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Thursday, May 31, 2018

Determining if a dispute between a public employer and an employee organization is arbitrable


Determining if a dispute between a public employer and an employee organization  is arbitrable
Matter of City of Long Beach v Long Beach Professional Fire Fighters Assn., Local 287, 2018 NY Slip Op 03356, Appellate Division, Second Department

The City of Long Beach [Long Beach] filed a petition pursuant to CPLR Article 75 seeking a permanent stay of a demand for arbitration submitted by the Long Beach Professional Fire Fighters Assn., Local 287 [Local 287].

Local 287 sought arbitration alleging that Long Beach had violated provisions set out in a collective bargaining agreement* negotiated by the parties addressing [1] the layoff of certain Long Beach firefighters and [2] the terms and conditions of employment with respect to certain paramedics when Long Beach "unilaterally set the terms of employment" for certain paramedics when they were hired.

Initially the Appellate Division observed that a public employer has wide latitude to negotiate the terms of the agreements, and can agree to submit disputes to arbitration in "the absence of plain and clear prohibitions in statute or controlling decisional law, or restrictive public policy" and, Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 noted that although the Taylor Law reflects New York's " strong'" policy favoring arbitration, this principle is not without limits.

New York courts use a two-part test to determine if a dispute is arbitrable, first asking if "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." In the absence of any such prohibition, the court then inquires as to whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

A court must stay arbitration where it can conclude, upon the examination of the parties' contract and any implicated statute on their face, "that the granting of any relief would violate public policy."

Turning to Local 287's claim that Long Beach's decision regarding layoffs of the firefighters was subject to arbitration the Appellate Division said that Civil Service Law §80(1), Suspension or demotion upon the abolition or reduction of positions, provides that a public employer has the nondelegable discretion to determine—for reasons of economy, among others — what its staffing and budgetary needs are in order to effectively deliver uninterrupted services to the public. Accordingly, and in the absence of bad faith, fraud, or collusion, that discretion "is an undisputed management prerogative" for the public's benefit, and cannot be altered or modified by agreement or otherwise.

Thus, said the Appellate Division, arbitration of the claim regarding the layoffs of the firefighters would violate public policy.

Turning to Local 287's claims relating to the terms and conditions of employment of the paramedics, the court opined that "no public policy precludes arbitration of those claims." Further, the court noted that the arbitration provision in the CBA "permits arbitration of such claims."

* Civil Service Law Article 14, typically referred to as the "Taylor Law."

The decision is posted on the Internet at:

Report Reviews Impact of Taylor Law


Duly noted:

The Empire Center has issued a 50th anniversary update of its seminal 2007 report on New York’s landmark Taylor Law, which governs labor relations in state and local government, 50 Years Later, Report Reviews Impact of Taylor Law. 

The report is posted on the Internet at:


Unsatisfactory rating voided because employee's "performance review" failed to comply with the employer's own procedures and thus undermined the integrity of the process

Unsatisfactory rating voided because employee's "performance review" failed to comply with the employer's own procedures and thus undermined the integrity of the process
Joyce v City of New York, 2018 NY Slip Op 03433, Appellate Division, First Department

The Appellate Division annulled the determination of respondent New York City Department of Education [DOE] sustaining the "unsatisfactory" rating for the 2010-2011 academic year give to John Joyce, a tenured teacher.

The court said that the record demonstrates "deficiencies in the performance review process" that resulted in Mr. Joyce being given an unsatisfactory rating for the 2010-2011 academic year.

Citing Matter of Gumbs v Board of Educ. of the City Sch. Dist. of the City of N.Y., 125 AD3d 484, and Matter of Richards v Board of Educ. of the City Sch. Dist. of the City of N.Y., 117 AD3d 605, the Appellate Division noted that these deficiencies "were not merely technical, but undermined the integrity and fairness of the process."

Mr. Joyce had received a satisfactory rating for the previous academic year and, in contravention of its own procedures, DOE failed to place him on notice that he was in danger of receiving an unsatisfactory rating for the 2010-2011 academic year until after April 28, 2011.

Although DOE's procedures required that tenured teachers in danger of receiving an unsatisfactory rating have "formal observations including a pre-observation and post-observation conference by the principal ... as part of a prescriptive plan to improve their teaching," Mr. Joyce received only one formal observation which took place one week before the end of the academic year and was not part of a prescriptive plan to improve his performance as a teacher.

