NYC not required to make “increased-take-home-pay" retirement contributions for police officers and firefighters appointed after June 30, 2009

NYC not required to make “increased-take-home-pay" retirement contributions for police officers and firefighters appointed after June 30, 2009

Lynch v City of New York, 2014 NY Slip Op 04873, Court of Appeals

The bottom line of a very comprehensive opinion in which the Court of Appeals addressed whether Retirement and Social Security Law §480 (b) requires the City of New York (the City) to make "Increased-Take-Home-Pay" (ITHP) pension contributions on behalf of New York City police officers and firefighters appointed on or after July 1, 2009 -- the City is not required to make such contributions.

The Court of Appeals ruled that “For the reasons that follow, we conclude that section 480 (b) only encompasses temporary programs in place as of 1974 for tier 1 and 2 members of a public employee retirement system. Stated another way, section 480 (b) does not obligate a public employer to pay any portion of a tier 3 public employee's statutorily required pension contribution. Accordingly, the City has properly deducted 3% from the gross annual wages of its tier 3 police officers and firefighters as mandatory employee pension contributions.”

The text of the decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_04873.htm

2014 End-of-Session Legislative Review.

2014 End-of-Session Legislative Review.  

NYMUNIBLOG has posted an article by Jillian D. Kasow, Esq. – 2014 End-of-Session Legislative Review.  

Ms. Kasow notes that on June 20th, the New York State Legislature concluded the second year of its 2013-14 legislative session and lists some key legislation passed during the Session.

You may view the latest post at
http://nymuniblog.com/2014-end-of-session-legislative-review/

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Internal Revenue Service severance pay advisory update

Internal Revenue Service severance pay advisory update

Source: Office of Federal, State and Local Governments

In its July 2013 newsletter,*the Internal Revenue Service’s Office of Federal, State and Local Governments [FSLG] addressed the tax treatment of severance payments made by government entities to terminated employees by the Internal Revenue Service [IRS]. The article, Severance pay and FICA, noted that under Internal Revenue Code §61 severance pay is included [1] in the gross income of the recipient and normal income tax withholding rules apply and [2] severance pay is generally wages for purposes of FICA taxes.

In its decision in United States v. Quality Stores, 134 S.Ct. 1395 [2014], the United States Supreme Court held that severance payments made to involuntarily terminated employees were wages subject to Social Security and Medicare (FICA) taxes. Accordingly, IRS advises it will disallow all claims for refunds of FICA taxes on severance pay.

However, IRS Revenue Ruling 90-72 provides a limited administrative exception for certain payments that supplement state unemployment compensation, sometimes referred to as “SUB-pay.” The Ruling provides for an exception for a stream of payments coordinated with the receipt of unemployment compensation and specifically points out that a lump-sum payment would not qualify for the exception. IRS said that as the Supreme Court decision did not address the provisions of Revenue Ruling 90-72, payments that meeting Ruling 90-72 requirements stated in that ruling continue to be excluded from wages for FICA purposes.

Questions about severance pay should be directed to one of the following Federal, State and Local Government [FSLG] Specialists for New York State: Dave Coulon [(315) 233-7305]; Jean Redman [(607-378-0069] or Granville Shannon [(212) 436 -1492].

* The July 2013 is posted on the Internet at: http://www.irs.gov/pub/irs-tege/p4090_0713.pdf. The FSLG Newsletter is asemiannual newsletter published by the Internal Revenue Service’s office of Federal, State and Local Governments (FSLG) to assist in FSLG’s mission to ensure compliance by Federal, state, and local governmental entities with Federal employment and other tax laws through educational and compliance review activities.

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Suspension without pay

Suspension without pay
2014 NY Slip Op 04860, Appellate Division, First Department

The employee [Plaintiff] was suspended without pay indefinitely pursuant to Article III(9) of the collective bargaining agreement (CBA) based on his failure to provide a proper accounting of funds allocated to him in connection with his employment. He remained suspended without pay until he retired on November 30, 2004. 

The disciplinary arbitration panel found that Plaintiff had been improperly suspended without pay for more than 30 days, in violation of the CBA, and awarded him wages and benefit contributions for the period from 30 days after his suspension through the date of the first arbitration hearing, which was held September 29, 2005. The employer filed a CPLR Article 75 petition challenging the arbitration award.

Noting that Civil Service Law §75(3) was incorporated into the CBA under Article XVII(4)(B), the Appellate Division agreed with the employer that since the CBA and Civil Service Law §75(3) both permit back-pay awards only for periods of improper suspension, even if the grievant was suspended improperly and held that the arbitrators exceeded their power by awarding Plaintiff back pay for a period of time following his voluntary retirement.

Accordingly, the Appellate Division unanimously modified the arbitration award, on the law, to define the period for the purposes of awarding Plaintiff back pay and benefits ran from 30 days after Plaintiff’s suspension without pay through the date of the Plaintiff's retirement rather than for period running from 30 days after his suspension without pay through the date of the first arbitration hearing,

In effect the court ruled that an individual improperly suspended without pay was entitled to back pay for any suspension without pay in excess of the 30-day period authorized by §75(3) only through the effective date of his or her separation from service such as the result of his or her retirement, resignation or death. Presumably the same limitation would apply in situations where the individual services would otherwise terminate by operation of law, rule or regulation while he or she was improperly suspended without pay.

 ____________________

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Attaining tenure by estoppel or acquisition

Attaining tenure by estoppel or acquisition

Files v Department of Educ. of the City of New York, 2014 NY Slip Op 04713, Appellate Division, First Department

Typically a probationary teacher or administrator will attain tenure by estoppel or acquisition when a school board accepts the continued services of the teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher’s or administrator’s probationary term.

The Appellate Division sustained a State Supreme Court decision rejecting a probationary teacher’s [Teacher] petition by which she sought a court order annulling her employer’s decision to deny her tenure and to terminate her employment, contending that she had attained tenure by estoppel.

As to Teacher’s claim that she had attained tenure by estoppel, the Appellate Division said the she had failed to demonstrate that she acquired tenure by estoppel or acquisition as the record demonstrated that she did not perform the duties of a teacher beyond her probationary term. The decision notes that Teacher’s employer made it clear to her that she would not be given tenure and, at most, would be offered an extension of her probationary period. Teacher, however, declined the offer to extend her probationary period.

