Friday, June 27, 2014

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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