The decision is posted on the Internet at:

Tuesday, May 29, 2018

Requiring a firefighter injured in the line of duty to accept a "light duty" assignment and where appropriate to undergo surgery


Requiring a firefighter injured in the line of duty to accept a "light duty" assignment and where appropriate to undergo surgery
Sestito v City of White Plains, 2018 NY Slip Op 03528, Appellate Division, Second Department

The Commissioner of Public Safety of the City of White Plains adopted the findings and recommendations of a hearing officer, made after a hearing, and terminated the Petitioner's benefits under General Municipal Law §207-a. The Appellate Division confirmed the Commissioner's determination and dismissed the Article 78 action "on the merits, with costs."

Petitioner in the action, a firefighter, alleged that he had been injured while performing his duties and applied for benefits pursuant to General Municipal Law §207-a. The Commissioner's medical examiner found that Petitioner was capable of returning to light duty and that there would be a "medium to moderate" chance that he would be able to resume full duty if he underwent spinal fusion surgery.

The City's Fire Chief sent Petitioner a letter ordering him to return to work to assume a light duty position, or risk losing his benefits. A second letter sent by the Fire Chief awarded the Petitioner General Municipal Law §207-a benefits for a designated period and directed Petitioner to schedule the "fusion surgery."

Petitioner did not return to work as directed and did not undergo surgery, choosing instead to proceed with a challenge of the return to work order.
A hearing was conducted and the hearing officer concluded that the Fire Chief's orders were "reasonable and rational," and that Petitioner's failure to comply with those orders was without justification. The Commissioner adopted the recommendations of the hearing officer.

In his appeal Petitioner argues that the Commissioner's determination is not supported by substantial evidence. The Appellate Division disagreed, explaining that "Substantial evidence means more than a mere scintilla of evidence and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides."

Finding that there was substantial evidence to support the Commissioner's determination that Petitioner was fit to return to light duty and that surgery was a reasonable and appropriate treatment the court ruled that as Petitioner failed to return to work for his light duty assignment, and did not undergo surgery, his GML §207-a benefits were properly terminated.

In Schenectady Police Benevolent Association v New York State Public Employment Relations Board, 85 N.Y.2d 480, the Court of Appeals ruled that General Municipal Law §207-c, which provided benefits to law enforcement personnel authorizes the appointing authority to (a) require such personnel injured in the line of duty to perform light duty when found medically qualified to do so and (b) under the appropriate circumstances, undergo surgery, where reasonable.

The key to requiring an individual to undergo surgery, said the court, is that §§207-a and 207-c both provide that its respective benefits may be withheld if the officer refuses to undergo surgery. The decision notes that the employer's physician "may attend any such injured or sick policeman, from time to time, for the purpose of providing medical, surgical or other treatment...."

The Court of Appeals observed that the §207-c further provides that anyone who refuses to accept "medical treatment or hospital care" waives the right to benefits under the section. A similar provision in §207-a applies where the injured employee is a firefighter.

The Sestito decision is posted on the Internet at:

The Schenectady decision is posted on the Internet at:

Saturday, May 26, 2018

Determining if a dispute between a public employer and an employee organization is arbitrable

Determining if a dispute between a public employer and an employee organization  is arbitrable
Matter of City of Long Beach v Long Beach Professional Fire Fighters Assn., Local 287, 2018 NY Slip Op 03356, Appellate Division, Second Department

The City of Long Beach [Long Beach] filed a petition pursuant to CPLR Article 75 seeking a permanent stay of a demand for arbitration submitted by the Long Beach Professional Fire Fighters Assn., Local 287 [Local 287].

Local 287 sought arbitration alleging that Long Beach had violated provisions set out in a collective bargaining agreement* negotiated by the parties addressing [1] the layoff of certain Long Beach firefighters and [2] the terms and conditions of employment with respect to certain paramedics when Long Beach "unilaterally set the terms of employment" for certain paramedics when they were hired.

Initially the Appellate Division observed that a public employer has wide latitude to negotiate the terms of the agreements, and can agree to submit disputes to arbitration in "the absence of plain and clear prohibitions in statute or controlling decisional law, or restrictive public policy" and, Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 noted that although the Taylor Law reflects New York's " strong'" policy favoring arbitration, this principle is not without limits.

