May 8, 2018

A delay in a disciplinary hearing resulting from an employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay


A delay in a disciplinary hearing resulting from an employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay
OATH Index No. 1355/17

A civil engineer failed to report for a mandatory overtime shift and a medical assessment of her fitness for duty, and refused to submit documentation concerning these matters when directed to do so.

One of the issues considered by the ALJ was the employee claim that she was entitled to be paid for certain absence without pay in excess of the statutory 30-days suspension without pay authorized by Section 75 of the Civil Service Law notwithstanding the fact that she was place on such leave without pay in excess of 30 days when her disciplinary hearing was adjourned at her request because her attorney was not available.

The Civil Service Law provides that an employee may be suspended without pay for a period not exceeding thirty days pending the determination of charges of incompetency or misconduct and the employee may recover back pay for any such suspension exceeding 30 days, provided that the delay is not the employee’s fault. In this instance the appointing authority argued that the employee should not be paid for delays resulting from its agreeing to an adjournment of the hearing at the employee's request.

The appointing authority contended that it did not object to the employee's hearing adjournment request "provided that there was no pay liability" against the employer attributable to the employee's  request for the adjournment. Thus, argued the appointing authority, the employee is not entitled to back pay for any period of suspension without pay attributable the adjournment of the hearing.

Judge Gloade, explained that "This tribunal may recommend restoration of pay for any period of pre-trial suspension that exceeds 30 days," citing Teachers’ Retirement System v. Barrett, , OATH Index No. 1210/99," and, citing Dep’t of Environmental Protection v. D’Amore, OATH Index No. 1307/17, said that an Administrative Law Judge may recommend payment of back pay if employee was placed on an involuntary disability leave prior to a hearing without justification. Further, said the ALJ, "Where an employee is suspended for more than 30 days, he or she may recover back pay for the period of suspension exceeding 30 days, provided that the delay in disposing of the charges is not the employee’s fault.

In contrast, said Judge Gloade, a delay occasioned by an employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay. "While the employee's request for adjournment appears to be bona fide, that does not exempt her from the general rule that the party responsible for the delay bears the cost."

Citing Transit Auth. v. Danese, OATH Index No. 1043/95, ALJ Gloade concluded that it was unclear from the record whether the employee was entitled to back pay and declined to undertake an accounting to determine how much, if any, back pay the employee would be entitled to receive "as it was beyond the purview of the tribunal."

The appointing authority adopted the findings, and the penalty recommended, by the ALJ.

The decision is posted on the Internet at:

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