Bargaining Law (NYCCBL).

The BCB, by a four-to-two vote, dismissed all challenges except the allegations concerning the practical impact of the City's decision to reduce the engine staffing levels. BCB also directed a hearing before a trial examiner to determine whether the reduction would have a safety impact that would require negotiations between the parties concerning implementation of the changes.

In its decision, BCB found that the RSA contained a "sunset" provision because paragraph Eleventh and the subsequent extension indicated an expiration date. Thus, any provision in the RSA to maintain the engine staffing levels had "sunset" which had the practical effect of terminating a benefit at a specific time or on a specific condition. 

In so ruling BCB rejected a reading of paragraph Eleventh as requiring the parties to negotiate post-expiration should the City decide to reduce engine staffing levels. This construction, BCB held, would render the RSA's expiration meaningless and would impose an absolute obligation on the City to bargain, where the language indicated only that the parties would bargain "to the extent required by the NYCCBL."

In addition, BCB found that the RSA allowed the Association to file grievances after the expiration date, but that its proposed reading would not similarly permit the City to act; thus the Association’s reading of the RSA would evince a lack of mutuality that could not have been the parties' intent.

Significantly, BCB held that that, based on its determination that paragraph Eleventh "on its face, constitutes a sunset provision," and thus neither maintenance of the status quo under Civil Service Law §209-a(1)(e),* nor the conversion theory of negotiability, applied.

Based on its own precedent, BCB determined that the RSA was not incorporated into the parties' Collective Bargaining Agreement and, consistent with its previous decisions and NYCCBL 12-307, fire engine staffing levels are a nonmandatory bargaining subject. Accordingly, it ruled that the City was not required to bargain such staffing levels unless, following a hearing, BCB found a practical safety impact.

Supreme Court found no reason to disturb the board's determination and held that once BCB determined that the RSA expired on January 31, 2011, it rationally applied its own precedent to find that this "sunset provision" rendered inapplicable the theory that nonmandatory subjects could be converted into mandatory subjects by way of incorporation into a collective bargaining agreement. Accordingly, any provision in the RSA that required the Association and the City to negotiate the reduction of engine staffing levels expired with the RSA. Noting that there was no post-expiration obligation to negotiate the matter unless the reduction had an impact on safety, the court ruled that BCB had properly directed a hearing to establish a record concerning that issue.

The Appellate Division agreed, finding that Supreme Court properly denied the petition and dismissed the proceeding and that BCB’s determination was rational and did not render any provision in paragraph Eleventh meaningless. The Appellate Division then explained that if BCB’s determination has a rational basis, it must affirm, “even if this Court would have interpreted the provision differently.”

Finding that BCB rationally concluded that paragraph Eleventh's reference to the "expiration of this RSA, January 31, 2006" was a sunset provision, it properly concluded that, after the RSA's expiration, if the City intended to reduce engine staffing levels, it would negotiate "to the extent required by the New York City Collective Bargaining Law."

However, said the court, under the current Collective Bargaining Law, staffing levels are a nonmandatory subject of collective bargaining and “[c]ontrary to [the Association’s] contention, [BCB’s] decision does not render meaningless the last sentence of paragraph Eleventh—‘[s]hould differences between the parties arise, it is the intent of the parties to work expeditiously to resolve them’—because the safety impact of any staffing level reduction remains negotiable.”

* The so-called Triboro Amendment

** The UFOA is not a party to the RSA and, thus, is not a party to this appeal.

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2014/2014_01108.htm

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Employee terminated for deficient performance

Employee terminated for deficient performance

2013 NY Slip Op 08012, Appellate Division, First Department

The Appellate Division confirmed the ruling of the State of New York Industrial Board of Appeals (IBA) which, after a hearing, determined that New York State Department of Labor (DOL) acted reasonably in concluding that the New York City Board of Education (BOE) did not terminate an individual's [Petitioner] employment in retaliation for his submitting complaints about health and safety pursuant to the Public Employee Safety and Health Act. *

The court said that substantial evidence in the record supports IBA's determination that DOL acted reasonably in concluding that Petitioner's complaints regarding health and safety were not a motivating factor in his dismissal from his position as a “Homebound Program”** teacher.

