Best Lawblog Contest for 2017 now being conducted by The Legal Institute

From now until
September 15th, 2017, Lawblog fans can nominate their favorite blogs and bloggers for inclusion in the voting round of 2017. As in previous years, the nomination process is competitive, meaning the more nominations a blog receives, the more likely it is to be included in the public voting stage of the contest.

To access the link to the nomination form, click on:

https://www.theexpertinstitute.com/blog-contest/?utm_source=email&utm_medium=email&utm_content=CTA&utm_campaign=blog-contest-8.14.2017-general

Monday, August 21, 2017

Determining if a grievance alleging a violation of a provision in a collective bargaining agreement may be submitted to arbitration


Determining if a grievance alleging a violation of a provision in a collective bargaining agreement may be submitted to arbitration
City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 2017 NY Slip Op 06073, Appellate Division, Second Department

Yonkers Fire Fighters Local 628, IAFF, AFL-CIO [Local 628] filed a grievance alleging that the City of Yonkers [Yonkers] engaged in a continuing practice of delaying and denying medical care and treatment claimed by its members pursuant to General Municipal Law §207-a after suffering an alleged line of duty injury. Yonkers denied the grievance and the Local demanded arbitration of its grievance.

Yonkers filed a petition pursuant to CPLR Article 75 seeking a court order permanently staying arbitration while the Local 628 cross-moved seeking an order compelling that the grievance be submitted to arbitration. Supreme Court denied Yonkers' petition and granted the Local 628's cross-motion. The Appellate Division affirmed the Supreme Court's actions.

The Appellate Division explained that public policy in New York favors arbitral resolution of public sector labor disputes if the demand for arbitration meets a two-prong test. The first test: the court must determine if there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance. If it finds no such barrier, the court then must determine whether the parties agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

Noting that Yonkers did not claim any statutory, constitutional, or public policy prohibition to arbitration of this grievance, the Appellate Division said that the second test may be satisfied if the court finds that "there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the [collective bargaining agreement (CBA)]."

Finding that the relevant arbitration provisions set out in the CBA provide for arbitration of any grievance "involving the interpretation or application of any provision of this Agreement," and there was a reasonable relationship between the subject matter of the dispute, which involves the processing of General Municipal Law §207-a benefits to firefighters injured in the line of duty, the Appellate Division concluded that the grievance was arbitrable.

Addressing Yonkers' claim that the Local's grievance was untimely, the Appellate Division pointed out that the "threshold determination of whether a condition precedent to arbitration exists and whether it has been complied with, is for the court to determine."

In contrast, said the court, "[q]uestions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators, particularly in the absence of a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration."

Here the CBA did not specify that "timely commencement of the grievance is a condition precedent to arbitration." Accordingly, the Appellate Division ruled that the question of whether the Local timely initiated its grievance ... must be resolved by the arbitrator, not the court.

* A third-party administrator, Pomco, Inc., processed GML §207-a claims filed by Yonkers firefighters on behalf of Yonkers.

The decision is posted on the Internet at:
Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html
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Saturday, August 19, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending August 19, 2017


New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending August 19, 2017
Source: Office of the State Comptroller

Click on text highlighted in color to access the full report

Municipal Audits released

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the 

Village of Painted Post – Board Oversight (Steuben County)
The board did not adopt policies and procedures for cash receipts and disbursements, processing of user charges, payroll and information technology. The board also did not make budget transfers on a timely basis to control spending during the year.
 

Town of Schaghticoke – Water Operations (Rensselaer County)
Duties related to billings, collections, deposits and recordkeeping were not adequately segregated. The board also did not approve water billings and customer account adjustments, and did not perform an annual audit of the clerk’s records and reports.
 

City of Yonkers – Information Technology (Westchester County)
The IT department’s acceptable computer use policy was not signed or acknowledged by all employees and city officials have also not classified personal, private and sensitive information based on its level of sensitivity and the potential impact should that data be disclosed, altered or destroyed without authorization. In addition, city officials have not ensured that employees received adequate cyber security training and have not adopted a breach notification policy or a disaster recovery plan.
 


Unregistered Auto Repair Shops 

The Department of Motor Vehicles has not done enough to prevent automotive repair shops and inspection stations from operating without valid registrations, putting consumers at an increased risk to be scammed by dishonest businesses, according to an audit by New York State Comptroller Thomas P. DiNapoli.


Friday, August 18, 2017

Applying the substantial evidence test rather than the arbitrary and capricious test in the course of litigation


Applying the substantial evidence test rather than the arbitrary and capricious test in the course of litigation
2017 NY Slip Op 06077, Appellate Division, Second Department

The Petitioner filed a grievance with the Unified Court System [UCS] alleging that Court Office Assistants had been given responsibilities constituting out-of-title work. After a grievance meeting, the Acting Deputy Director of Labor Relations of the UCS issued a determination denying the grievance.