Significantly Teacher was not placed in a classroom nor did she perform any traditional teaching functions immediately prior to the expiration of her probationary period. Rather, said the Appellate Division, the record demonstrates that she performed administrative tasks instead of traditional teaching duties.

The Appellate Division also rejected Teacher’s allegation that her employer had “engaged in bad faith when it terminated her employment” as the record indicated that Teacher had received “two letters of misconduct and an unsatisfactory performance rating.”

One exception to the general rule: In Mendez v Valenti, 101 AD2d 612 the Appellate Division held that as long as the termination of a probationer appointed to a position in the classified service is effected within a reasonable time after the end of his or her maximum period of probation, such as set to coincide with the end of the next payroll period, he or she does not attain tenure by estoppel or acquisition notwithstanding his or her continuation on the payroll. 

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Arbitrator’s imposing a penalty of suspension without pay rather than termination did not violate public policy

Arbitrator’s imposing a penalty of suspension without pay rather than termination did not violate public policy

Roberts v City of New York, 2014 NY Slip Op 04706, Appellate Division, First Department

A twenty-two year employee was involved in a traffic accident while driving a Department vehicle under the influence of alcohol. After a hearing at which both sides presented testimony and documentary evidence, an arbitrator rejected the Department’s preferred penalty of termination, ruling instead that the unpaid suspension, which had lasted nearly two years, imposed on the employee immediately after the accident was a sufficient penalty for an employee who had an otherwise unblemished employment history and who had admitted his addiction to alcohol and had taken full responsibility for his misconduct.

The arbitrator, considering the employee's remorse and completion of his rehabilitation programs, ordered him reinstated as a Department employee to “a position commensurate with his experience,” but ruled that the Department did not have to restore him to a position requiring that he drive department vehicles until it was confident that he had been rehabilitated.

The Department then filed a petition pursuant to Article 75 of the CPLR seeking to vacate the arbitration award, contending that that termination was the only appropriate penalty under the circumstances. Supreme Court dismissed the Department’s petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division, considering the record and the findings made by the arbitrator, ruled that the Department had not established that the arbitration award should be vacated, explaining that the arbitrator’s award did not violate public policy and the Department failed to cite to any well-defined constitutional, statutory or common law principle that the award violated.

In the words of the Appellate Division, “as the arbitrator grounded his reasoning in the evidence, including an assessment of the employee as frank and apologetic,” the Department’s contention that termination is the only appropriate penalty “is without merit,” citing United Federation of Teachers, Local 2 v Board of Education, 1 NY3d 72.

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Determining the existence of an employer-employee relationship for the purposes of eligibility of Unemployment Insurance benefits and the payment of required employer contributions

Determining the existence of an employer-employee relationship for the purposes of eligibility of Unemployment Insurance benefits and the payment of required employer contributions

2014 NY Slip Op 04544, Appellate Division, Third Department

The school district [District] challenged two decisions issued by the Unemployment Insurance Appeals Board holding that::

1. The District was the employer of a claimant for Unemployment Insurance benefits; and

2. The District was required to pay additional unemployment insurance contributions based on remuneration paid to the claimant and other individuals similarly situated.

The Appellate Division affirmed the Board’s determination, explaining that “Whether there exists an employee-employer relationship is a factual question to be resolved by the Board and we will not disturb its determination when it is supported by substantial evidence in the record.”

The court pointed out that the Board’s determination regarding an employer-employee relationship “rests not on one single factor, but consideration is given to whether control was exercised over the results or the means used to achieve those results, with the latter factor deemed more important.”

In this instance the claimant testified that, among other things, she was provided with a school district computer for use in coordinating the District's program, maintained a file cabinet and mailbox at the school, was given use of the photocopier and postage machine, and had access to school district transportation. Claimant also testified that she performed most of her work at the school, including some tasks that were required to be performed there.

Claimant further testified the District’s Superintendent had disapproved classes, directed claimant to hire a specific teacher against her wishes, had final approval over her canceling classes; and that claimant was required to seek approval before assigning herself to teach a class and that request had been denied.

In addition, both the claimant and the Superintendent testified that, in addition to claimant’s duties supervising the school district’s adult education program, she also provided office help and performed general records management duties for the school district.

The Appellate Division ruled that that notwithstanding evidence that might support a different conclusion, it found that substantial evidence supported the Board's decision. Accordingly the Board’s rulings were affirmed, requiring the school district to make the appropriate additional Unemployment Insurance contributions based on remuneration paid to the claimant and the remuneration it had paid to others similarly situated and, in addition, sustained the Board’s order requiring payments of Unemployment Insurance benefits to the claimant.

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Special duty must be demonstrated in order to recover for an alleged negligent performance of a governmental function

Special duty must be demonstrated in order to recover for an alleged negligent performance of a governmental function

2014 NY Slip Op 04464, Appellate Division, Second Department

While employed by the New York City Department of Education (Department) as a school social worker [Worker] allegedly was injured when two kindergarten students collided with her in a school hallway. Worker commenced an action against the Department and the City of New York, alleging negligent supervision.

The Supreme Court granted Department's motion for summary judgment dismissing the complaint. The Appellate Division sustained the lower court’s ruling. The court explained that a school district may not be held liable for the negligent performance of its governmental function of supervising children in its charge, “at least in the absence of a special duty to the person injured.” Under the doctrine that a school district acts in loco parentis with respect to its minor students, a school district owes a "special duty" to the students themselves in contrast to owing a special duty to teachers, administrators, and other adults on or off of school premises. Thus a school district may be held liable to a student when it breaches that duty, so long as all other necessary elements of a negligence cause of action are established.

In contrast, this special duty owed to the students themselves does not, as a general matter, carry over to teachers, administrators, and other adults on or off of school premises.

Here, said the Appellate Division, the Department established  prima facie, that it did not owe the Worker a special duty and Worker did not raise a triable issue of fact.

Under the circumstances, it appears that Worker would be able to claim Workers’ Compensation benefits if otherwise applicable with respect to her alleged injury but has no cause of action for any alleged negligent supervision of the students on the part of the Department.
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Unblemished work record not sufficient to mitigate imposing termination as the disciplinary penalty for the employee’s misconduct under the circumstances

Unblemished work record not sufficient to mitigate imposing termination as the disciplinary penalty for the employee’s misconduct under the circumstances

2014 NY Slip Op 04252, Appellate Division, First Department

The Appellate Division, finding that the disciplinary determinations were supported by substantial evidence and the penalty imposed by the appointing authority, termination of employment, did not shock its sense of fairness, dismissed the appeal of the petitioner.