New York courts use a two-part test to determine if a dispute is arbitrable, first asking if "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." In the absence of any such prohibition, the court then inquires as to whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

A court must stay arbitration where it can conclude, upon the examination of the parties' contract and any implicated statute on their face, "that the granting of any relief would violate public policy."

Turning to Local 287's claim that Long Beach's decision regarding layoffs of the firefighters was subject to arbitration the Appellate Division said that Civil Service Law §80(1), Suspension or demotion upon the abolition or reduction of positions, provides that a public employer has the nondelegable discretion to determine—for reasons of economy, among others — what its staffing and budgetary needs are in order to effectively deliver uninterrupted services to the public. Accordingly, and in the absence of bad faith, fraud, or collusion, that discretion "is an undisputed management prerogative" for the public's benefit, and cannot be altered or modified by agreement or otherwise.

Thus, said the Appellate Division, arbitration of the claim regarding the layoffs of the firefighters would violate public policy.

Turning to Local 287's claims relating to the terms and conditions of employment of the paramedics, the court opined that "no public policy precludes arbitration of those claims." Further, the court noted that the arbitration provision in the CBA "permits arbitration of such claims."

* Civil Service Law Article 14, typically referred to as the "Taylor Law."

The decision is posted on the Internet at:

Friday, May 25, 2018

Admitting evidence of prior disciplinary action taken against the charged party


Admitting evidence of prior disciplinary action taken against the charged party
OATH Index No. 2310/17

Although the New York City Office of Administrative Trials and Hearings Administrative Law Judge Joycelyn McGeachy-Kuls ruled that evidence of prior discipline is not admissible to prove an employee engaged in the charged misconduct, she said that prior disciplinary events may be used to rebut employee’s testimony that he was unaware of work rules.

Judge McGeachy-Kuls then admitted evidence of prior discipline for failure to complete forms in accordance with procedure to rebut employee’s testimony that he lacked notice of the procedure. This evidence was admitted solely for that purpose and not to prove that the employee had committed the charged misconduct.

In contrast, if an employee's personnel history will be considered by the hearing officer to determine the penalty to be imposed if the individual is found guilty of some, or all, of the disciplinary charges and specifications filed against the individual, he or she must be advised of such action.

In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that an employee's personnel records could be used to determine the penalty to be imposed if (a) the individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and (b) the employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

The decision is posted on the Internet at:


Thursday, May 24, 2018

Processing an application for unemployment insurance benefits


Processing an application for unemployment insurance benefits
Matter of Weinstein (City of New York Dept. of Citywide Admin. Servs.--Commr. of Labor), 2018 NY Slip Op 03576, Appellate Division, Third Department

Guidelines applied by the NYS Department of Labor in determining if a claimant was entitled to receive unemployment insurance benefits include:

1. The determination of whether an employee was terminated for misconduct is a factual question for the Board to resolve.

2. There must be substantial evidence in the record to support the Board's decision.

3. A false representation on an employment application regarding whether a claimant has ever been convicted of a crime can constitute disqualifying misconduct on a claim for unemployment insurance benefits.

Fred Weinstein [Claimant] filed a claim for unemployment insurance benefits. Claimant had commenced his employment as a sanitation worker for the City of New York on September 15, 2014. His employment was terminated in September 2015 after it was discovered that he had provided false information on his employment application. Claimant's application for unemployment insurance benefits was initially denied by the Department of Labor on the ground that his employment was terminated for misconduct, but an Administrative Law Judge [ALJ] overturned the denial following a hearing and awarded the Claimant benefits.

The Unemployment Insurance Appeal Board [Board] had adopted the finding of the ALJ that Claimant had falsified his job application by answering no when asked if he had ever been convicted of a felony or misdemeanor when, in fact, he had been previously convicted of two felonies and six misdemeanors.

The Board concluded, however, that Claimant's false representation did not disqualify him from receiving unemployment insurance benefits due to the length of time that the employer took in taking action against him and the City's Department of Citywide Administrative Services [Employer] appealed.

