The impact of COVID-19 on the economy has resulted in many public employers in New York State considering laying off staff in order to close budget gaps.
The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book addresses the relevant laws, rules and regulations, and selected court and administrative decisions, to be considered in a layoff of personnel in the event of a reduction of force by the State of New York as the employer and its political subdivisions. Posted below, with permission, is the introductory chapter of this e-book summarizing such elements affecting layoff decisions as the abolishment of positions; tenure; seniority; leaves and resignations; layoff units; military service; takeovers; affirmative action; retirement; and preferred and similar lists.
Both the Civil Service Law and the Education Law, and rules and regulations promulgated pursuant to such laws, set out guidelines and procedures addressing the layoff of public employees of the State as an employer and political subdivisions of the State including school districts and BOCES. Many court and administrative rulings have been handed down interpreting the application and administration of these statutes, rules, regulations and administrative determinations with respect to layoff of officers and employees in the public service.
Essentially, such officers and employees are to be laid off based on their relative seniority in the inverse order of their permanent appointment. Errors in making determinations concerning “seniority” for the purposes of layoff are costly as the redress in such cases is the payment of back salary and benefits to the individual unlawfully laid off from his or her position.(1)
§§80 and 80-a of the Civil Service Law and various provisions of the Education Law set out the procedures to be followed in executing a layoff of employees in the classified service and the unclassified service respectively.(2) These provisions, and similar statutes, have become required reading for many.
As to employees in the classified service, the date of the individual’s “original appointment” to a position on a permanent basis controls, regardless of the fact that the individual was originally appointed a different the position from which he or she is laid off is in the competitive class [see CSL §80] or the noncompetitive class [see CSL §80-a].
In contrast, the Education Law provides that in the event a board of education abolishes a position the services of the tenured teacher having the least seniority in the school district or BOCES “within the tenure area of the position abolished shall be discontinued.”
This element – seniority – cannot be diminished or impaired by the terms of collective bargaining agreement as demonstrated by City of Plattsburgh v Local 788, 108 AD2d 1045.
In Plattsburgh the issue concerned the application of a Taylor Law contract provision dealing with seniority in a layoff situation.
The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff under State law, i.e., the individual's date of initial permanent appointment in public service.
For example, assume Employee A was provisionally appointed on January 1, and Employee B was appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1.
Under the terms of the Local 788 collective bargaining agreement A would have greater seniority for layoff purposes than B. But §§80 and 80-a of the Civil Service Law provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the law, B would have greater seniority than A.
This was the problem in the Plattsburgh case. The City laid off Mousseau rather than another worker, Racine. While Mousseau, had been employed by the City for a longer period than Racine, Racine had received his permanent appointment before Mousseau was permanently appointed.
The Union grieved, contending that under the seniority provision in the collective bargaining agreement, Racine should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus Mousseau, rather than Racine, had to be laid off first. Plattsburgh won an order prohibiting arbitration. The Court said that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.
As the Court of Appeals said in County of Chautauqua v. Civil Service Employees Ass'n, 8 N.Y.3d 513, “Once such an informed decision as to which positions are to be [abolished] is made, §80(1) obligates the employer to respect the seniority rights of its employees."
Similarly, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.
However, in Gee v Board of Educ. of Rochester City Sch. Dist., 99 AD3d 1260, the Appellate Division, 4th Department, conclude that “by accepting employment as a school instructor and entering into a collective bargaining agreement as a result of his membership in the union representing him, the individual waived any right to be credited for seniority in the tenure area of teacher.”
The court cited Dietz v Board of Educ. of Rochester City School Dist., 98 AD3d 1251 in which it was held “… the collective bargaining agreement (CBA) between the District and the union representing petitioner provided that layoffs of ‘school instructors’ would be affected within the four separate categories of school instructors identified in the CBA rather than within tenure areas; that separate seniority lists for purposes of layoffs are maintained for school instructors; and that, ‘[i]n the event that positions are abolished, school instructors shall not have rights to displace teachers in regular school programs having less seniority, nor shall teachers have rights to displace school instructors having less seniority.’"
Another element to consider is “continuous service.” §§80.2 and 80-A.2 of the Civil Service Law set out the effect, or lack thereof, of “interruptions in service” in the event of resignation followed by a reinstatement; appointment to a position in the unclassified service and other types of absences or leaves.