The court said that the record demonstrated that in addition to the petitioner's misconduct in purchasing cocaine while on duty, he had, on two separate occasions, carried out his job responsibilities in a manner that involved health and safety risks, and that, in fact, resulted in actual physical injury to others.

Although the petitioner “had an otherwise unblemished work history” the Appellate Division indicated that this did not constitute “mitigation” sufficient to warrant a different determination.

____________________________

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://booklocker.com/books/7401.html

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Employer provided retirees with the health benefits to which they were entitled upon retirement under the collective bargaining agreement

Employer provided retirees with the health benefits to which they were entitled upon retirement under the collective bargaining agreement

Non-instruction Adm'rs & Supervisors Retirees Assn. v School Dist. of City of Niagara Falls, 2014 NY Slip Op 04299, Appellate Division, Fourth Department

18 retired employees of School District of City of Niagara Falls (District), and their retirees association commenced a breach of contract/declaratory judgment action seeking a declaration that the individual retirees are entitled to the health insurance benefits provided in the collective bargaining agreement (CBA) in effect at the time each individual retired.

Supreme Court granted the District's motion to dismiss the complaint and the retirees appealed. The Appellate Division modified the Supreme Court’s ruling in part, declaring that the individual retirees are not entitled to the health insurance coverage provided in the CBA in effect at the time each individual retired.

The Appellate Division agreed with the District that the language in the CBAs at issue is clear and unambiguous and thus that extrinsic evidence may not be considered.

The contract provision at issue stated: The District "shall assume the full cost of health insurance coverage and major medical . . . for each employee in the negotiating unit covered by this Agreement lawfully retiring in the future." The CBAs further state that "[t]he coverage so provided shall be the same type that the employee would have had if he/she had continued employment.When the retiree reaches his/her sixty-fifth (65th) birthday and qualifies for Medicare . . . , the type of health insurance and major medical coverage shall be changed to cover his/her new circumstances" (emphasis by the court).

The retirees contended that this provision provided that retirees are "entitled to the benefits they received at the time they each retired" (emphasis added by the court). Such an interpretation, said the court, “contravenes the plain meaning of the contractual language.”

The Appellate Division concluded that the plain meaning of the language set out in the collective bargaining agreement is that, upon retirement, a retiree will receive health insurance coverage of the same type received by active employees at that point in time. Thus, if health insurance for active employees changes over the years based on rising health care costs and successive collective bargaining agreements, the health insurance provided to retirees also will change because the health insurance of the retirees would be subject to the same changes if they had continued employment.

The Appellate Division explained that “Rather than fixing retiree coverage as of the date of retirement, the use of the word "would," a conditional verb indicating the consequence of an imagined or theoretical event or situation, expressly contemplates that the coverage provided to retirees will mirror the coverage provided to active employees.”

A retiree of the District is therefore entitled to the type of health insurance that he or she would have had if the retiree had never left the District's employ, i.e., the health insurance coverage negotiated by the active employees and the District at any given point in time 

As the retirees conceded that the individual retirees receive the same health insurance coverage as active employee, the Appellate Division concluded that they were receiving the health care benefits to which they were contractually entitled.
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New York State Comptroller Thomas P. DiNapoli announced today that his office has identified more than $5 million in unclaimed funds for local governments across the state.

New York State Comptroller Thomas P. DiNapoli announced today that his office has identified more than $5 million in unclaimed funds for local governments across the state.

Source: NEWS From the Office of the New York State Comptroller Thomas P. DiNapoli

Posted June 18, 2014.

After reaching out and alerting officials from counties, cities, towns and villages of this lost money, DiNapoli’s office has returned more than $1.5 million so far. DiNapoli’s office oversees the state’s 31 million unclaimed funds accounts, valued at more than $13 billion.

“Every dollar owed to local governments should be collected and put to good use to help provide essential services for New Yorkers and to relieve the burden on taxpayers around the state,” DiNapoli said. “My office has returned more than $1.5 million in unclaimed funds to local governments in the last few weeks, but $3.5 million is still waiting to be claimed. I encourage local government officials to work with my office so that we can return the money as soon as possible.”

DiNapoli’s office identified nearly 10,000 unclaimed funds accounts valued at $5,023,246 by matching the names of 1,600 local governments against the state’s unclaimed funds database. The search found 6,592 accounts valued at $3.8 million owed to counties (including New York City’s five boroughs), 800 accounts valued at $317,232 owed to cities, 1,552 accounts valued at $636,232 owed to towns and 798 accounts valued at $262,908 owed to villages. 

Representatives from DiNapoli’s office sent letters to financial officers of local governments that appear in the unclaimed funds database and asked them to confirm ownership in order to process the claims and return the money. Ownership is verified by demonstrating a connection to the address or the account associated with the funds. 

Click hereto view a chart showing the number of outstanding accounts in the name of local governments, and the values, by region.

It often requires a bit of imagination to find an entity as the names reported in Comptroller's listing may differ substantially from the agency's or organization's "official name" as the example for “Board of Education” listed 23 jurisdictions while Bd of Ed listed 13 districts and high school listed 29 names.

Using generic names such as the following produced the number of  "hits" indicated:

County of                    108

County Clerk             81

Town of                       411

Town Clerk                 2

Village of                    165

Village Clerk              1

Police Dept                 4

SUNY                          187

BOCES                       31

Central School             8

CSD                            13

Union Free School      5

Employee organizations reported by the Comptroller include the following

Faculty Asso               3

CSEA Local                6

PEF                        6

State and local governments and other organizations can search the Comptroller's site via the “Search for Organization” link on the Office of Unclaimed Funds’ website or by calling the call center toll-free at 1-800-221-9311.

Alternative disciplinary procedures

Alternative disciplinary procedures

2014 NY Slip Op 04293, Appellate Division, Fourth Department, Motion for leave to appeal granted, Motion No: 2013-804, 2013 NY Slip Op 88892. 

A tenured teacher [Teacher] filed a petition in Supreme Court pursuant to CPLR Article 78 seeking a court order annulling two disciplinary actions taken against her by the school district that resulted in her being suspended without pay for two days with respect to one disciplinary action and suspended for five days without pay for the other.