The Appellate Division noted that the record was "not entirely clear" with respect to when the Employer first learned of Claimant's criminal history found that the Employer was aware no later than March 2015 that Claimant had falsely represented that history, and Claimant was terminated in September 2015.

The individual who investigated Claimant's application for employment for Employer testified that the length of time between the filing of the application and the termination was not excessive because of the large amount of applications for employment for the City of New York that must be investigated and the Employer's policy to provide an opportunity for the employee/applicant to respond to any adverse information uncovered by the investigation before taking action.

The Appellate Division held that the length of time taken by the Employer prior to its taking action to terminate Claimant, under these circumstances, should not have been a factor in determining whether Claimant's false representations constituted disqualifying misconduct for the purposes awarding Claimant unemployment insurance benefits.

Finding that Board's decision lacked substantial evidence to support its  determination that Claimant was entitled to receive unemployment insurance benefits, the Appellate Division ruled that the Board's determination "must be reversed."

The decision is posted on the Internet at:

Tuesday, May 22, 2018

The statutory rights of employees of the State and political subdivisions of the State absent from work as the result of a work-related injury or disease


The statutory rights of employees of the State and political subdivisions of the State absent from work as the result of a work-related injury or disease
Singleton v New York State Off. of Children & Family Servs., 2018 NY Slip Op 03411, Appellate Division, Third Department

The employee in this action, Charles Singleton, was injured on the job and was placed on leave pursuant to §71 of the Civil Service Law, commonly referred to as "Workers' Compensation Leave."

Essentially Mr. Singleton's employer, the New York State Office of Children and Family Services, OCFS, wrote to him indicating that he had the "right to a leave of absence from [his] position during [his] disability for a period of one cumulative year or sooner if found to be permanently disabled" and that if he did not return to work prior to the expiration of his workers' compensation leave his employment could be terminated as a matter of law."*

This, however, was not a pejorative termination in the nature of "termination for cause" as the individual placed on §71 has significant rights to reinstatement to his or her position, or to a similar position. Indeed, §71 does not use the word "termination" to describe the status of the individual on "Workers' Compensation Leave" upon the expiration of his or her §71 leave but rather refers to his or her status as having be "separated" from service as demonstrated by reference in the law to his or her rights to "Reinstatement after separation for disability."

Clearly the employee may return to work prior to the expiration of his or her leave of absence if medically qualified to perform the duties of his or her position.

If the employee does not return to work prior to the expiration of his or her §71 leave of absence, he or she may be separated from service but becomes eligible for reinstatement to his or her former position, or a similar position if his or former position is not available, upon his or her making [1] a timely request to return to duty and [2] being certified as being medically qualified to perform the duties of the position.

In the words of §71, "Such employee may, within one year after the termination of such disability,** make application to the [NYS] civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission."

In the event the individual is found medically qualified to return to work and no suitable position is available, §71 further provides that "If no appropriate vacancy shall exist to which reinstatement may be made, or if the work load does not warrant the filling of such vacancy, the name of such person shall be placed upon a preferred list for his or her former position, and he or she shall be eligible for reinstatement from such preferred list for a period of four years."

* Mr. Singleton had contended that he had sustained injuries from an assault-related injury at work which entitled him to a two-year leave pursuant to §71. OCFS notified petitioner that he had been placed on workers' compensation leave and that his injuries had been classified as a "non-assault injury," and thus was only entitled to a one-year leave of absence pursuant to §71.

** N.B. It is the date of  termination of  the individual's disability, in contrast the effective date of  the individual's "separation" upon the expiration of his or her "Workers' Compensation Leave," that triggers the running of the one-year statute of limitation for the purpose of the individual applying for reinstatement to his or her former, or a similar, employment. If the individual is determined not to be qualified to return to work, he or she continues as "separated" and may apply for reinstatement and a medical re-examination at some  future date.

The decision is posted on the Internet at:

Admitting evidence of prior disciplinary action taken against the charged party

Admitting evidence of prior disciplinary action taken against the charged party
OATH Index No. 2310/17

Although the New York City Office of Administrative Trials and Hearings Administrative Law Judge Joycelyn McGeachy-Kuls ruled that evidence of prior discipline is not admissible to prove an employee engaged in the charged misconduct, she said that prior disciplinary events may be used to rebut employee’s testimony that he was unaware of work rules.