Petitioner challenged the Acting Director's determination by filing a CPLR Article 78 action in Supreme Court. Supreme Court concluded that the challenged duties did not constitute out-of-title work and that the administrative determination was not arbitrary or capricious. The court denied the petition and dismissed the proceeding.

Contending that Supreme Court erred in failing to apply the "substantial evidence" standard of review in deciding the petition,* Petitioner appealed.

The Appellate Division, sustaining the lower court's ruling, explained that "a substantial evidence question is presented only where a quasi-judicial evidentiary hearing has been held." Notwithstanding the fact that Petitioner had the "right to be heard . . . and to present facts in support of [his] position" at the grievance meeting," this did not render the grievance meeting "a quasi-judicial proceeding involving the cross-examination of witnesses and the making of a record within the meaning of Civil Practice Law and Rules §7803(4)."

As the administrative determination in this case was made after a grievance meeting, in contrast to having been made after a quasi-judicial evidentiary hearing, the Appellate Division ruled that Supreme Court "properly concluded that the relevant standard of review was whether the Acting Director's "determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion."

Addressing Petitioner's alternative contention -- that the Deputy Director's determination was arbitrary and capricious -- the Appellate Division said that "[a]n action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" and "[i]n applying the arbitrary and capricious' standard, a court inquires whether the determination under review had a rational basis." Here, said the court, the Deputy Director's determination that the challenged duties did not constitute out-of-title work was not arbitrary and capricious as work is not considered out-of-title if it is related to, similar in nature to, or a reasonable outgrowth of, the employee's in-title work."

Finding that Petitioner failed to identify any duty that has been assigned to Court Office Assistants that is not related to the types of general tasks enumerated in the relevant title standard, the Appellate Division concluded that the Deputy Director's ruling that the challenged duties were reasonably related to the duties described in the Court Office Assistant title standard was not arbitrary or capricious.


* CPLR §7804 provides, in pertinent part, "(g) Hearing and determination; transfer to appellate division. Where the substantial evidence issue specified in question four of §7803 is not raised [i.e., whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence], the court in which the proceeding is commenced shall itself dispose of the issues in the proceeding. Where such an issue is raised, the court shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue." [Emphasis supplied.]
 
The decision is posted on the Internet at:

Employment Law News from WK WorkDay


Employment Law News from WK WorkDay 
Source: Wolters Kulwer

Selected reports posted by WK Workday distributed August 17, 2017

Click on text highlighted in color  to access the full report

No error in refusing to ‘look through’ arbitration petition to defeat subject matter jurisdiction 

Minnesota whistleblower need not suspect illegal conduct to bring retaliation claim  

American workplace ‘physically, emotionally taxing,’ Rand Corp survey find

Reconsidering, DC Circuit holds that denying lateral transfer can be Title VII adverse action
 

Thursday, August 17, 2017

Matter of the Application of the Board of Education of the City School District of the City of Buffalo for the removal of Carl Paladino as a member of the Board of Education of the City School District of the City of Buffalo


Matter of the Application of the Board of Education of the City School District of the City of Buffalo for the removal of Carl Paladino as a member of the Board of Education of the City School District of the City of Buffalo
Decisions of the Commissioner of Education, Decision No. 17,147

The Commissioner concluded that Carl Paladino should be removed as a member of the Board of Education as "[t]he record demonstrates that [Paladino] disclosed confidential information regarding collective negotiations under the Taylor Law which he gained in the course of his participation as a board member in executive session, and that his disclosures constituted a wilful violation of law warranting his removal from office pursuant to Education Law §§306 and 2559...."

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


Determining seniority and tenure area of teachers in the event of the abolishment of positions


Determining seniority and tenure area of teachers in the event of the abolishment of positions
Decisions of the Commissioner of Education, Decision No. 17,137

Petitioner [M] appealed the decision of the School Board [Board] terminating her employment as the result of "the abolishment of her position."

At the time of this appeal the district employed three teachers, M held a permanent certification as a teacher of Nursery, Kindergarten and Grades 1-6, as well as a Students with Disabilities (Grades 1-6) professional certificate. On September 1, 1998, M had been given a probationary appointment in the position of Teacher - Primary Grades and granted tenure in the Elementary Education K-6 tenure area effective September 1, 2001

The other staff members at this time consisted of two teachers, C and N, and two teaching assistants.  C was given a probationary appointment in the Elementary Education K-6 tenure area in September 2009 and was subsequently granted tenure effective September 1, 2012.  N, the then third teacher in the district, was given a probationary appointment on September 1, 2011 in the Elementary Education K-6 tenure area.

Effective July 1, 2004, M was designated as a Teacher on Special Assignment with a "Teacher Center." Although M served as the Director at the Teacher Center, she remained an employee of the district, was continued on its payroll and continued to accrue seniority in the Elementary Education K-6 tenure area.  The district was reimbursed for her "district-paid compensation" by the Teacher Center.