Abolishment of positions
As to mechanics, the Attorney General has concluded that there must be an actual and lawful abolishment of a position in order to lawfully remove an employee from his or her position pursuant to §§80 and 80-a (1976 Opinions of the Attorney General 7; see, also, O'Reilly v Nedelka, 212 A.D.2d 714).
Typically the appointing authority determines which position or positions are to be abolished. In some cases, however, the Doctrine of Legislative Equivalency may be a consideration.
The Doctrine of Legislative Equivalency states that only the entity that created the position may abolish it [i.e., a position created by a legislative act can only be abolished by a correlative legislative act" (Matter of Torre v. County of Nassau, 86 NY2d 42)].
This Doctrine, and a number of other significant public personnel law issues including the establishment of positions in the Classified Service by a political subdivision of the State, jurisdictional classification of positions in the Classified Service and the impact of a Taylor Law agreement in the event there is layoff of employees in the Labor Class, were considered by the Appellate Division in Chandler v Village of Spring Valley, 104 AD3d 847.
According to the decision, the Village of Spring Valley appointed three individuals [petitioners] to classified service positions of “Laborer” in the Labor Class in its Department of Public Works(3) and that these three individuals had “completed their probationary periods" prior to August 10, 2010. On August 10, 2010, however, the County of Rockland Department of Personnel, the municipal civil service commission [Commission] having jurisdiction over the Village, advised Spring Valley that it had "no record of employment" for the three petitioners, citing Civil Service Law §22 [Certification for positions] and §97 [Reports of appointing officers; official rosters].
The Commission’s reference to Civil Service Law §22, Certification for positions, suggests that these were new position or existing positions in a jurisdictional class other than the Labor Class in that Section 22 provides that: “Before any new position in the service of a civil division shall be created or any existing position in such service shall be reclassified, the proposal therefore, including a statement of the duties of the position, shall be referred to the municipal commission having jurisdiction and such commission shall furnish a certificate stating the appropriate civil service title for the proposed position or the position to be reclassified. Any such new position shall be created or any such existing position reclassified only with the title approved and certified by the commission.
Significantly, Civil Service Law §44 provides that all positions in the Classified Service are in the competitive class unless placed in a different jurisdictional classification.(3) The Appellate Division's decision, however, makes no reference to these three laborer positions having been placed in the Labor Class by amendment of the Commission's Rules, which rules are subject to the approval of the State Civil Service Commission in accordance with the provisions of Civil Service Law §20.
Accordingly, appears that the three petitioners at the time of their respective “appointment” were provisionally appointed to three “new positions in the competitive class,” and that these appointments should have been so reported to the Commission with Village’s request that the Commission amend its rules to “jurisdictional classify the three positions in the Labor Class.” The Commission’s August 10, 2010 notification also advised the Village that the "[petitioners] without approval from this office to work must be terminated immediately unless there is a resolution to the situation."
That same day, the Village Board adopted Resolution No. 519 of 2010, unanimously resolving that the individual petitioners "shall be immediately removed” from the Village payroll and informed that they are not employees of the Village. The three individuals then filed a petition pursuant to CPLR Article 78 seeking to annul the Village’s resolution removing them from the Village payroll, to compel the Village to comply with its ministerial duty under the Civil Service Law by submitting the required paperwork to the Commission, and to reinstate them with back pay.
The petitioners also submitted evidence that another employee in the labor class with less seniority had been retained by the Village after their removal from the payroll, an action they alleged violated their “seniority rights under the governing collective bargaining agreement.”(4)
In response, the Village contended that in the months preceding its adoption of the resolution terminating the three petitioners it had conducted a comprehensive review of its operations and determined that the Department of Public Works "would operate more economically and efficiently by creating three new positions with the title of assistant maintenance mechanic and eliminating all positions in the labor class by attrition and/or layoffs."
In rebuttal, the petitioners submitted evidence that the new title “Assistant Maintenance Mechanic” was proposed on July 27, 2010 and notice of three vacancies in the new class was posted on that date. Accordingly the petitioners contended that the Village had not properly abolished the individual petitioner's positions on August 10, 2010, but had terminated their employment "in violation of the collective bargaining agreement and the Civil Service Law."