Judge McGeachy-Kuls then admitted evidence of prior discipline for failure to complete forms in accordance with procedure to rebut employee’s testimony that he lacked notice of the procedure. This evidence was admitted solely for that purpose and not to prove that the employee had committed the charged misconduct.

In contrast, if an employee's personnel history will be considered by the hearing officer to determine the penalty to be imposed if the individual is found guilty of some, or all, of the disciplinary charges and specifications filed against the individual, he or she must be advised of such action.

In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that an employee's personnel records could be used to determine the penalty to be imposed if (a) the individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and (b) the employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

The decision is posted on the Internet at:



Friday, May 18, 2018

Determining if a communication sent to the employee constitutes a "letter of reasonable assurance of continued employment" within the meaning of Labor Law §590[10] and [11]

Determining if a communication sent to the employee constitutes a "letter of reasonable assurance of continued employment" within the meaning of Labor Law §590[10] and [11]
Matter of Enman (New York City Dept. of Educ. -- Commissioner of Labor), 2018 NY Slip Op 03416, Appellate Division, Third Department

Labor Law §590(11), which is analogous to Labor Law §590(10) dealing with teachers and other educational professionals, bars nonprofessionals who are employed by educational institutions from receiving unemployment insurance benefits during the time between two academic periods if they have received a reasonable assurance of continued employment. In Matter of Murphy [Copake-Taconic Cent. School Dist.-Commissioner of Labor], 17 AD3d 762, and in other cases addressing this issue, the courts have stated that "A reasonable assurance . . . has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period."

The New York City Department of Education challenged the Unemployment Insurance Appeal Board's determination that Shaniqua Enman, who worked as a per diem substitute paraprofessional for the New York City Department of Education, had not received a letter of reasonable assurance within the meaning of Labor Law §590(11) between two academic periods.  

Ms. Enman worked at schools within the New York City School District and was registered to receive assignments through the SubCentral Registry, an automated system for filling vacancies. During the 2015-2016 school year, Ms. Enman worked 161 days of the 179 days that were in the school year. She received 153 of her assignments directly from administrators at the schools where she worked and the remaining eight assignments through the SubCentral Registry.  

In June 2016, NYCDOE sent Ms. Enman a communication, which it contended constituted "a letter of reasonable assurance," indicating that for the 2016-2017 school year  it anticipated the same amount of work for her as a per diem substitute paraprofessional as in the previous year on substantially the same economic terms and conditions.

Notwithstanding this letter, Ms. Enman filed a claim for unemployment insurance benefits and the Department of Labor found her entitled to receive such benefits. This  determination was later upheld by an Administrative Law Judge following a hearing.

On appeal, the NYCDOE objected to Ms. Enman's receipt of unemployment insurance benefits on the ground that it had provided her with a letter of reasonable assurance pursuant to Labor Law §590(11). The Unemployment Insurance Appeal Board overruled NYCDOE's objection and sustained the Administrative Law Judge's decision. NYCDOE appealed the Board's ruling.

The Appellate Division disagreed with the Board's decision, noting that the Board had initially found that the June 2016 letter sent by the NYCDOE to Ms. Enman constituted a reasonable assurance of continued employment for the 2016-2017 school year. But, said the court, instead of ending the inquiry at that point, the Board "went on to ascertain whether the reasonable assurance was bona fide in light of the testimony presented at the hearing."

The Board ultimately found that the testimony of the NYCDOE's witness was not competent with respect to assignments that Ms. Enman obtained through means other than the SubCentral Registry and declined to count such assignments in projecting those that would be made available to her during the 2016-2017 school year. Rather, it decided that Ms. Enman would have to be offered 145 assignments during the 2016-2017 school year in order to meet the 90% threshold, and considering that she had obtained most of her previous assignments through direct contact with school administrators, the Board concluded that the evidence was insufficient to establish that the NYCDOE provided Ms. Enman with a reasonable assurance of continued employment.*

The Appellate Division ruled, based on its review of the record, the Board's decision was not supported by substantial evidence. The court explained that, in reaching its conclusion, the Board essentially imposed a requirement that a reasonable assurance be a guarantee of earnings during the following school year, an interpretation that finds no support in the statute or case law.