At its April 15, 2014 meeting, the Board adopted a resolution establishing a “Hybrid Tenure Area: Elementary Education K-6/Special Education” and the two teachers then in service, C and P, were granted tenure in the new “hybrid” tenure area and their seniority credit was not affected.  N, the third teacher on staff, had been appointed as a probationary teacher in the Elementary Education K-6 tenure area effective September 1, 2011 and her probationary appointment was “carried forward” to the “hybrid” tenure area and her service thus far with the district was credited in the new, hybrid tenure area and she was subsequently granted tenure effective September 1, 2014. M, however, was retained in the K-6 Elementary tenure area.

P resigned and by letter dated May 21, 2014, M advised the district of her intention to return to the district in the fall. M was then notified that the position she was seeking to fill upon her return required a special education certification, which certification M did not then possess.  However, M notified the district she would possess the necessary special education certificate by the beginning of the 2014 school year. On August 18, 2014, M was assigned to non-classroom curriculum development duties in the district.

At its April 16, 2015 meeting, the board voted to abolish one teaching position in the Elementary Education K-6 tenure area effective June 30, 2015 and M was determined to be the least senior teacher in that tenure area. As a result M was excessed, effective June 30, 2015

M, asserting that she was the most senior teacher in the district, appealed her being excessed to the Commissioner of Education, seeking reinstatement with full salary and benefits, retroactive to June 30, 2015.  M contended that the Board’s actions granting retroactive tenure and seniority credit to C and N in the new “hybrid” tenure area was illegal, arguing that the board’s creation of a “hybrid” Elementary Education K-6/Special Education tenure area, and the transfer of these two teachers to that tenure area while leaving her in the prior Elementary Education K-6 tenure area constitutes impermissible retroactive restructuring of her tenure area and circumvented her tenure and seniority rights. 

The Board, in rebuttal, [1] raised a procedural issue, contending that M's appeal must be dismissed "for failure to join necessary parties," and [2] contended that its creation of a “hybrid” Elementary Education K-6/Special Education tenure area was legally proper.
  
In support of its claim that necessary parties had not been served, the Board argued that there were two teaching assistants in the district that work under the supervision of  C and N and should M prevail and be reinstated, “the likely result” will be the excessing of  N, and one or both of the teaching assistants for budgetary reasons.

Noting that a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such and be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense, the Commissioner rejected the Board's argument that M's appeal must be dismissed for failure to join necessary parties, .

Here the Board eliminated a position in the Elementary Education K-6 tenure area as a result of which M was excessed and to which she seeks reinstatement.  Teaching assistants, explained the Commissioner, hold certificates that are separate and distinct from elementary education teachers and are authorized to act only under the general supervision of a licensed or certified teacher and do not serve in the same tenure area as a classroom teacher such as M.  Thus, such individuals will not, as matter of law, be affected should M prevail in this matter. The Commissioner pointed out that Education Law §3013(2) provides that when a position is abolished, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” 

Further, the Commissioner said that the Board's "speculation as to how the district would resolve a budgetary issue should M prevail in this appeal is insufficient to support a conclusion that the teaching assistants would be adversely affected, warranting their joinder as respondents."

Turning to the merits of M's appeal, the Commissioner acknowledged the Board's argument that the district was exempt from the tenure areas requirements set forth in Part of 30 of the Rules of the Board of Regents "because it employs fewer than eight teachers." However, said the Commissioner, the Board is still subject to Education Law §3012-a, which defines the elementary tenure area.
 
Significantly, the Commissioner observed that §3012-a provides that, with exceptions not relevant here, “elementary tenure area shall mean kindergarten through grade 6 for teachers employed in such grade levels [after May 13, 1975].  All teachers holding tenure [as of May 13, 1975] in the kindergarten tenure area or grade one through six tenure area shall be deemed to hold tenure in the elementary tenure area as defined by this section.” The Commissioner pointed out that, as a matter of law, "all teachers in kindergarten through grade six, apart from those in a special tenure area, shall be in a single elementary tenure area without regard to the organizational pattern of the district."

Another consideration: the Commissioner observed that a “hybrid” elementary education/special education tenure area is not permitted under Education Law §3012-a, nor is it permissible to simultaneously have an elementary tenure area and such a hybrid tenure area as the Board attempted to create in this case. 

In the words of the Commissioner, the Board "had no authority to create such hybrid tenure area" and its April 15, 2014 action establishing the “hybrid” Elementary Education K-6/Special Education tenure area, as well as the transfer of C and N to that “hybrid” tenure area, was not permissible "and void ab initio."  This meant that C and N remained in the Elementary Education K-6 tenure area for the purposes of determining seniority in the event of a layoff.