The Appellate Division held that Supreme Court erred in denying Teacher’s petition to annul the school district's actions, explaining that Teacher “was entitled to choose whether to be disciplined under the procedures set forth in the [collective bargaining agreement] or those set forth in [Education Law §] 3020-a," as the school district incorrectly denied Teacher's written request for a §3020-a hearing," citing it’s earlier ruling in Kilduff v Rochester City School District, 107 AD3d 1536.

This will not be the first time that the Court of Appeals will be asked to address the issue of an employee choosing between alternatives disciplinary procedures. In Antinore v State, 40 NY2d 6, the Court sustained a ruling by the Appellate Division* holding that a union could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure as long as the alternate disciplinary procedure provided administrative due process protections at least equivalent to those provided by the statutory procedure.

The initial collective bargaining agreements negotiated by the State as an employer and the Civil Service Employees Association with respect to employees in negotiating units represented by CSEA, provided that an individual in the negotiating unit served with administrative disciplinary charges could elect either the “contract disciplinary procedure,” whereby the charges would be heard by an arbitrator, or, in the alternative, elect to have the matter considered pursuant to the relevant statutory disciplinary procedure, in this instance Civil Service Law §75.

The issue in Antinore: Antinore initially elected the contract disciplinary procedure and when he was found guilty by the arbitrator, claimed that he was now entitled to administrative due process which required that he now be given another disciplinary hearing pursuant to Civil Service Law §75. The Appellate Division rejected Antinore’s theory, which decision was sustained by the Court of Appeals, holding that if the negotiated alternative to the §75 disciplinary procedure afforded the accused individual the at least equivalent administrative due process, his or her Constitutional right to due process was satisfied.

* Donald Antinore v. State New York et al, 49 A.D.2d 6.

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The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

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Notices required to be given to probationary employees

Notices required to be given to probationary employees

A NYPPL reader asks: “Is there a requirement (law or rule) that requires a specific action on part of the Appointing Authority to notify a recently promoted employee he/she completed or failed to complete a probationary period?”

NYPPL’s response: Yes and no, depending on the circumstances.

As to the notice that the appointing authority is required to give to a probationary employee, Subdivision 2 of §63 of the Civil Service Law, Probation, provides as follows: “The state civil service commission and municipal civil service commissions shall, subject to the provisions of this section, provide by rule for the conditions and extent of probationary service.” These rules typically set out the “notice requirements” to be provided to probationary employees by the appointing authority.

With respect to employees of the State as the employer and employees of public entities for which the New York State Department of Civil Service administers the Civil Service Law, 4 NYCRR 5.3(b)(5)(i) provides: “(5)(i) An appointment, promotion or transfer shall become permanent upon the retention of the probationer after his or her completion of the maximum period of service or upon earlier written notice following completion of the minimum period that his or her probationary term is successfully completed or, in the case of a transferee, upon written notice that the appointing authority has elected to waive the serving of the probationary term.”

Clearly written notice that the probationary employee has attained tenure in the position is required only in the event the appointing authority elects to grant the probationer tenure after he or she has completed the minimum period of probation and prior to his or her completion of the maximum period of probation for the position or the appointing authority elects to waive the probationary period for a “transferee.

Requiring such a writing to validate an appointing authority's exercising its discretion to waive or truncate an employee's probationary period avoids the situation considered by the court in Snyder v Civil Service Commission, 72 NY2d 981, a case involving a temporary appointee's claim to contingent permanent appointment status pursuant to Civil Service Law Section 64.4. The court ruled that an individual must specifically appointed as a contingent permanent employee by the appointing authority, which status is granted solely at the discretion of the appointing authority. A writing would clearly demonstrate such an action on the part of the appointing authority.


In any event, it is good personnel practice to notify the probationary employee that he or she has successfully completed his or her probationary period even if not so required by rule or regulation.

With respect to employees of the State as the employer and employees of public entities for which the New York State Department of Civil Service administers the Civil Service Law, 4 NYCRR 5.3(b)(5)(iii) in relevant part provides: (iii) “A probationer whose services are to be terminated for unsatisfactory service shall receive written notice at least one week prior to such termination and, upon request, shall be granted an interview with the appointing authority or his representative” [emphasis supplied]. Municipal Civil Service Commissions and Personnel Officers have adopted similar rules or regulations.*

In the event a probationary employee is continued in the position beyond the maximum period of his or her probation and is not given timely notice that he or she has not satisfactorily completed the required probationary period, or that his or her probationary period has been extended as permitted by rule or regulation, he or she is deemed attained tenure by estoppel,** also referred to as “tenure by acquisition.” In the event the appointing authority wishes to terminate the services or otherwise discipline an employee who has attained tenure by estoppel or acquisition, the employee is entitled to administrative due process, including notice and hearing, as provided by §75 of the Civil Service Law or the disciplinary procedure set out in a collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law, the “Taylor Law.”

What constitutes “timely notice” that the individual has failed to satisfactorily complete his or her probationary employee? The required notice of the termination is to be delivered to the employee before close of business on the last day permitted by the controlling rule or regulation even if the employee's actual removal from the payroll may be effective after this date. In Mendez v Valenti, 101 AD2d 612, the Appellate Division held that as long as the termination of a probationer in the classified service is effected within a reasonable time after the last day of his or her probationary period, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel or acquisition because of his or her continuation on the payroll beyond the last day of his or her probationary period.

On occasion the date of appointment to the position becomes a critical issue. Such was the case in Mallon v Parness, 167 A.D.2d 614. “Mallon contended that he had been promoted to Sergeant, subject to a twenty-six week probationary period, effective July 18, 1988. He claimed that he thus completed his probationary period on January 18, 1989. He offered an affidavit from the former Mayor of Suffern supporting his claim of appointment effective July 18. The employer, on the other hand, submitted documentary evidence showing that Mallon had been promoted to the Sergeant position effective October 26, 1988 in support of its claim that he had not yet completed his probationary period when he was terminated from the Sergeant position. To further complicate the matter, the records of the Rockland County Personnel Office indicated that Mallon was appointed Sergeant effective June 1, 1988.***The Appellate Division remanded the matter to Supreme Court for its determination as to which was the “official” effective date of Mallon’s promotion to Sergeant.