The Supreme Court denied the petition and dismissed the proceeding, holding that the Village had properly abolished the individual petitioners' positions for the purpose of economy or efficiency and that the petitioners had failed to allege or establish that the Village had acted in bad faith in abolishing their positions.
The Appellate Division reversed the lower court’s ruling, explaining that the Doctrine of "Legislative equivalency requires that a position created by a legislative act can only be abolished by a correlative legislative act," citing Torre v County of Nassau, 86 NY2d 42.
Here, said the court, it is undisputed that each of the individual petitioners' positions was created by resolution of the Village Board, and thus, another resolution of the Village Board was required to abolish each of those positions. Contrary to the Village's contention, the Appellate Division ruled that three positions in question were not abolished by the Village's Resolution No. 519 of 2010.
The Appellate Division explained that “The misconception of the Village Board that the positions did not exist was premised upon the Village's own failure to comply with the filing requirements of the Civil Service Law pursuant to the notification by the municipal civil service commission." The Village Board had “unanimously resolved to ‘immediately remove[ ]’ the individual petitioners from the Village payroll and to inform them that they ‘are not employees of the Village,’ rather than to remedy their filing and certification violations under the Civil Service Law.” Further, said the court, the plain language of the subject resolution “refutes the [Village's] contention that the Village Board was abolishing positions then in existence.”
Moreover, said the Appellate Division, the record supports the petitioners' contention that although the resolution “immediately removed the individual petitioners from the payroll,” the Village continued to employ another laborer with less seniority. The Appellate Division held that the petitioners established that the positions of the individual petitioners were not abolished and they were laid off in violation of the seniority provisions of the collective bargaining agreement. The court explained that the Village's action in removing the individual petitioners from the payroll was not justified by its proper creation of a new class of employees, with the intention of eliminating the labor class by attrition or layoff.
Clearly "A public employer may abolish civil service positions for the purpose of economy or efficiency, as long as the position is not abolished as a subterfuge to avoid statutory protection afforded civil servants before they are discharged." Here, however, the Appellate Division ruled that “although the evidence supported the Village’s contention that it intended to abolish the laborer positions after it had created the new class of assistant maintenance mechanic,” the evidence does not support its contention that the Village actually abolished the individual petitioners' positions in the resolution dated August 10, 2010 [emphasis in the decision].
In any event, said the court, even if the August 10 resolution could be construed to abolish the individual petitioners' positions effective August 10, 2010, the immediate termination of their employment pursuant to that resolution violated a provision in the collective bargaining agreement requiring two weeks notice prior to terminating an employee whose position has been abolished, and thus constituted improper abolishment of a civil service position "to avoid the statutory [in this instance better read “a contractual”] protection afforded civil servants before they are discharged."
The Appellate Division reversed the Supreme Court’s decision, annulled the Village’s August 10 resolution and remitted the case to the Supreme Court, Rockland County for further proceedings “including a calculation of the individual petitioners' pay retroactive to August 10, 2010.”
Once it is decided which competitive class positions [and with respect to the State as an employer, positions in the noncompetitive class] in a layoff unit are to be abolished, two factors control for the purposes determining the individual or individuals to be laid off: the employee's tenure status [i.e., the permanent, contingent permanent, temporary, or provisional status of the worker] and his or her seniority.
Layoff units must be considered as well. Among the elements that complicate the determination of the specific individual or individuals to be suspended or displaced as a result of a layoff are (1) the identification of the specific layoff unit(s) for layoff purposes and (2) the employee's decision with respect to exercising any "displacement," bumping" or "retreat" rights within that layoff unit that he or she may have. With respect to the State as an employer, layoff units are set out in the Rules of the State Civil Service Commission [see 4 NYCRR 72 below].
It could be costly to the appointing authority if it fails to make correct determinations concerning an employee's tenure status and seniority for the purposes of layoff. If a person ultimately found to have superior rights to retention was laid off and another individual having lesser rights to retention was continued in service instead, courts will usually award the individual who was laid off in error back salary and other benefits and the appointing authority would be directed to reinstate the individual retroactively to his or her former position as well.