Although there is evidence that Petitioner's supervisor “purportedly told a DOL investigator in 1993 that [Petitioner] was terminated from his position because he made health and safety complaints,” the Appellate Division said that the evidence underlying DOL's conclusion that BOE did not terminate Petitioner because of his filing complaints pursuant to the Pubic Employee Safety and Health Act included extensive evidence of deficient performance by Petitioner.

The Appellate Division also noted that the supervisor who allegedly indicated a discriminatory motive was not the ultimate decision-maker, and the record shows that BOE immediately offered Petitioner another tenured track position after terminating his employment in the Homebound Program.

The court commented that the same result would obtain whether the matter was analyzed pursuant to the traditional framework set forth in McDonnell Douglas Corp. v Green, 411 US 792, or under a "mixed motive" analysis, citing Melman v Montefiore Medical Center, 93 AD3d 107.

* New York State Labor Law §27-a, “Safety and health standards for public employees”

** Homebound instruction - A resident of the public school district enrolled in a public or nonpublic school is eligible for this service if qualified. Home instruction is a form of tutorial services, provided to public or nonpublic students, by the public school district of residence.  These services are provided in accordance with the Commissioner of Education's Regulations [see 8 NYCRR 175.21] to students who are unable to attend their public or nonpublic school because of physical, mental, or emotional illness or injury.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08012.htm

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Filing a timely “Notice of claim” pursuant to Education Law §3813(1) held a condition precedent to maintaining an action seeking damages

Filing a timely “Notice of claim” pursuant to Education Law §3813(1) helf a condition precedent to maintaining an action seeking damages

2014 NY Slip Op 01007, Appellate Division, Second Department

Challenging the School Board's decision denying a probationary teacher [Teacher] tenure and terminating her employment, Teacher filed a petition pursuant to CPLR Article 78 seeking a court order annulling the Board's determination on the ground that it was arbitrary and capricious and sought reinstatement to her former position with tenure and back pay.

Supreme Court directed the Board to reinstate Teacher with back pay pending a hearing to determine “whether [Teacher] was denied tenure and terminated from her position as a probationary teacher in bad faith.”

The Board appealed and among its affirmative defenses it argued that Teacher “had failed to serve a notice of claim within three months after her claim arose as required by Education Law §3813(1).” The Appellate Division agreed and reversed the lower court’s ruling on the law. The Appellate Division explained that Teacher was, indeed, required, pursuant to Education Law §3813(1), to serve a timely notice of claim.*

The court distinguished Teacher’s claim from one where a litigant seeks only equitable relief or commences a proceeding to vindicate a public interest. Here, said the Appellate Division, Teacher sought damages in the form of back pay as well as equitable relief and had not commenced this proceeding to vindicate a public interest.

The court also noted that although a litigant seeking "judicial enforcement of a legal right derived through enactment of positive law" is exempt from the §3813(1) notice of claim requirement, that exemption is inapplicable here and Teacher’s service of a notice of claim pursuant to Education Law §3813(1) was a condition precedent to the maintenance of her action.

* In Mennella v Uniondale UFSD, Supreme Court, 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602, it was held that a timely appeal to the Commissioner of Education provides the pre-litigation §3813 Notice of Claim that must be filed with a school district while in Sephton v Board of Education of the City of New York, 99 AD2d 509, the Appellate Division ruled that “the ‘tenure rights’ of teachers are ... considered a matter in the public interest and therefore §3813 is not applicable to cases seeking to enforce such rights,” citing Matter of Tadken v Board of Education, 65 AD2d 820, Motion for leave to appeal denied, 46 NY2d 711.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01007.htm

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LawBlog Buzz - the five most read employment-related lawblogs during the week ending February 16, 2014 [listed in alphabetical order]

LawBlog Buzz - the five most read employment-related lawblogs during the week ending February 16, 2014 [listed in alphabetical order]