* In Vetter v Board of Educ., Ravena-Coeymans-Selkirk Cent. School Dist., 14 NY3d 729, the Court of Appeals observed that Education Law §3019-a requires school authorities to give probationary teachers written notice of termination at least 30 days before the effective date of termination.

** See, for example, Wamsley v East Ramapo Central School District, 281 A.D.2d 633.

*** In the event there is a conflict as to the effective date of appointment to a position in the Classified Service, typically the date of such appointment recorded in the records of the Civil Service Commission, Department or Personnel Officer having jurisdiction would control.

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Motion to dismiss a cause of action based on a defense of collateral estoppel and res judicata rejected

Motion to dismiss a cause of action based on a defense of collateral estoppel and res judicata rejected

2014 NY Slip Op 02999, Appellate Division, Third Department

A former teacher [Teacher] challenged a decision by the Board of Education [Board] reinstating another former teacher whose name was on the preferred list ahead of Teacher to fill a vacant teaching position.

Teacher complained that the Board had improperly calculated her seniority to her detriment with respect the placement of her name on the preferred list. The Board, however, moved to dismiss the proceeding on grounds, among other reasons, collateral estoppel and res judicata, contending that the dismissal of a prior proceeding challenging the earlier reinstatement of a different former teacher rather than Teacher to fill another vacant position barred the instant proceeding.

The earlier proceeding had been dismissed based on, among other things, Teacher's failure to commence the proceeding within four months of the determination to recall the other teacher. Supreme Court granted the Board's motion to dismiss Teacher’s instant action on collateral estoppel grounds and Teacher appealed.

The Appellate Division reversed the lower court’s ruling, explaining that in order for collateral estoppel to apply, there must be an identity of a decisive issue between the present and prior proceedings which was necessarily decided in the prior proceeding, and the party who will be estopped must have been afforded a full and fair opportunity to litigate the issue in the prior proceeding.

Here, however, although Teacher raised an issue identical to the one she had raised in her earlier action, -- was she is entitled to more seniority credit than the Board gave her -- that issue has never been decided on the merits as it had been dismissed on procedural ground, having been untimely filed.

Citing Town of Oyster Bay v Commander Oil Corp., 96 NY2d 566, the Appellate Division ruled that [b]ecause the issue of whether [Teacher] is entitled to more seniority has not been decided, it is not barred by collateral estoppel and remanded the matter to Supreme Court for further proceedings “not inconsistent with" its ruling.

 _________________________________

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

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Injury suffered on the way to work not typically viewed as “arising out of and in the course of employment”

Injury suffered on the way to work not typically viewed as “arising out of and in the course of employment”

Trotman v New York State Cts., 2014 NY Slip Op 03002, Appellate Division, Third Department

A senior court officer [Officer] was injured shortly before the beginning of his work shift when he slipped and fell on ice. The incident occurred on a public sidewalk that he was traversing to reach the government center after parking his car on the street.

Although the Workers' Compensation Law Judge established the claim, the Workers' Compensation Board denied his ensuing application for workers' compensation benefits, finding that his injury did not arise out of and in the course of his employment. Claimant now appeals.

The Appellate Division affirmed the Board’s determination explaining that "Accidents that occur on a public street away from the place of employment and outside working hours generally are not considered to arise out of and in the course of employment." As Officer’s accident occurred near his place of employment, his claim falls within "a gray area where the risks of street travel merge with the risks attendant with employment and where the mere fact that the accident took place on a public road or sidewalk may not ipso facto negate the right to compensation." 

In contrast, said the court, in order for such an injury come within the ambit of eligibility for workers' compensation benefits, the injury must result from "(1) a special hazard at the particular off-premises point and (2) a close association of the access route with the premises, so far as going and coming are concerned."

Further, said the court, the fact that Officer was directed to travel to another court facility after he arrived at work on the day in question “does not compel a different result.”
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California Superior Court Judge holds that California's teacher tenure laws are unconstitutional,

California Superior Court Judge holds that California's teacher tenure laws are unconstitutional

Source: Findlaw – Breaking Legal Documents [By Adam Ramirez, June 10, 2014]

“California's laws on teacher tenure, layoffs and dismissals deprive students of their constitutional right to an education, a Los Angeles Superior Court judge ruled Tuesday, June 10, 2014.*

“The ruling is a serious defeat for teachers' unions that overturns several California laws that govern the way teachers are hired and fired. 

“The 16-page decision (see Internet link below) may set off a slew of legal fights in California and other states, where many education reform advocates are eager to change similar laws.

‘There is ... no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms,’ Judge Rolf M. Treu wrote. ‘Substantial evidence presented makes it clear to this court that the challenged statutes disproportionately affect poor and/or minority students. The evidence is compelling. Indeed, it shocks the conscience’

“Enforcement of the much awaited ruling in Vergara v. California will be delayed pending an appeal by the lawsuit's defendants, the state and California's two major teachers unions.”

Court in New York State have addressed efforts by a number of school districts to “eliminate tenure.”

In Conetta v Patchogue-Medford Union Free School District, 165 Misc2d 329, a New York State Supreme Court Judge ruled that a school board could not refuse to grant tenure to a teacher who had successfully completed his or her probationary period because it believed that "that tenure at the elementary and secondary school level [in contrast to tenure granted to college and university faculty] was essentially guaranteed job security ... coupled with automatic salary increases."

Similarly, in Costello v East Islip UFSD Supreme Court** ruled that a school board could not refuse to grant tenure to a teacher who had successfully completed his or her probationary period. 

Apparently mindful of the Conetta ruling, East Islip decided to take a different tack in an effort to avoid having to give newly hired teachers tenure upon their satisfactory completion of probation by adopting a resolution providing that all new teachers hired by the School District were to be employed under individual contracts providing for specified terms of employment.

To emphasis the point, the contracts included provisions intended to constitute "waivers" of the probation and disciplinary rights provided to teachers in the Education Law. The court noted that the characterization of the waiver as "voluntary" is questionable since there was no indication that any teacher refusing to agree to such a waiver would be hired.

The Appellate Division affirmed, holding although East Islip was correct that a teacher's rights with respect to tenure are waivable when the waiver is "freely, knowingly, and openly arrived at without the taint of coercion or duress," this does not, however, give the Board the authority to eliminate the tenure system altogether. 