Layoffs from positions in the unclassified service: Layoffs of individuals employed in positions in the unclassified service are also governed by statute. For example, §§2510, 2588 and 3013 of the Education Law, among other sections, control with respect to the layoff of tenured teachers and administrators employed by a school district or a BOCES.
In addition, Rules of the Board of Regents must be considered. For example, 8 NYCRR 30-1.13 [Rights incident to abolition of positions] allows a more senior individual to "bump" a less senior individual following his or her transfer to position in another tenure area in the course of a layoff situation.
Tenure
Insofar as tenure is concerned, those lacking permanent status in the title [i.e., temporary employees and provisional appointees] are to be terminated before permanent employees are laid off. Permanent employees serving their probationary period are to be laid off before permanent employees in the title who have completed their probationary period. For the most part, so-called "contingent permanent employees" enjoy the same tenure rights as permanent employees when it comes to layoff.(5)
Seniority
As to seniority, the basic principle in a layoff situation is "LIFO" - Last In; First Out. For the purposes of §§80 and 80-a, seniority is determined on the basis of the date of the individual's initial permanent appointment followed by continuous permanent status in the classified service up to the date of his or her layoff.
Note that it is the initial date of permanent appointment rather than the date on which the employee attained tenure upon satisfactory completion of his or her probationary period that controls.
Such “seniority" is not always the same as the employee's "seniority in the title" or "seniority" under a Taylor Law agreement.
Taylor Law contract provisions, however, may not adversely affect the layoff rights vested in employees by laws such as §§80 or 80-a of the Civil Service Law. [see Plattsburgh v Local 788, 108 AD2d 1045].
Some collective bargaining agreements may set out a different basis for determining seniority or grant “super-seniority” to certain individuals. In a layoff situation, the statutory provisions regarding determining seniority trump those set out in a collective bargaining agreement.
The fact that at sometime during his or her career the employee may have been provisionally promoted or been placed on leave from his or her "permanent position" or employed in a position in a different jurisdictional class will not necessarily constitute a break in the employee's "continuous permanent status" for the purposes of §§80 and 80-a. In some cases the employee's date of seniority may include service with another governmental jurisdiction.
Breaking ties in seniority: Sometimes it may be necessary to break a “tie” in seniority, [for example, see CSEA v OMH, 196 A.D.2d 276; Fiffe v City of Cohoes CSD, 262 A.D.2d 762], especially in a layoff involving a school district where typically a number of educators are appointed simultaneously effective at the beginning of an academic year [see, for example, Decisions of the Commissioner of Education 12933].
Essentially any rational method of ranking to break ties in seniority may be used as long as it is consistently applied to those subject to the layoff.
Leaves and resignations
Separation from employment after a leave of absence without pay from a position in the classified service in excess of one year would, in most cases, constitute an interruption of continuous service. Service is deemed interrupted if an individual resigns from his or her position and is not reinstated or reappointed within one year of the effective date of the resignation.(6)
Layoff units
Among the elements that complicate the determination of the specific individual or individuals to be suspended or displaced as a result of a layoff are:
(1) the identification of the specific layoff unit(s) for layoff purposes and
(2) the employee's decision with respect to exercising any "displacement," "bumping" or "retreat" rights within that layoff unit that he or she may have [see, for example, Rules of the State Civil Service Commission, 4 NYCRR 5.5 et. seq.
Layoff units are set out in the President's Regulations [see 4 NYCRR 72].
If only a few positions are involved in a layoff, it is somewhat easier to determine the specific individual or individuals to be laid off.
Where large numbers of positions are abolished, especially where the layoff unit is geographically spread out, the task of determining the rights of employees based on their relative seniority is made significantly more complex.
Military service
Military service(7) may be a factor in determining seniority as well.
A veteran who served in time of war may be entitled to have his or her "seniority date" adjusted for the purposes of layoff [§85, Civil Service Law]. Five years of service are credited to an eligible disabled veteran's original date of permanent appointment; 2 years of service credit is added in the case of non-disabled veterans. Also, the spouse of a 100% disabled veteran may be eligible for five years of "additional" service credit in layoff situations if he or she meets the requirements set out in §85.7 of the Civil Service Law.
Civil Service Law §85.7(1) provides that a blind employee is entitled to absolute preference in retention in cases of layoff.