Noting that when abolishing a position in the Elementary Education K-6 tenure area the Board, was required to excess the teacher(s) “having the least seniority in the system within the tenure of the position abolished,” the Commissioner said that, based on her findings, C and N never served in the unauthorized “hybrid” Elementary Education K-6/Special Education tenure area. Rather they remained in the authorized Elementary Education K-6 tenure area and the Board must calculate the seniority of M, C and N as of April 16, 2015, in the Elementary Education K-6 tenure area. 

Further, if the Board finds that M was not the least senior teacher in that tenure area, it must reinstate her to her position with back pay and benefits effective June 30, 2015.

The decision is posted on the Internet at: 
http://www.counsel.nysed.gov/Decisions/volume57/d17137

_______________________________

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

Wednesday, August 16, 2017

An agreement to submit a dispute to arbitration will be enforced by the court


An agreement to submit a dispute to arbitration will be enforced by the court
Adams v Metropolitan Transp. Auth., 2017 NY Slip Op 05946, Appellate Division, Second Department

As a general rule, arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he or she has not agreed so to submit. Further, a party may not be compelled to arbitrate a dispute unless there is evidence affirmatively establishing that the parties clearly, explicitly, and unequivocally agreed to arbitrate.

In a proceeding pursuant to CPLR Article 75 to compel arbitration Supreme Court granted the petition directed the parties to proceed to arbitration. The Appellate Division affirmed the lower court's ruling.

As to the genesis of this Article 75 action, since 1973, Nassau County provided bus service for the County through an operating agreement with a subsidiary of the Metropolitan Transportation Authority [MTA], the MTA-Long Island Bus [MTA-LIB]. The operating agreement set out various protections that were set forth in various agreements, known §13(c) agreements, which included arbitration provisions.

In 2011, MTA discontinued its bus service in the County and the County contracted with Veolia Transportation Services, Inc. [Veolia] to provide bus services. Veolia agreed that the §13(c) agreements that had been entered into by the County would continue. These agreements provided for arbitration of claims by the employees of the bus service.

Certain employees of the MTA-LIB were terminated and subsequently hired by Veolia. These employees, contending that as a result of moving their employment to Veolia they encountered "negative employment consequences" that were compensable under the §13(c) agreements, demanded that their complaints be submitted to arbitration.

The Appellate Division said that Supreme Court had correctly determined that MTA, MTA-LIB, the County and Veolia "had all clearly and expressly agreed to arbitrate the claims alleged by the former MTA-LIB employees pursuant to the §13(c) agreements and that any conditions precedent to seeking arbitration had been satisfied."

Accordingly, the Appellate Division found that the lower court had properly granted the former MTA-LIB employee's petition to compel arbitration.

The decision is posted on the Internet at:

Tuesday, August 15, 2017

A notice of termination may constitute an adverse employment action within the meaning of Title VII and the Family Medical Leave Act


A notice of termination may constitute an adverse employment action within the meaning of Title VII and the Family Medical Leave Act
United States Court of Appeals, 2nd Circuit, Docket #16-3140

The Second Circuit US Court of Appeals ruled that "a notice of termination itself constitutes an adverse employment action, even when the employer later rescinds the termination."

Citing two decisions by the Supreme Court, Delaware State College v Ricks, 449 U.S. 25 and Chardon v Fernandez, 454 U.S. 6, the Second Circuit held that plaintiff's notice of termination in this case may, itself, constitute an adverse employment action notwithstanding its revocation before it became effective for the purpose of litigating an alleged unlawful discrimination or other claim.

Although in this action the court found that the rescission of a notice of termination given to an employee may not constitute an adverse employment action and other facts alleged in the complaint "were insufficient to establish constructive discharge nor a hostile work environment," the court found that the plaintiff did state a plausible claim of "discriminatory termination and interference with her FMLA rights."

The Circuit Court remanded the matter to the district court for the purpose of the lower court reconsidering " ... its decision to decline to exercise supplemental jurisdiction over the [plaintiff's] state and city law [unlawful discrimination] claims."

The decision is posted on the Internet at:

Saturday, August 12, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 12, 2017


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 12, 2017

Click on text highlighted in color  to access the full report

New York State Comptroller Thomas P. DiNapoli announced the following items have been issued:

Comptroller DiNapoli and A.G. Schneiderman Announce 2 to 6 Year Prison Sentence for Former Councilman Ruben Wills in Public Corruption Scheme

State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the sentencing of former New York City Councilman Ruben Wills to 2 to 6 years in prison; Wills was also ordered to pay nearly $33,000 in restitution and a $5,000 fine.


Former Town of Minerva Clerk Pleads Guilty

Jordan Green, the former clerk to the supervisor for the town of Minerva, pleaded guilty to fourth degree grand larceny, official misconduct and tampering with public records, after an investigation and audit found she stole thousands of dollars from the town.