Source: Justia’s survey of 5,656 lawblogs for the week ending February 16, 2014 

Adjunct Law Prof Blog [Feed] Focuses on issues of interest to adjunct law professors, including labor law, employment law, employee benefits law and education law issues. By Adjunct Law Professor Mitchell H. Rubinstein. Last Updated: February 15, 2014 - Rank this Week: 190 http://lawprofessors.typepad.com/adjunctprofs/

Discourse.net [Feed] By University of Miami law professor Michael Froomkin. Covers civil liberties, the Internet, Guantanamo, Iraq attrocities, politics and more. Last Updated: February 15, 2014 - Rank this Week: 16 http://www.discourse.net/

New York Public Personnel Law [Feed] Provides summary and commentary on selected court and administrative decisions and related matters affecting public employers and employees in New York State. By Harvey Randall, Esq. Last Updated: February 15, 2014 - Rank this Week: 92 http://publicpersonnellaw.blogspot.com/ 

Whistleblower Law Blog [Feed] Covers legislation, news and cases for whistleblowers and those who represent them. By The Employment Group. Last Updated: February 12, 2014 - Rank this Week: 161 http://employmentlawgroupblog.com

Workplace Prof Blog [Feed] Covers arbitration, disability, employment discrimination, labor law, public employment law and workplace safety. By Professors Richard Bales, Jeffrey M. Hirsch and Marcia L. McCormick. Last Updated: February 14, 2014 - Rank this Week: 207 http://lawprofessors.typepad.com/laborprof_blog/ 

For additional Law Blogs with a New York State focus, go to:

http://publicpersonnellaw.blogspot.com/2012/07/law-blogs-with-new-york-focus.html 
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Empire State Fellows Program to prepare new policy-makers to lead New York State

Empire State Fellows Program to prepare new policy-makers to lead New York State

Source: Officer of the Governor

On February 12, 2014 Governor Andrew M. Cuomo announced the opening of the application process for the third class of the Empire State Fellows to attract exceptional and diverse talent from New York and around the country to serve in high-level positions in the administration. Since its inception in 2012, the two-year Program has begun preparing a new generation of policy-makers to help lead New York State government.

Candidates selected as Empire Fellows will be appointed to positions in the Executive Branch that match their skills and experience, and will work closely with senior administration officials to create transformative policy solutions to the complex challenges confronting our state. Empire Fellows will also engage in educational and professional development programming that prepares them to serve as effective and ethical government leaders.

Successful Empire State Fellows may continue serving New York State after completing the Program. Governor Cuomo recently appointed three Empire State Fellows to senior positions in his administration: Jennifer M. Gómez is now the New York State Assistant Secretary for Human Services and Information Technology, Nora K. Yates is now the Deputy Director of The Community, Opportunity, Reinvestment Initiative (CORe), and Kisha Santiago-Martinez is now an Assistant Commissioner at New York State Homes and Community Renewal.

Empire State Fellow applications are to submitted by Friday, April 4, 2014. For more information on the Empire State Fellows Program and the application process, go to http://www.dos.ny.gov/newnyleaders/fellows-qualifications.html

For more information about the program, see www.newnyleaders.com.
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 15, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 15, 2014

Click on text highlighted in color  to access the full report

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli on Tuesday, February, 11, 2014,  announced his office completed audits of:

the Brighter Choice Charter Middle School for Boys;

the Brighter Choice Charter Middle School for Girls;

the Frewsburg Central School District;

the Holley Central School District; and

the Homer Central School District.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli on Wednesday, February 12, 2014, announced his office completed audits of:

the Albany County Probation Department;

the Town of Java; and

the Virgil Fire District.

NYS Common Retirement Fund Announces Third Quarter Results

The New York State Common Retirement Fund’s (Fund) estimated rate of return for the third quarter ending Dec. 31, 2013 was 5.14 percent, increasing the Fund’s value to an estimated $173.2 billion, according to New York State Comptroller Thomas P. DiNapoli. The Fund ended its fiscal year on March 31, 2013 at $160.7 billion.