Citing Carter v Kalamejski, 255 App Div 694, aff'd 280 N.Y. 803, the Appellate Division explained that “the tenure system is a legislative expression of a firm public policy determination that the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom and to protect competent teachers from the threat of arbitrary dismissal.” In contrast, the court observed that providing tenure by contract terminating automatically at the expiration of the contract period as proposed by East Islip was “the very system sought to be eliminated by the enactment of the tenure statutes of the Education Law and the change to a system of permanence.”***

In Conetta, State Supreme Court Judge Lockman suggested that if a school district wishes to stop granting tenure, it could make such a demand in the course of collective negotiations authorized by Article 14 of the Civil Service Law, the Taylor Law.

* The decision is posted on the Internet at:

http://www.scribd.com/doc/229011497/Teacher-Tenure-Laws-Are-Unconstitutional-Shock-the-Conscience-CA-Judge-Rules

** Costello v East Islip UFSD, Supreme Court [not selected for publications in the official reports] Affirmed 250 A.D.2d 846. See, also, Lambert v Board of Educ. of Middle Country Cent. School Dist., 174 Misc.2d 487,

*** In Yastion v Mills, 229 A.D.2d 775, the Appellate Division decided that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of service. Orange-Ulster BOCES had appointed Yastion to a federally funded position and his annual employment contracts specifically indicated that "tenure does not apply to this position."

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Giving of false statements in the course of an official investigation constitute grounds for dismissal from municipal employment

Giving of false statements in the course of an official investigation constitute grounds for dismissal from municipal employment

2014 NY Slip Op 03944, Appellate Division, First Department

A New York City police officer [Plaintiff] was terminated from his position based on a finding that he had made false statements regarding his whereabouts to an investigating officer during a department "GO-15"* interview concerning his alleged unauthorized absence from his home while on sick report. Plaintiff admitted that he knew he was required to remain at his residence while on sick report and that he gave a false account of the reason for his absence at the GO-15 interview.

Plaintiff challenged his termination alleging that the penalty of dismissal was excessive and an abuse of discretion. The Article 78 petition filed by his then attorney was dismissed because the attorney had filed to file a timely appeal. Plaintiff then initiated an action against the attorney to “recover damages for legal malpractice” but Supreme Court dismissed Officer’s petition alleging legal malpractice.

The Appellate Division affirmed the lower court’s ruling, explaining that in an action for legal exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty caused his or her plaintiff-client to sustain "actual and ascertainable damages." Further, said the court, to establish causation, the plaintiff-client must show that he or she “would have prevailed in the underlying action or would not have incurred any damages ‘but for’ the lawyer's negligence."

Supreme Court had granted the respondent attorney’s motion for summary judgment after finding this critical "but for" element was missing as Officer would not have prevailed in the underlying Article 78 proceeding challenging his dismissal from his position. The Appellate Division concurred with the Supreme Court’s ruling noting that “The giving of false statements in the course of an official investigation has been upheld as a ground for dismissal from municipal employment," citing Duncan v Kelly, 43 AD3d 297, affirmed 9 NY3d 1024.

As the United States Supreme Court held in Bryson v. United States, 396 U.S. 64 (1969), "Our legal system provides methods for challenging the Government's right to ask questions - lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood."

* A GO-15 interview is one conducted "in connection with allegations of serious misconduct or corruption." 
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The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

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Acting on information provided by the employer later proved to be incorrect does not create a right that was not otherwise available to the individual

Acting on information provided by the employer later proved to be incorrect does not create a right that was not otherwise available to the individual
2014 NY Slip Op 04051, Appellate Division, First Department

A former Court of Claims Judge and acting Supreme Court Justice, relying on the erroneous advice of employees of the Office of Court Administration (OCA) that he was vested in his New York State Health Insurance Program (NYSHIP) resigned from his position. He subsequently learned that he was not eligible to vest his NYSHIP benefits and thus was not eligible for NYSHIP benefits under the law.

Asserting that he would not have resigned from his position when he did if not for this advice, he filed a petition in the Court of Claims seeking a court order reinstating him as a NYSHIP participant or, in the alternative, an order awarding him money damages. The Court of Claims granted OCA’s motion to dismiss the action.

The Appellate Division, affirming the Court of Claim’s ruling, held that notwithstanding the incorrect information provided by the OCA employees, which was ministerial in nature, and which might subject the governmental body to liability, no claim of a “special duty was advanced by the former judge in contrast to his being treated same as any other employee seeking advice or information from OCA.

Accordingly, said the court, OCA may not be estopped from applying the law to the former judge notwithstanding the incorrect information given to him by an OCA employee and upon which he acted to his detriment.

Citing Matter of Grella, 38 AD3d 113, the Appellate Division explained that estoppel may not be invoked to prevent a governmental agency from performing its duty is not applicable here.*In Grella, a case involving eligibility for certain retirement benefits, the court held that even when erroneous advice was given by a Retirement System employee, the Comptroller has the exclusive authority to determine entitlement to retirement benefits and the duty to correct errors and cannot be estopped from exercising such duties in order "to create rights to retirement benefits to which there is no entitlement."

* The decision notes that the “the narrow exception to the rule” barring the application of estoppel to a governmental agency was not applicable in this case. [See, also, 2014 NY Slip Op 03907, Appellate Division, Third Department, summarized at http://publicpersonnellaw.blogspot.com/2014/06/the-consequences-of-withdrawing-from.html]
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Imposing the penalty of dismissal held reasonable under the circumstances

Imposing the penalty of dismissal held reasonable under the circumstances

2014 NY Slip Op 03064, Appellate Division, Fourth Department

A former New York State Trooper [Former], commenced a CPLR Article 78 proceeding seeking to annul the Superintendent's determination finding him guilty of misconduct or, in the alternative, to vacate the penalty of dismissal. Former contended that the determination is not supported by substantial evidence and that the penalty is shocking to one's sense of fairness.

The charges against Former alleged that he knew of certain illegal activities and did not take proper police action to stop them; that he knowingly frequented an establishment where violations of the law existed; that he provided false information during the internal investigation; and that, by his conduct, he brought discredit to the Division of State Police.

The Hearing Board found Former guilty of all of the charges filed against him but one. The Superintendent accepted the findings and recommendations of the Hearing Board and dismissed Former from the Division of State Police.