Friday, August 11, 2017

Adirondack Research posts its 2017 Research Newsletter on the Internet


Adirondack Research posts its 2017 Research Newsletter on the Internet

Adirondack Research Director Ezra Schwartzberg has announced that the organization has posted its Annual Adirondack Research Newsletter, In the Field, on the Internet in the unique form of a StoryMap – a medium that allows the organization to bring its 2017 newsletter to life using maps, photos, graphics, video and text.

The Newsletter is best viewed on a computer, but may be read on a smartphone turned sideways. Click here to view the newsletter: http://arcg.is/1XiKb0

Information about Adirondack Research is posted on the Internet at http://adkres.org/.

Hearing Officer is entitled to weigh the evidence in making his or her decision when the parties' present conflicting medical evidence


Hearing Officer is entitled to weigh the evidence in making his or her decision when the parties' present conflicting medical evidence 
2017 NY Slip Op 02270, Appellate Division, Fourth Department

A  police officer [Petitioner], filed a CPLR Article 78 petition seeking to annul the determination of the Hearing Officer that he was medically qualified to perform his light duty assignment and thus not entitled be continued on  General Municipal Law §207-c leave.

Petitioner was receiving benefits pursuant to §207-c as a result of prior on-duty injuries. Returning to work in a light-duty capacity, Petitioner twisted his ankle while at work and allegedly exacerbated his prior injuries.

Following a hearing, the Hearing Officer determined that Petitioner was able to perform his light-duty assignment notwithstanding the injury to his ankle and thus Petitioner was not totally disabled. Accordingly, the employer discontinued Petitioner's §207-c leave status.

The Appellate Division said it agreed with Petitioner's employer that the Hearing Officer's determination that Petitioner could continue to perform the light duties to which he was assigned was supported by substantial evidence.

The court said that although Petitioner presented evidence suggesting that he was not able to work at all, "the Hearing Officer instead credited other evidence that Petitioner could perform a light-duty assignment" and unanimously dismissed the petition.

In the words of the Appellate Division, "[t]he Hearing Officer was entitled to weigh the parties' conflicting medical evidence" and a court "may not weigh the evidence or reject [the Hearing Officer's] choice where the evidence is conflicting and room for a choice exists."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_02270.htm

__________________________

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html
__________________________  
 


Thursday, August 10, 2017

Claimant ineligible to receive unemployment insurance benefits after failing to comply with certification and registration requirements


Claimant ineligible to receive unemployment insurance benefits after failing to comply with certification and registration requirements
2017 NY Slip Op 06040, Appellate Division, Third Department

Claimant, a teaching assistant, filed a claim for unemployment insurance benefits after she was "laid off from her job" in April, 2015.

The Department of Labor initially found Claimant eligible to receive benefits, but this determination was overruled by an Administrative Law Judge [ALJ] in October 2015 following a hearing. Claimant appealed and, in March 2016, Claimant was notified that the Unemployment Insurance Appeal Board had reversed the ALJ's decision and found that Claimant was eligible to receive such benefits.

While her appeal was pending, however, Claimant "failed to certify" for benefits between December 21, 2015 and March 6, 2016 in accordance with Labor Law §596 and the Department found her ineligible for benefits during this time period.

This Department's determination was sustained by an ALJ following a hearing. The Board affirmed the ALJ's ruling, explaining that the Claimant was ineligible to receive unemployment insurance benefits because she did not comply with Labor Law §596 certification and registration requirements.

Claimant had contended that she "failed to certify" during the time period in question because she did not feel comfortable doing so "given the ALJ's decision finding her ineligible for benefits." Claimant, however,  admitted that both the Unemployment Insurance Handbook and the ALJ's decision advised her that she should continue to certify for benefits while her case was on appeal and that "she made a mistake by not doing so."

The Appellate Division denied Claimant's challenge to the Board's ruling, explaining that "[i]t is well settled that registering and certifying for benefits in accordance with the Labor Law and applicable regulations is a necessary prerequisite to eligibility for benefits." Further, said the court, "[w]hether good cause exists to excuse a claimant's noncompliance with these requirements is a factual issue for the Board to resolve."

The Appellate Division held that, considering the relevant facts in this case, substantial evidence supported the Board's finding that good cause did not exist to excuse Claimant's "failure to certify" and its conclusion that she was ineligible to receive benefits. Thus, said the court, it "found no reason to disturb the Board's decision."

The decision is posted on the Internet at:

From the LawBlogs


From the LawBlogs
Source: Findlaw ADA, August 9, 2017

Esparza v. KS Industries, L.P.  - (California Court of Appeal) - Affirming an order denying the motion to compel arbitration insofar as it denies arbitration of the Private Attorneys General Act representative claims seeking civil penalties that are paid to the Labor and Workforce Development Agency and directing additional proceedings to determine the plaintiff's intent regarding their pursuit of other claims in the case of a former employee alleging employment violations.