DiNapoli Announces $200 Million Commitment for Opportunistic Investments

New York State Comptroller Thomas P. DiNapoli announced on Friday, February 14, 2014  that the New York State Common Retirement Fund has allocated $200 million to Pine Street Alternative Asset Management for opportunistic investments through its Emerging Manager Program. DiNapoli made the announcement during his address to attendees at the seventh annual Emerging Manager Conference in Albany on Friday, February 14, 2014.
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A court’s review of an administrative hearing conducted pursuant to law is limited

A court’s review of an administrative hearing conducted pursuant to law is limited
2014 NY Slip Op 00663, Appellate Division, Second Department

The Civil Service Law §75 disciplinary hearing officer found the employee against whom disciplinary charges and specifications had been filed [Petitioner] guilty of certain disciplinary charges and recommended that the employee be terminated from the position. The Board of the Public Library adopted the hearing officer’s findings and recommendation as to the penalty to be imposed and dismissed Petitioner.

The Appellate Division confirmed the Board’s action on the merits and dismissed Petitioner’s Article 78 compliant seeking to overturn the Board’s decision, with costs. 

The court said “Judicial review of an administrative determination made after a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record,” citing 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176 and other decisions.

Quoting from Matter of Berenhaus v Ward, 70 NY2d 436, the Appellate Division explained that in the event there is conflicting evidence or different inferences may be drawn from the evidence, "the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists."

In this instance any credibility issue was resolved by the hearing officer and the Appellate Division found no basis upon which to disturb the hearing officer's determination as it was supported by substantial evidence.

Rejecting Petitioner's argument to the contrary, the court ruled that under the circumstances presented, the penalty of termination of Petitioner's employment was not so disproportionate to the offense committed as to be shocking to one's sense of fairness, citing the Pell Doctrine [Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00663.htm

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Mayors to speak at Albany Law School

Mayors to speak at Albany Law School

Hosted by Albany Law School’s Government Law Center, Albany Mayor Kathy Sheehan, Rochester Mayor Lovely Warren and Saratoga Springs Mayor Joanne Yepsen will discuss their journeys to elected leadership, their personal insights on the equitable participation of women in politics and government, and the unique responsibility of running a city government.

The program, which will be held on Wednesday, February 19, 2014, 4:00 p.m.-5:30 p.m. at the Albany Law School, 80 New Scotland Avenue, Albany in the Dean Alexander Moot Courtroom, is free and open to the public.

To attend the reception following the discussion, please call Ms. Amy Gunnells,518-445-2329, or e-mail her at gunn@albanylaw.edu. 
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Unemployment insurance benefits claimant’s showing of “good cause” for failing to comply with registration requirements requires granting of her application for benefits

Unemployment insurance benefits claimant’s showing of “good cause” for failing to comply with registration requirements requires granting of her application for benefits

2014 NY Slip Op 00270, Appellate Division, Third Department

The Unemployment Insurance Appeal Board ruled that a teacher [Claimant] was ineligible to receive unemployment insurance benefits because she failed to comply with registration requirements.

Claimant served as a part-time public school teacher. Believing that she would be rehired during the following school year in the same capacity or as a substitute teacher, she did not file a claim for unemployment insurance benefits during the intervening summer.

When Claimant was not rehired and was unable to work as a substitute, she filed a claim for unemployment insurance benefits. Her claim was ultimately considered by the Unemployment Insurance Appeals Board and denied on the ground that she failed to comply with the applicable registration requirements.

Acknowledging that “it is well settled that registering and certifying for benefits in accordance with the requirements of the Labor Law and applicable regulations is a prerequisite to eligibility, the Appellate Division noted that  … “the failure to comply with such requirements may be excused for good cause shown,” which is a factual issue for the Board to resolve.

Here, however, Claimant testified that she failed to register because her employer gave her a reasonable assurance that her employment would be continued during the 2012-1013 school year and, therefore, she did not think that she was eligible for benefits. Indeed, Claimant indicated that she previously had applied for benefits under similar circumstances and her claim was denied upon the basis that she had been given a reasonable assurance of continued employment.*

Claimant also testified that she did not file the claim at issue until it became clear that she would not be rehired as a regular part-time teacher and that she could not be retained as a substitute due to licensing problems. Notably, said the court, no evidence was introduced to contradict Claimant’s testimony.