Also, §86 of the Civil Service Law provides for the transfer of veterans and exempt volunteer firemen employed by political subdivisions of the State in positions in the non-competitive class or in the labor class employed by a political subdivision of the State upon abolition of positions in such classes [see, for example, Bartholomew v Columbia County, 191 A.D.2d 88].
Takeovers
Another element that may be a factor in some layoff situations involves determining §§80 or 80-a seniority for individuals who attained permanent status with a public employer as a result of a "takeover" of a private institution or enterprise by a governmental employer pursuant to §45 of the Civil Service Law or a similar law. Such employees will typically have two seniority dates to consider and it may be necessary to consider both when determining their retention rights in a layoff situation.
One is their date of seniority with respect to other public employees in the layoff unit generally, usually determined on the basis of the effective date of the takeover. The second is the date of their seniority with respect to their coworkers at the private enterprise continued in public service pursuant to §45 upon the takeover.Collective bargaining agreements: As noted earlier, another difficulty may arise as a result of an employer's efforts to comply with "layoff provisions" contained in a Taylor Law agreement.
As the Plattsburgh decision indicates, [Plattsburgh v Local 788, 108 AD2d 1045], statutory seniority rights for the purposes of layoff may neither be impaired nor limited by Taylor Law agreements.
Similarly, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.
Affirmative Action
Layoff may also adversely impact affirmative action plans, interests and goals. Employees appointed pursuant to Affirmative Action programs may be among those having the least seniority and thus having the greatest potential of being laid off in the event of a “reduction in force [RIF].
Further, reinstatement following layoff is also based on seniority and here the so-called "rule of one" controls. The person having the greatest seniority willing to accept the position must be appointed to the item from the preferred list or the position must be kept vacant.
One Federal appeals court has concluded that unless there is some evidence that layoff procedures based on seniority were adopted or applied with an intent to discriminate against protected classes, layoffs based on seniority neither violate Title VII nor the post-Civil War Civil Rights statutes [42 USC 1981, 42 USC 1983] (see NAACP v Detroit Police Officers Association, 52 FEP 1001).
As minorities and women currently tend to cluster in the “lowest in seniority” group, layoffs based on traditional seniority provisions will most likely result in adverse impact. One of the factors to be considered is the influence of public employee unions that have generally favored “seniority” in contract provisions where possible. A number of attempts to negotiate minimizing the effect of layoff through work sharing or reduced workweek scheduling have been attempted with little success. However, it has been suggested that affirmative action considerations in connection with work force reductions may result in procedures could permit a public employer to retain all employees through mandated part-time work schedules, involuntary furlough in lieu of layoff or other methods to avoid the erosion of past equal employment gains.
Swiftly following its decision in the American Tobacco case, the United States Supreme Court issued its opinion in Pullman-Standard v Swint, 456 U.S. 273. The decision holds that it is not unlawful discrimination under Title VII to operate a seniority system that has some discriminatory consequences unless it is shown that the system was purposefully discriminatory. Disparate impact alone was viewed as insufficient to invalidate the seniority system even though it may perpetuate pre-Title VII discrimination. This decision is viewed as illustrative of a trend in court decisions to place greater burdens on plaintiffs to show a violation of Title VII in cases where “length of service” is the criteria for selection, promotion or layoff.
The U. S. Supreme Court in Guardians v Civil Service Commission of the City of New York (51 LW 5105) holds that while proof of intentional discrimination is not required to establish a prima facie case of unlawful discrimination for the purposes of Title VII, intentional discrimination must be shown in order to be given compensatory relief under Title VI. In this case the compensatory relief sought was “constructive seniority” and “administration of a promotion test to minorities”. If intentional discrimination is not shown in Title VI cases, only “limited injunctive relief” will probably be granted by federal Courts.
While the disparate impact standard may be sufficient to establish a “prima facie” case of discrimination in seniority cases, plaintiffs apparently now will have to show some intentional discriminatory purpose before the burden of going forward is shifted to the defendant.
Some believe that this will make it almost impossible to win Title VII claims alleging unlawful discrimination where contracts or law control advancement or layoff on the basis of seniority. As earlier noted, this decision may affect the results achieved through affirmative action efforts in layoff situations should public employers continue to reduce their work forces.
