June 17, 2014

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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