Further, said the court, "the Board erroneously failed to include in its projection the assignments that [Ms. Enman] obtained directly from school administrators during the 2015-2016 school year, as these assignments were reflected in the SubCentral Registry after [she had] accepted them."

The decision indicates that the SubCentral Registry identified paraprofessionals who were working as well those who were not, a critical factor in ascertaining those paraprofessionals who were available and would be likely to accept future assignments. In the words of the Appellate Division, "As long as a paraprofessional was registered in the SubCentral Registry, as was claimant, his or her assignments and/or availability were monitored" and "the 153 assignments that [Ms. Enman] obtained directly through school administrators during the 2015-2016 school year exceeded the 145 needed to satisfy the 90% threshold and should have been counted in determining whether she received a reasonable assurance of continued employment."

The court also noted that the NYCDOE's witness testified that no changes were anticipated with respect to the budget, salary or number of students and paraprofessionals needed for the upcoming school year and further stated that 14% of jobs go unfilled, providing ample opportunity for substitutes to find openings.

In view of the foregoing, opined the Appellate Division, the record establishes that the NYCDOE provided Ms. Enman with a reasonable assurance of continued employment within the meaning of Labor Law §590(11), thereby precluding her from receiving Unemployment Insurance Law benefits.

* The Appellate Division commented that "The Board appears to have erroneously referenced the 2015-2016 school year in its decision."

The decision is posted on the Internet at:

Thursday, May 17, 2018

Employee penalized 60-day suspension without pay after striking a patient and failing to report the incident


Employee penalized 60-day suspension without pay after striking a patient and failing to report the incident
OATH Index No. 584/1

A New York City Emergency Medical Technician [EMT] twice struck a handcuffed, emotionally disturbed patient after the patient had spat at her. The EMT also failed to report the incident to a supervisor as required.

OATH Administrative Law Judge Kevin F. Casey found that the EMT was provoked but ruled that such provocation did not excuse the EMT's action.

Although the ALJ credited EMT’s testimony that she did not intend to injure the patient and found the act to be an aberration, Judge Casey concluded that "A very substantial penalty short of termination, resulting in loss of pay for two months, would give appropriate weight to the mitigating circumstance, but would also make clear to [the EMT], her colleagues, and the public that striking an emotionally disturbed patient and failing to report it are unacceptable." 

The ALJ recommended the imposition of a sixty-day suspension without pay with credit for pre-hearing suspension time served as the EMT's penalty.

The decision is posted on the Internet at:

Wednesday, May 16, 2018

The statutory rights of employees of the State and political subdivisions of the State absent from work as the result of a work-related injury or disease


The statutory rights of employees of the State and political subdivisions of the State absent from work as the result of a work-related injury or disease
Singleton v New York State Off. of Children & Family Servs., 2018 NY Slip Op 03411, Appellate Division, Third Department

The employee in this action, Charles Singleton, was injured on the job and was placed on leave pursuant to §71 of the Civil Service Law, commonly referred to as "Workers' Compensation Leave."

Essentially Mr. Singleton's employer, the New York State Office of Children and Family Services, OCFS, wrote to him indicating that he had the "right to a leave of absence from [his] position during [his] disability for a period of one cumulative year or sooner if found to be permanently disabled" and that if he did not return to work prior to the expiration of his workers' compensation leave his employment could be terminated as a matter of law."*

This, however, was not a pejorative termination in the nature of "termination for cause" as the individual placed on §71 has significant rights to reinstatement to his or her position, or to a similar position. Indeed, §71 does not use the word "termination" to describe the status of the individual on "Workers' Compensation Leave" upon the expiration of his or her §71 leave but rather refers to his or her status as having be "separated" from service as demonstrated by reference in the law to his or her rights to "Reinstatement after separation for disability."

Clearly the employee may return to work prior to the expiration of his or her leave of absence if medically qualified to perform the duties of his or her position.

If the employee does not return to work prior to the expiration of his or her §71 leave of absence, he or she may be separated from service but becomes eligible for reinstatement to his or her former position, or a similar position if his or former position is not available, upon his or her making [1] a timely request to return to duty and [2] being certified as being medically qualified to perform the duties of the position.

In the words of §71, "Such employee may, within one year after the termination of such disability,** make application to the [NYS] civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission."