The standard of review for the Appellate Divisions and the Court of Appeals in such cases is whether there was substantial evidence to support the Hearing Officer's decision" Rejecting Former’s contention to the contrary, the Appellate Division concluded that, we conclude that the Superintendent’s determination was supported by substantial evidence.

Although Former denied having any knowledge of the illegal activities alleged, there was substantial evidence establishing the contrary, i.e., that he was aware of those activities. Further, said the court, Former gave numerous inconsistent statements regarding whether he knew certain facts and evaded answering basic questions. The Appellate Division concluded that the Hearing Board properly determined that such evidence is indicative of a consciousness of guilt.

The Appellate Division explained that although a different finding would not have been unreasonable, "where [, as here,] substantial evidence exists' to support a decision being reviewed by the courts, that determination must be sustained, irrespective of whether a similar quantum of evidence is available to support other varying conclusions' "

Turning to the penalty imposed, dismissal from the Division, the court said that it did not agree with Former that the penalty of dismissal is shocking to one's sense of fairness. "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law . . . and a penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law."

Further, said the court, "[i]n matters concerning police discipline, great leeway' must be accorded to the [Superintendent's] determinations concerning the appropriate punishment, for it is the [Superintendent], not the courts, who is accountable to the public for the integrity of the [Division of State Police]," citing Kelly, 96 NY2d 32 among other decisions.

Given the nature of the offenses, the "higher standard of fitness and character [that] pertains to police officers," Former's evasive conduct and his refusal to accept any responsibility for his conduct, the Appellate Division concluded that the penalty of dismissal does not shock one's sense of fairness.

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A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://booklocker.com/books/7401.html

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Disciplinary decision vacated as employer failed to cite any law or rule that classified the employee’s alleged actions as misconduct

Disciplinary decision vacated as employer failed to cite any law or rule that classified the employee’s alleged actions as misconduct
2014 NY Slip Op 03958, Appellate Division, First Department

In a §3020-a disciplinary action the arbitrator found a teacher guilty of misconduct and terminating his employment with the New York City Department of Education. Supreme Court confirmed the arbitration award and the teacher appealed.

The Appellate Division unanimously vacated the lower court’s ruling and vacated the arbitration award, explaining that the Department of Education “has not identified any rule or statute that classifies [the] statements and action [alleged] as teacher misconduct." Thus, the court found that, in consideration of the circumstances, the finding that the teacher's actions constituted teacher misconduct was not supported by adequate evidence, and is arbitrary and capricious.

The Appellate Division also noted that the teacher did have “a disciplinary history including findings of non-sexual touching of students, and that two prior disciplinary awards expressly warned him not to touch his students again,” However, said the court, it is undisputed that the teacher did not touch any of his students “in the case at bar” and thus, contrary to the arbitrator's finding, the evidence did not indicate that teacher had failed to heed prior warnings.

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The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 7, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending  June 7, 2014

Click on text highlighted in color  to access the full report

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued during the week ending June 7, 2014.:

Department of Corrections and Community Supervision, Corcraft's Textile Procurement Practices (2012-S-22) 

 
Corcraft is a major component within the Department of Corrections and Community Supervision. Corcraft's mission is to employ offenders in real work situations to produce quality goods and services at competitive prices. Current procurement practices allow one person, the purchasing supervisor, to control almost all of the process for the procurement of textiles. The inadequate separation of incompatible duties and lack of compensating controls increases the risk of favoritism in the award process. Auditors found Corcraft officials awarded contracts without testing all of the required specifications and instead used their own discretion in deciding whether and which specifications were tested. As a result, they did not adequately ensure open competition, and there was limited assurance that contracts totaling $32.3 million went to the lowest responsive and responsible vendors. 

Department of Health, Medicaid Program: Medicaid Payments Made Pursuant to Medicare Part C  (2012-S-133)

 
During the audit period, auditors found Medicaid could have saved up to $69 million if it limited payments of Medicare Part C cost-sharing liabilities such that the total Medicare and Medicaid payment for a service did not exceed Medicaid's normal service fee. Other states already use this approach and New York uses this approach to limit payments for certain other Medicare cost-sharing liabilities. In addition, auditors determined Medicaid made $1.6 million in overpayments for Medicare Part C cost-sharing because recipients were not enrolled in Part C. 

Department of Health, Medicaid Program: Medicaid Claims Processing Activity October 1, 2012 Through March 31, 2013 (2012-S-131)

Auditors identified about $13 million in inappropriate or questionable Medicaid payments, including:

$6,329,458 in questionable payments for claims that were not subjected to the appropriate edits and pricing logic due to eMedNY's incorrect designation of the claim type being processed; $2,965,300 in overpayments for claims billed with incorrect information pertaining to recipients' other health insurance coverage; $2,689,352 in inappropriate payments for lab services claims submitted well beyond the required time frame for submission; $488,837 in overpayments for claims for duplicate billings; $222,806 in overpayments for claims for a dialysis drug billed at 10 times the number of units actually provided; and claims with improper payments for physician-administered drugs, hospital services, medical equipment and dental services. 

By the end of the audit fieldwork, auditors recovered about $3.8 million of the overpayments identified. 

Department of Health, Selected Employee Travel Expenses (2012-S-94)

 
Travel expenses totaling $466,301 for 14 of the 17 DOH employees selected for review were appropriate and adhered to state travel rules and regulations. However, for three employees, auditors identified numerous problems with travel practices and related expenses attributed to inadequate oversight. Of the $121,727 in travel expenses examined for the three employees, auditors found problems with costs totaling $14,870. 

NYC Human Resources Administration (HRA) NYS Office of Temporary and Disability Assistance, Benefit Eligibility Assessment Process (2012-S-51)

 
Auditors found that HRA employees apply a comprehensive assessment process when determining a client's eligibility, and that process is in compliance with governing regulations and procedures. However, procedural revisions are necessary to reduce the number of hearings held, and to reduce the number of HRA determinations that are reversed at hearings. 