Baker v. Italian Maple Holdings, LLC - (California Court of Appeal) - Reversing the trial court's order denying defendant's motion to compel arbitration in the case of a woman entered into a nursing facility who executed an arbitration agreement that included a 30-day cooling off period for rescission during which time she died because the fact of her death did not render the agreements unenforceable.



Kaiser Foundation Health Plan, Inc. v. The Superior Court of Los Angeles County - (California Court of Appeal) - Issuing a preemptory writ of mandate directing the trial court to vacate a judgment confirming an arbitration panel's award and entering a new order dismissing a petition to vacate the award because the award was not an award for which the court held jurisdiction to confirm.


Wednesday, August 09, 2017

The party seeking workers' compensation benefits bears the burden showing a causal connection between his or her employment and the claimed disability


The party seeking workers' compensation benefits bears the burden showing a causal connection between his or her employment and the claimed disability
2017 NY Slip Op 06013, Appellate Division, Third Department

A firefighter [Claimant], diagnosed with prostate cancer at the age of 51, filed a claim for workers' compensation benefits alleging that he was exposed to toxic fumes and asbestos as a firefighter and that he contracted prostate cancer as a result.

The claim was controverted* and ultimately the Workers' Compensation Board determined that the medical opinions in the record supporting a finding of causal relationship were unconvincing and speculative and, therefore, insufficient to support a finding of causal relationship between Claimant's prostate cancer and his employment as a paid firefighter.

Claimant appealed the Board's determination. The Appellate Division sustained the Board's determination, explaining that "... the party seeking benefits ... bore the burden of establishing — by competent medical evidence — a causal connection between his [or her] employment and the claimed disability."** Further, said the court, "[w]here medical proof is relied upon to demonstrate the existence of a causal relationship, it must signify a probability of the underlying cause that is supported by a rational basis and not be based upon a general expression of possibility."

According to the decision, Claimant responded to about 577 fire calls, which included roughly 100 actual fires, over his 24-year career as a firefighter, and he filled out an exposure report on at least four occasions when he felt that he had been exposed to something out of the ordinary. Claimant, however, indicated that he is not specifically aware of the various chemicals or toxins to which he might have been exposed.

The record also indicated that Claimant had periodically working for a friend in the plumbing and heating business to clean furnaces and other related tasks and that "prior to becoming a firefighter Claimant was employed as a deliverer of kerosene for at least eight years."

One expert testified that "epidemiologic studies have demonstrated an increased risk of prostate cancer among firefighters and that [Claimant], over his 24-year career, would have had ample time for exposure to carcinogenic materials."

A second expert testified that "the epidemiological studies linking firefighting and certain types of cancer fail to adequately examine environmental and demographic factors that would affect the risk of cancer" and that "it was not possible to definitively ascertain whether Claimant's prostate cancer — a "very common disease" among men — was caused by his employment as a firefighter given the lack of information regarding what Claimant was specifically exposed to while fighting fires."

A third expert, an oncologist appointed as the impartial specialist by the full Workers' Compensation Board, reported that, based upon his review of the relevant records, there was no evidence of any elevated risk factors typically associated with prostate cancer and that the incidence of new cases of prostate cancer in Claimant's "age group is well under 0.5%. Although this expert concluded that it was "reasonable to assume that [Claimant's] employment as a firefighter for 24 years may have [had] a causal relationship to the development of prostate cancer," he also testified that he "was unaware of Claimant's other previous employment consisting of cleaning furnaces and delivering kerosene or of the minimal number of exposure reports submitted by Claimant during his 24-year career as a firefighter and that, upon being apprised of this information, he could not assign a causal relationship."

The Appellate Division found that, in consideration of the conflicting evidence, "including the prevalence of prostate cancer and the other possible explanations for Claimant contracting the condition," the Workers' Compensation Board "acted within its discretion" in characterizing as speculative, and ultimately rejecting, the reports of two of the experts who testified to the existence of a causal relationship.

In the words of the majority of the court, Judge Egan dissenting, "Absent sufficient medical evidence to establish a causal relationship between [Claimant's] employment and his condition, we are unable on this record to conclude that the full Board's determination lacked a rational basis and was not supported by substantial evidence."

* An insurance carrier can contest, i.e., controvert, a Workers' Compensation claim for a variety of reasons, including, but not limited to, alleging that the injury was not related to work, was self-inflicted or the employee is not injured to the extent that he or she is claiming. An employer can also request that the insurance carrier contest the claim.

** The court also noted General Municipal Law §207-kk creates a rebuttable presumption that a firefighter who develops certain enumerated types of cancers incurred them in the course of performing his or her duties, "thereby eliminating the burden of proving causation" on the firefighter and places the burden of rebutting the presumption on the party controverting the claim. However, the explained the court, because §207-kk applies only in the event of the total or partial disability or death of a paid member of a fire department employed by cities have a population of one million or more, "the presumption is inapplicable here."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_06013.htm

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Tuesday, August 08, 2017

Two New York federal judges refuse to dismiss website accessibility cases


Two New York federal judges refuse to dismiss website accessibility cases
By Kristina M. Launey, Esq. and Minh N. Vu, Esq.