In the event the individual is found medically qualified to return to work and no suitable position is available, §71 further provides that "If no appropriate vacancy shall exist to which reinstatement may be made, or if the work load does not warrant the filling of such vacancy, the name of such person shall be placed upon a preferred list for his or her former position, and he or she shall be eligible for reinstatement from such preferred list for a period of four years."

* Mr. Singleton had contended that he had sustained injuries from an assault-related injury at work which entitled him to a two-year leave pursuant to §71. OCFS notified petitioner that he had been placed on workers' compensation leave and that his injuries had been classified as a "non-assault injury," and thus was only entitled to a one-year leave of absence pursuant to §71.

** N.B. It is the date of  termination of  the individual's disability, in contrast the effective date of  the individual's "separation" upon the expiration of his or her "Workers' Compensation Leave," that triggers the running of the one-year statute of limitation for the purpose of the individual applying for reinstatement to his or her former, or a similar, employment. If the individual is determined not to be qualified to return to work, he or she continues as "separated" and may apply for reinstatement and a medical re-examination at some  future date.

The decision is posted on the Internet at:

Tuesday, May 15, 2018

Justia lists 7,050 Law Blogs now on line in 74 subcategories


Justia lists 7,050 Law Blogs now on line in 74 subcategories*
 
Click on the text highlighted in blue to access the  Administrative Law Blog listed. 

* N.B. - Following Justia's Administrative Law Blog listing is Justia's listing of  7,050 "Blawgs" in the 74 Practice Areas of Law currently being maintained by Justia.

Top 40 Administrative Law Blogs in order of current popularity

Provides summary and commentary on selected court and administrative decisions and related matters affecting public employers and employees in New York State. By Harvey Randall, Esq.
Last Updated: May 11, 2018 - Rank this Week: 36

Covers the Department of Treasury's Office of Foreign Assets Control and its Specially Designated Nationals list. By McNabb Associates, P.C.
Last Updated: November 27, 2014 - Rank this Week: 219

A regulation blog, in affiliation with the Penn Program on Regulation. From the University of Pennsylvania Law School.
Last Updated: May 10, 2018 - Rank this Week: 272

Addresses issues faced by license professionals and regulated businesses in civil, business, administrative and criminal matters with an emphasis on health care. By Green & Associates.
Last Updated: May 9, 2018 - Rank this Week: 364

Distilling a million label approvals down to the ones that affect you. Tracks legal trends in beer, wine and spirits product approvals. By Lehrman Beverage Law.
Last Updated: January 26, 2018 - Rank this Week: 435

Analysis and commentary on trends and developments in life sciences and health care law. By Reed Smith.
Last Updated: May 2, 2018 - Rank this Week: 483

Covers professional licensing matters and related regulatory issues for health care professionals. By the Leichter Law Firm.
Last Updated: February 21, 2018 - Rank this Week: 484

Edited by University of Miami School of Law Professor Michael Froomkin, The Journal of Things We Like (Lots)–JOTWELL–invites law professors to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship.
Last Updated: May 11, 2018 - Rank this Week: 628

Covers futures, commodities and forex regulation. By Shipkevich Law Firm.
Last Updated: May 9, 2018 - Rank this Week: 589

Covers Social Security disability law and special needs trusts. By Sheri R. Abrams.
Last Updated: April 30, 2018 - Rank this Week: 644

Covers business, employment, trust & estates family, real estate, regulatory compliance and utility law. By Sullivan & Ward, PC.
Last Updated: April 14, 2015 - Rank this Week: 578

Covers Mexican law.
Last Updated: May 11, 2018 - Rank this Week: 819

Examines the Medicare administrative appeals process and covers issues related to the appeal of ZPIC, PSC and RAC audits of Medical claims. By Lilies Parker.
Last Updated: January 29, 2013 - Rank this Week: 772

Provides breaking news and analysis of communications law and business. By Pillsbury Winthrop Shaw Pittman LLP.
Last Updated: April 30, 2018 - Rank this Week: 1454

Covers health law and nursing law. By George F. Indest III, P.A.
Last Updated: April 9, 2018 - Rank this Week: 1220

