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Nominations sought for the Empire Star Public Service Award

This award recognizes exemplary employees of New York State serving in the Executive Branch.

Nominations must be submitted no later than December 15, 2017 and may be completed online.

For more information about the Empire Star Public Service Award, visit www.ny.gov/EmpireStarPublicService.

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Tuesday, January 19, 2016

Employee on Workers’ Compensation Leave continues to be subject to his or her employer’s rules and regulations concerning policies applicable to all its employees



Employee on Workers’ Compensation Leave continues to be subject to his or her employer’s rules and regulations concerning policies applicable to all its employees
Matter of Barron (State of N.Y. Off. of Mental Health), 2016 NY Slip Op 00234, Appellate Division, Third Department

A licensed master social worker, [Employee] at a state psychiatric center was served with a notice of discipline charging her with misconduct and proposing a penalty of termination based upon her unauthorized contact with a prison inmate confined at a state correctional facility while she was out on workers' compensation leave. The State Office of Mental Health alleged that Employee visited and exchanged correspondence with the inmate on numerous occasions in violation of the Department’s anti-fraternization policy.

The Department suspended the employee without pay pending the disposition of the notice of discipline on the basis that her continued presence at her work location represented "a potential danger to persons or property or would severely interfere with operations." Prior to the disciplinary arbitration hearing the Department and Employee entered into a stipulation that set out certain actions by Employee set out in Charge [1] and that the Department would withdraw portions of one of the charges served on her set out in Charge [2].

Following the hearing, the arbitrator found Employee guilty of Charges 1 and 2 and concluding that termination of employment was the appropriate penalty. Employee filed an Article 75 petition seeking a court order vacating the arbitration award and reinstatement to her position. Supreme Court denied her petition and Employee appealed the Supreme Court decision.

The Appellate Division dismissed Employee’s appeal, explaining:

1. Where, as here, "the parties agree to submit their dispute to an arbitrator, courts generally play a limited role," citing New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321;

2. Vacating an arbitration award is only appropriate where it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power and, further, “Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact;"

3. Although the parties' prehearing stipulation limited the scope of the conduct charged with respect to certain events, it did not preclude the use of evidence related to the withdrawn portion of the charges for other purposes, such as impeachment;

4. Even if admission of a letter alleged not admissible as evidence at the hearing amounted to an erroneous evidentiary ruling, it would not justify vacating the award; and

5. Notwithstanding Employee’s “misguided belief that she was not subject to the Department’s anti-fraternization policy during the time that she was out on workers' compensation leave” pursuant to Civil Service Law §71, during which time she admittedly had engaged in extensive contacts with the inmate, she remained an employee of the Department while absent on workers’ compensation leave and thus subject to the policies and standards applicable to all employees.

Point 5. above suggests that an employee is subject to his or her employer’s rules, regulations and policies while absent on any authorized leave and, perhaps, when such absence is “unauthorized” as well.

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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