Two New York federal judges recently said that the ADA covers websites (even those not connected to a physical place) and one held that working on improving the accessibility of one’s website does not make the ADA claim moot.

The article by Ms. Launey and Ms. Vu of Seyfarth Shaw is posted on the Internet at:


Second Circuit Court of Appeals to again consider if discrimination based on sexual orientation is prohibited by Title VII


Second Circuit Court of Appeals to again consider if discrimination based on sexual orientation is prohibited by Title VII
Zarda v Altitude Express dba Skydive Long Island, USCA, Docket No. 15-3775

In Simonton v Runyon, 232 F.3d 33,* the Second Circuit said that "[w]hen interpreting a statute, the role of a court is limited to discerning and adhering to legislative meaning." The court then ruled that "[t]he law is well-settled in this circuit and in all others to have reached the question that Simonton has no cause of action under Title VII [the Civil Rights Act of 1964] because Title VII does not prohibit harassment or discrimination because of sexual orientation."

The Second Circuit Court of Appeals has voted to conduct an en banc** rehearing of a three-judge panel’s decision in Zarda v Altitude Express*** declining Zarda's request that it overturn Simonton, a 2000 decision by the Second Circuit.

Following disposition of Zarda's appeal by the three judge panel, a judge of the Court requested a poll be taken on whether to rehear the case en banc. A poll was conducted and a majority of the active judges of the court voted in favor of rehearing Zarda's appeal en banc and it was so ordered.

However, rehearing Zarda's appeal en banc may present additional arguments for the Appellate Division to consider.

It has been reported that the U.S. Department of Justice will file an amicus brief contending that Title VII does not include protection against discrimination based on sexual orientation while it has been also reported that the Equal Employment Opportunity Commission will file an amicus brief arguing that Title VII does prohibit discrimination based on the sexual orientation of the individual.  

* The decision in Simonton v Runyon  is posted on the Internet at: http://caselaw.findlaw.com/us-2nd-circuit/1203810.html

** A case heard by all the judges of a court rather than by a panel of judges selected from the entire court is said to heard en banc

*** This decision of the three-judge panel is posted on the Internet at:


Monday, August 07, 2017

School districts and other public employers in New York State may be considering providing paid family leave pursuant to the State's Paid Family Leave Act


School districts and other public employers in New York State may be considering providing paid family leave pursuant to the State's Paid Family Leave Act
Source: Shannon K. Buffum, Esq. writing for Harris Beach, PLLC's New York Municipalities Blog

Most private employers in New York State will be required to provide benefits under the New York Paid Family Leave Act [PFLA] effective January 1, 2018. In contrast, a public employer, including a school district, is not mandated to provide PFLA benefits but may to do so if it wishes. 

Ms. Buffum notes that "In the event a public employer currently provides disability benefits, but decides to not offer paid family leave benefits,  the public employer must notify its employees and the Workers’ Compensation Board of this decision no later than December 1, 2017."

However, in her PFLA article, posted on the Internet at: https://www.harrisbeach.com/new-york-municipalities-blog/caution-warranted-school-districts-considering-paid-family-leave/, Ms. Buffum also notes that some school districts in the state may be considering providing benefits for their officers and employees under the PFLA.

Workers' Compensation Board regulations implementing the Act, 12 NYCRR 355, et. seq.*, are posted on the Internet at http://www.wcb.ny.gov/PFL/pfl-regs.jsp.

It should be remembered that a public employer's unilaterally providing or withdrawing a benefit that constitutes a negotiable term or condition of employment may have committed an improper practice within the meaning of the Taylor Law [Civil Service Law Article 14].

* The Statutory Authority for promulgating 12 NYCRR 355, et. seq., is cited as Workers' Compensation Law §§117, 205, 221 and 206.

Friday, August 04, 2017

Termination of "over-65" retired former county employees reemployed on a part-time basis did not violate the Age Discrimination in Employment Act


Termination of "over-65" retired former county employees reemployed on a part-time basis did not violate the Age Discrimination in Employment Act
Carson v Lake County, Indiana, USCA, 7th Circuit, No. 16-3665

Source: Article by Kathleen Kapusta, J.D. posted in Employment Law News from WK WorkDay

Age was a necessary but insufficient factor in a county’s decision to terminate part-time rehired retirees who were 65 years old or older, the Seventh Circuit stated, finding no evidence the county employer engaged in unlawful discrimination. Affirming summary judgment against their ADEA claims, the appeals court explained that a combination of current employment and participation in a supplemental insurance program was the decisive factor that distinguished the population of terminated employees from the larger workforce. Summary judgment was also affirmed against their equal protection claim (Carson v. Lake County, Indiana, July 26, 2017, Hamilton, D.).

