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April 30, 2018

Employee terminated following the loss of the license required to perform the duties of the position


Employee terminated following the loss of the license required to perform the duties of the position
Williams v City of Yonkers, 2018 NY Slip Op 02827, Appellate Division, Second Department

The appointing authority informed Glennie Williams that as he no longer possessed a valid New York State class B commercial driver license which was a minimum qualification for his position unless he obtained such a license by August 28, 2009, his employment would be terminated.

Although the Williams' complaint was dismissed on procedural ground,* set out below are a number of decisions in which the impact of the employee's loss of a license required to perform the duties of the position was considered.

Holding a valid license is sometimes an essential element to performing the duties of the position. What happens if the employee losses his or her license?

It is well settled that where a statute requires an individual to have a valid license or permit in order to practice his or her profession or duties, the loss, expiration, revocation or failure to obtain or maintain the required license or permit in a timely fashion means that the individual is not authorized to perform the duties of the position as a matter of law.

Accordingly, the courts have had little difficulty in upholding the immediate suspension of a teacher without pay where the educator is unable to present a valid license or certification when asked to do so. Although such a person may continue to be "qualified" to perform the duties of the position, he or she is typically barred from doing so unless and until a valid license or permit is obtained. 

In such situations the courts have upheld the employer summarily suspending the employee without pay as was the case in Meliti v Nyquist, 41 NY2d 183.

The legal theory in such cases is that it would be unlawful to continue a tenured but uncertified, and therefore unqualified, teacher on the payroll. There is nothing, however, that would prevent the appointing authority from placing the individual in another position for which he or she is qualified for which a license is not required.

Typically courts view the loss of the required credential, be it a license to practice law or medicine, teach, drive a motor vehicle or pilot an aircraft, as barring the individual from providing such service, or performing such tasks, by operation of law. Courts have viewed employees who lack licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position.

In contrast, see Matter of Martin ex rel Lekkas, 86 AD2d 712. In Lekkas the court held that an individual’s failure to possess a valid license otherwise required for the position is not fatal to the employee’s continuation in service if he or she is not performing duties set out in the job description for the position for which the license is otherwise required.

All that appears to be necessary in a “lost license or permit” situation is for the appointing authority to make a reasonable inquiry to determine if the employee possesses the license or permit required to lawfully perform the duties of the position prior to his or her being barred from performing the duties of the position.

The basic rules concerning the possession of a valid license or permit:

1. Where the license or permit is essential to the individual's lawfully performing his or her work, the courts have approved the termination or suspension without pay of the employee from his or her position if the required license or permit is revoked or suspended or has expired.

2. If the possession of the license or permit is not essential to the performance of the duties of the position, the courts have ruled that the failure to have a valid license or permit is not fatal to the employee's continuation in service. This situation is typical where a driver's license may be included as a minimum qualification for appointment to the position but the individual is not required to operate a motor vehicle in order to perform his or her duties.

Additionally, PERB has ruled that where the duties of a position require the incumbent to possess a valid license, the employer's issuing a directive that the appropriate employees obtain, or maintain, such a license is a non-mandatory subject of collective bargaining [see CSEA Local 1000 and State of
New York, 27 PERB 3018].

* The  Williams decision is posted on the Internet at: 


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