Covers aviation law issues, including federal environmental and transportation regulations. By Chevalier, Allen and Lichman, LLP.
Last Updated: April 20, 2018 - Rank this Week: 1932

Covers cases, legislation, and developments regarding patents, trademarks, copyrights, trade secrets, FDA regulatory, life science, Paragraph IV, ANDA, Hatch-Waxman, pharma, branded & generic drugs, Lanham Act, unfair competition, false advertising, Internet, domain name, and e-commerce law.
Last Updated: January 25, 2018 - Rank this Week: 1983

Covers administrative rulemaking processes and administrative law issues. For members of the Administrative Codes and Registers (ACR).
Last Updated: December 1, 2014 - Rank this Week: 1912

Covers administrative law and the public sector. By E.L. Lipman.
Last Updated: December 19, 2011 - Rank this Week: 1828

Analyzes the substantive and procedural aspects of international enforcement law.
Last Updated: May 11, 2018 - Rank this Week: 2605

Swiss blawg covering a broad range of Swiss and international laws.
Last Updated: May 9, 2018 - Rank this Week: 2708

Covers Swiss, European and international legal news. It focuses on data protection, privacy, technology law, IT/IP law, criminal law, administrative law, civil law, tax law, banking and finance law, bankruptcy, competition law and construction as well as real estate law.
Last Updated: May 9, 2018 - Rank this Week: 2924

Covers the intersection of customs law and asset seizures, with a particular focus on reporting on news of U.S. Customs & Border Protection currency seizures from international travelers for failure to report, bulk cash smuggling, or structuring.
Last Updated: May 4, 2018 - Rank this Week: 2992

Covers case law, developments and changes in the veterans law. Provide practical information to improve advocacy skills before VA Regional Offices and the BVA, and teaches lawyers the business of veterans law. By Attig Steel PLLC.
Last Updated: May 2, 2018 - Rank this Week: 2886

Looks at white collar, congressional, SEC, energy enforcement and other government inquiries. By McGuireWoods.
Last Updated: May 2, 2018 - Rank this Week: 2832

Covers disability and social security, elder law, and VA benefits.
Last Updated: April 23, 2018 - Rank this Week: 4104

By Fox Rothschild LLP.
Last Updated: April 12, 2018 - Rank this Week: 3103

Covers False Claims Act (FCA) and other civil and criminal health care fraud, regulatory compliance, and litigation and investigations. By Cadwalader, Wickersham & Taft LLP.
Last Updated: April 5, 2018 - Rank this Week: 2988

Covers aviation and airport development, with a focus on the industry\'s legal and regulatory issues. By Taber Law Group.
Last Updated: March 28, 2018 - Rank this Week: 2726

Covers Wisconsin unemployment law. By Victor Forberger.
Last Updated: March 14, 2018 - Rank this Week: 3335

Covers New Jersey expungement law and record clearing and sealing services and New Jersey name change law.
Last Updated: March 12, 2018 - Rank this Week: 3159

By George F. Indest III, P.A.
Last Updated: March 5, 2018 - Rank this Week: 2981

By George F. Indest III.
Last Updated: February 28, 2018 - Rank this Week: 3192

Covers the Social Security disability process and strategies for winning cases. By Jonathan Ginsberg.
Last Updated: January 26, 2018 - Rank this Week: 3842

Covers government contract bid protests. By Whitcomb, Selinsky, McAuliffe PC.
Last Updated: January 16, 2018 - Rank this Week: 3470

Covers regulatory and statutory updates from the healthcare industry. By O'Connell & Aronowitz.
Last Updated: December 5, 2017 - Rank this Week: 4598

Covers the history of both international and domestic wine laws and developing legal issues in the wine industry. By Lindsey A. Zahn.
Last Updated: November 8, 2017 - Rank this Week: 2865

Covers health care legislation, enforcement and regulation. By George F. Indest III, P.A.
Last Updated: June 16, 2016 - Rank this Week: 4161

Covers health law.
Last Updated: July 22, 2013 - Rank this Week: 3074

Provides information for professional and occupational licensees and license applicants in California who have been denied a license, credential, or certificate or who are at risk for disciplinary action (revocation, suspension, probation) against the license by the State.
Last Updated: March 30, 2011 - Rank this Week: 3761
http://licenseadvocateslawgroup.blogspot.com/


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