 
Office of Information Technology Services, Procurement and Contracting Practices (Follow-Up) (2013-F-24)

 
In an initial audit report issued in February 2012, auditors found a culture at the Office of Information Technology Services (ITS), emanating from the highest levels of the agency, that disregarded the New York State Finance Law, the state's procurement guidelines and the agency's own procurement policies. This did not result in the best value for the taxpayers, but instead led to a waste of substantial public resources. Moreover, in several notable instances, transgressions appeared to have been motivated by personal gain and may have violated the ethics standards contained in the New York State Public Officers Law. In a follow up, auditors found ITS officials have made some progress and continue to make progress in addressing the problems identified in the initial audit. Of the eight prior audit recommendations, one was implemented and seven were partially implemented. 

Office of Mental Health, Sky Light Center Inc.: Supported Housing Program (2012-S-37)

 
Auditors identified $125,302 in unsupported or inappropriate personal service expenses charged to the housing program. These charges included unsupported salary allocations and inappropriate overtime payments to management. Auditors also identified $295,321 in unsupported or inappropriate non-personal service expense items, including expenses associated with the unrelated program facilities, payments to a contractor to enhance his personal property and rental payments for unoccupied apartments. Sky Light officials cannot account for over $75,000 in contingency funds that were to be used specifically for client housing emergencies. Additionally, Sky Light officials did not make all required visits to client apartments. Auditors identified several potential safety issues, including the lack of smoke and carbon monoxide detectors. 

Port Authority of New York and New Jersey, Inspecting Highway Bridges and Repairing Defects (2012-S-34)

 
Auditors found the authority conducted the required biennial inspection of its highway bridges, but does not follow New York state requirements for classifying, reporting and repairing bridge defects. Instead it follows its own method, but does not always satisfy state requirements. As a result, it did not perform 47 interim inspections for priority conditions open more than one year. The authority also did not inspect a highway bridge with an immediate safety concern for 332 days while it awaited repairs. Ten of the 17 safety concerns sampled were not repaired for more than two years, including three which were open for five years. 

State University of New York SUNY at Albany, Selected Employee Travel Expenses (2012-S-74)

 
Expenses for nine of the 10 University employees selected for review were appropriate. For a track coach, however, officials did not enforce Office of State Comptroller and university guidelines limiting travel advance amounts and requiring unspent balances to be returned on a timely basis. The track coach routinely overestimated the amount of advance funds needed for athletic events. As a result, at one point he had over $87,000 in outstanding advances. Also, the coach consistently returned unused advance funds more than two months later than required by the university. University officials allowed this coach to pay back his travel advances in installments – similar to the payback of a loan. The track coach may have violated the Public Officers Law by employing his daughter as a volunteer coach and using state funds to pay for her travel with him and the team to local and national track events. 

Tuition Assistance Program, Medgar Evers College (2011-T-4)

 
Medgar Evers was overpaid $3,398,205 over three academic years because school officials incorrectly certified students as eligible for Tuition Assistance Program (TAP) awards. Incorrect certifications include 29 students who received awards but did not meet the requirements for full-time status, 14 students who did not maintain good academic standing, four students whose accounts were not credited with the TAP payment, three students who were not properly matriculated, two students who enrolled in programs not approved by the State Education Department, one student who did not meet the citizenship requirement, and one student for whom auditors found insufficient proof that she satisfied the New York state residency requirement. 

Tuition Assistance Program, Pratt Institute (2013-T-3)

 
Auditors determined that Pratt's certification procedures substantially complied with the governing Law and Regulations during the audit period for the transactions tested. There is low risk that a significant number of students certified for TAP were not eligible for awards. Nonetheless, tests did disclose 26 awards totaling $38,236 that school officials certified in error. After reviewing the errors, Pratt officials decertified one award for $2,450 and sent another student a $50 refund check.

Labor Department needs to improve wage theft investigations

The state Department of Labor (DOL) doesn’t complete many of its wage theft investigations in a timely manner, allowing thousands of cases to remain unresolved for a year or more, according to an audit released June 6, 2014 by State Comptroller Thomas P. DiNapoli.

Wage theft is the illegal holding of wages or denial of benefits to a worker by an employer. Examples include failing to pay overtime, not giving workers their last paycheck after they leave a job or not paying for all the hours the employee worked.

DiNapoli’s auditors found that, as of August 26, 2013, DOL had more than 17,000 open cases, an increase of about 150 percent from the 7,000 cases on hand at the start of 2008. The current caseload consists of about 9,300 active investigations and more than 7,800 cases pending payment. Of these, almost 13,000, or 75 percent, were at least one year old from initial claim date.

The increasing backlog stems largely from system and process deficiencies that hinder timely investigations, coupled with a limited number of staff to perform the growing amount of work. As of August 2013, auditors estimate that DOL’s 98 investigators were responsible for an average of 95 active investigations each.  According to the audit, resolving the inefficiencies in DOL’s procedures and its use of resources could significantly improve productivity.

DiNapoli’s auditors also found:
 

1. DOL’s Workforce Protection Management System does not provide management with accurate or useful case management reports;
 

2. Employers may be allowed a payment plan for restitution, but DOL has not established criteria to guide eligibility or payment terms; and
 

3. DOL does not maintain a centralized record of all payment plans in effect, and neither the Division of Labor Standards nor its districts have adequate controls in place to track and monitor employer compliance.

During the audit period the division instituted procedural changes to streamline its work and reduce the backlog.

DiNapoli recommended DOL:

1. Continue efforts to close the oldest wage investigation cases and strive to investigate and resolve newer cases faster;

2. Monitor the newly implemented strategies discussed in this report and continue to pursue additional initiatives to reduce the wage investigation case backlog and complete new wage investigation cases sooner;

3. Correct system flaws and develop capability to create meaningful reports to better manage the current cases and backlog;

4. Establish specific payment plan procedures;

5. Develop criteria for investigators to use to determine if a payment plan should be granted;

6. Ensure that each district office follows the payment plan procedures and keeps similar records; and

7. Develop a centralized payment collection system to effectively separate incompatible duties and to manage all payment plan information and transactions.

“It is imperative that DOL do a better job resolving wage theft cases as workers across New York are often waiting too long for the compensation they rightly deserve,” DiNapoli said. “While wage theft investigations are generally complex and time-intensive, any lags pose a risk that complications, such as lost records, could arise and interfere with an investigation and possible settlement.”

DOL officials responded to the audit’s recommendations and indicated the actions they are taking to address them. For a copy of the report, including DOL’s response, click on http://www.osc.state.ny.us/audits/allaudits/093014/13s38.pdf