The Appellate Division, noting that the unemployment insurance handbook instructed Claimant otherwise, said that such instruction was understandably confusing in light of Claimant's past experience.

Accordingly, the court ruled that “under the particular circumstances presented, we find that the Board's decision is not supported by substantial evidence given that [Claimant] demonstrated good cause for her failure to comply with the registration requirements.”

* A temporary teacher’s eligibility for unemployment insurance benefits upon termination of his or her temporary employment depends on whether or not he or she has been given “a reasonable assurance of continued employment” within the meaning of Section 590.10 of the Labor Law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00270.htm
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The four-month statute of limitations set out in Article 78 of the Civil Practice Law and Rules applies when challenging a pubic retirement system’s administrative decision

The four-month statute of limitations set out in Article 78 of the Civil Practice Law and Rules applies when challenging a pubic retirement system’s administrative decision
2013 NY Slip Op 08026, Appellate Division, First Department

The contingent beneficiary [Petitioner] of a member of the New York City Teachers’ Retirement System was advised that she would not receive benefits under the deceased member's qualified pension plan (QPP) because he died prior to his date of retirement and thus the deceased member’s designated in-service beneficiary was entitled to the benefits.

Petitioner then filed an Article 78 petition challenging the Retirement System’s decision, seeking a judgment that she was entitled to either a determination of her rights as contingent beneficiary under the decedent’s qualified pension plan (QPP) or an order   directing the System to pay her benefits as a contingent beneficiary of the deceased member’s QPP.

Supreme Court dismissed her petition as untimely, finding that Petitioner failed to file a proceeding to challenge that determination within the requisite four-month period. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division noted that “The parties agree that the four month statute of limitations controls this action, which challenges an agency determination” and that Petitioner failed to file her action within that four-month period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08026.htm
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A public official employed in a major nontenured policymaking or advisory position is ineligible for unemployment insurance benefits based on such service

A public official employed in a major nontenured policymaking or advisory position is ineligible for unemployment insurance benefits based on such service
2014 NY Slip Op 00721, Appellate Division, Third Department

§527(1) of the Labor Law sets out the qualifications that an Unemployment Insurace claimant must satisfy in order to file a valid original claim entitling him or her to receive unemployment insurance benefits. §527(1)(d) requires that the claimant must be "paid remuneration by employers liable for contributions . . . for employment during at least two calendar quarters of the base period.

In this appeal the issue was whether an individual [Claimant] appointed to a position of Deputy Commissioner by the Governor who applied for unemployment insurance benefits after her term of office ended was “paid remuneration by employers liable for contributions.”

Initially the Department of Labor denied the claim, finding that Claimant, as a Deputy Commissioner, [1] held a major nontenured policymaking or advisory position while employed by the State, and [2] such service could not be used as base period employment for purposes of establishing a valid original claim for unemployment insurance benefits.

Although this determination was overruled by an Administrative Law Judge, ultimately the Unemployment Insurance Appeal Board sustained the initial determination and ruled that Claimant was not eligible to receive unemployment insurance benefits.

The Appellate Division affirmed the Appeal Board’s decision explaining that [1] Labor Law §527(1) sets out the qualifications that a claimant must meet in order to file a valid original claim entitling him or her to receive unemployment insurance benefits and [2] Labor Law §527[1][d] requires that the claimant must be "paid remuneration by employers liable for contributions . . . for employment during at least two calendar quarters of the base period."

The decision then points out that Labor Law §565(2)(e) provides that services rendered for a governmental entity by a person “in a major nontenured policymaking or advisory position" is not employment for the purposes of establishing eligibility for Unemployment Insurance benefits.

The issue to be resolved, said the Appellate Division, is whether the Labor Law §565(2)(e) exclusion applies with respect to Claimant employment during the applicable base period.

Finding that “… the performance standards applicable to [Claimant’s] position supported the Appeals Board’s determination that Claimant held a "major nontenured policymaking or advisory position," the Appellate Division ruled that there was a rational basis for the Board's finding that Claimant’s service during the period in question “could not be used as base period employment for purposes of establishing a valid original claim” and dismissed the appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00721.htm
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