The plaintiffs, retirees who had been rehired part time, received a Medicare supplemental health insurance policy through Aetna that was paid for by the county. In 2013, Aetna informed the county that current employees, including rehired retirees, could not participate in the supplemental insurance plan without the county risking either forfeiting its supplemental insurance coverage altogether or incurring substantial costs to bring the plan into compliance with federal rules and regulations governing group health insurance.

The criteria. After consulting with an employee benefits attorney who confirmed Aetna’s position and advised the county “not to rehire any retirees,” or, alternatively, to rehire them full-time and offer them regular benefits, the county, in 2013, terminated 28 part-time rehired retirees. In its letter to the retirees, the county explained that they were selected for termination because they met each of four criteria: (1) they had retired from county service and were later rehired part-time; (2) they were age 65 or older; (3) they were receiving Medicare as their primary insurance; and (4) they were enrolled in the Aetna supplement. A much larger group of employees age 65 or older who were not enrolled in the supplement continued their employment with the county.

Plaintiffs, a subset of the 28 part-time employees who were terminated, sued the county for age discrimination in violation of the ADEA and the Fourteenth Amendment Equal Protection Clause. The parties filed cross-motions for summary judgment and the district court granted the county’s motion.

Not facially discriminatory. Arguing on appeal that the county’s decision was discriminatory on its face, the plaintiffs asserted that since all part-time employees who were terminated were age 65 or older, and since age was one of the criteria listed in the termination letter, “age was a but-for cause, as their age was a necessary condition for the defendant’s decision to terminate them.” The problem with this argument, said the court, was that age was not the impetus for the decision.

Noting that the plaintiffs shared four characteristics—they were (1) age 65 or older, (2) enrolled in Medicare for their primary health insurance coverage, but also were (3) rehired retirees, and (4) most important, enrolled in the Aetna supplemental policy—the court explained that the county did not terminate them because of their ages. Rather, it terminated them because they were enrolled in a retiree-only insurance plan in which current employees could not participate.

Not a proxy. The plaintiffs also argued that Medicare eligibility, and presumably enrollment in a Medicare supplement, may function as a proxy for age, such that an employer’s decision to terminate an employee based on such insurance coverage is a form of implicit age discrimination. The court, however, found no evidence that the county engaged in any prohibited stereotyping. The county did not “suppose a correlation” between the plaintiffs’ Medicare status and age and “act accordingly,” the court observed, pointing out that instead it fired only those employees who were enrolled in the Aetna supplement, leaving unaffected a large number of employees age 65 or older who had not enrolled in the supplement. The undisputed facts, said the court, showed that economic and regulatory pressures—not generalizations about the capabilities of elderly employees—drove the county’s decision.

Government policy. Moreover, the court noted, even a government policy that affects different age groups differently may not necessarily discriminate because of age. Explaining that the question is fact sensitive, the court found that here there was “no evidence of stereotypical assumptions, the likes of which Congress sought to suppress through the ADEA.” Rather, the county asserted a clear non-age-related rationale for its policy: an effort to reserve affordable health insurance for retirees. And while the county could have explained its predicament to the small group of affected part-timers and then offered each a choice between continued insurance or continued employment, that did not change the “bottom-line result in this ADEA case,” said the court, noting that the county “could not fire its employees because of their age, but we see no evidence of such disparate treatment in the record.”

Burden-shifting framework. The court also rejected the plaintiffs’ contention that they could prove their disparate treatment claim through the McDonnell Douglas burden-shifting frame-work, finding that they could not even establish a prima facie case as they could not show they were treated less favorably than similarly situated employees outside their protected class. Noting that they were among the small group of rehired retirees who were employed part-time and insured under Medicare and the Aetna supplement, the court pointed out that all such employees were fired, all (regardless of age) who remain employed by the county are not enrolled in the Aetna supplement, and all retirees who benefit from the supplement are no longer employed by the county.

Disparate impact. As to their disparate impact claim, in which they alleged they were the victims of an impermissibly discriminatory policy, the court pointed out that the undisputed facts showed the county took an adverse action against a subset of older workers not because of their age but because it wished to preserve its supplemental insurance plan and to comply with federal law. Those reasonable factors other than age amply supported the county’s decision.

Equal protection. Finally, the court found that the plaintiffs’ equal protection argument failed for essentially the same reason that their McDonnell Douglas burden-shifting argument failed: They did not identify a suitable comparator group. Observing further that the Equal Protection Clause subjects age-based distinctions to rational-basis review, the court pointed out that the county chose to terminate a group of at-will part-time employees whose continued employment would have imperiled its fragile financial situation or jeopardized an insurance plan that benefited plaintiffs and many other retirees. Noting that the county’s choice preserved plaintiffs’ eligibility for the supplemental insurance, the court found that the choice was rational.



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/

A Reasonable Penalty Under The Circumstances 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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