Retirement
In an effort to reduce the total number of persons to be laid off, legislation may be enacted that provides certain employees with a "retirement incentive."
Many individuals faced with layoff who are eligible to retire will undoubtedly consider this option, especially where an "early retirement option" has been made available to officers and employees. A provision that may be of interest to persons who are not eligible for "superannuation retirement" and who are to be laid off is §73 of the Retirement and Social Security Law.(8)
§73 grants eligibility for certain benefits to members of the Employees' Retirement System who have been discontinued from service after 20 years. A person who is laid off from service while a member "through no fault or delinquency on his part, may elect to receive his accumulated contributions or a retirement allowance...." §73.a deals with persons who last became members of the System before April 8, 1943; §73.b provides for those who last became members on or after that date. The section sets out the formula to be used in determining the member's retirement allowance in the event he or she elects to receive a retirement allowance under those circumstances. However, typically the retirement allowances available under §73 are significantly less than those that would be payable upon retirement for "superannuation."
Preferred Lists
The “fall-out” of a layoff is the preferred list. Errors in the creation and use of preferred lists could be as expensive to the employer as errors in determinations concerning the individuals laid off following the abolishment of positions.
This is further complicated by the fact that a preferred list is a “moving target.” If, for example, an individual is first on a preferred list, he or she may later be displaced as “number 1” by an individual in the layoff unit having greater seniority but subsequently laid off. Further, an individual is entitled to remain on a preferred list for the statutory period authorized by law, measured from the date on which he or she was laid off and placed on the preferred list.
Some key points concerning the use of preferred lists:
1. Typically the most senior individual on the list may be "passed over" or, under certain circumstances, have his or her name removed from the list, only if he or she actually declines the offer of an appointment.
2. The name of an individual may not be removed from a preferred list if he or she merely declines appointment to a different position for which certification of the preferred list was not mandated or deemed appropriate or accepts an appointment to a lower grade position.
With respect to accepting an appointment to a lower grade position, if an individual is laid off from Position A and subsequently accepts a position "to a lower rank position" for which the preferred list was certified his or her name remains on the preferred list. If the employer subsequently reestablishes Position A and that the individual is eligible for certification from the preferred list and t he or she is the most senior person on the list, he or she must be appointed to the newly created position or the position must remain vacant.
3. The individual is not required to seek information concerning the existence of any vacancy for which he or she could be certified.
4. While an appointing authority is not required to fill a vacant position, if it elects to do so, it must use the appropriate preferred list if one exists.(9)
5. If an individual accepts other employment, his or her name is to remain on the preferred list until it may otherwise be lawfully removed.
Other considerations
Another element that must be considered is the possible existence of a special eligible list or a "military reemployment list” authorized by the State’s Military Law as it is possible that some State and municipal employees who have been ordered to military duty may be laid off as a result of the abolishment of positions. In such cases the provisions of §243.11 of the State's Military Law may be applicable.(10)
§243.11 provides that if a position occupied by a public employee is abolished prior to the termination of his or her military service, the name of that individual is to be placed on a preferred list. Persons in the competitive class are to have their names placed on preferred lists pursuant to §81 of the Civil Service Law; other individuals may be entitled to preferred list rights under other provisions set out in the Civil Service Law or the Education Law.
Persons not covered by the provisions of §243.11 may be entitled to have their names placed on a "military reemployment list" pursuant to §243.12 of the Military Law.
In addition to these benefits, a person ordered to military duty whose name is on an eligible list retains his or her rights and status on such list. If the name of such a person becomes reachable for certification while on military duty, he or she may request that their name be placed on a "special eligible list." This request must be made following the termination of military service and during the period of the employee's eligibility on such list. Names are kept on the “special list” for two years following the individual's termination of military duty [see §243.7, Military Law].
§243 provides other special benefits to those called to military duty such as crediting such service for the purposes of probation [see §243.9 and §243.9-a], special consideration in cases of disability and age [see §243.10 and §243.10-a] and appointment to a vacancy while on the individual is on active military duty [see §243.6]. Still other rights available to employees returning to work following military duty are listed in §§243.5 and 243.8.
ENDNOTES
(1) Employee improperly laid off due to error in determining her seniority entitled to back pay without any deduction for amounts she might have earned prior to being reinstated to her position. Civil Service Employees Ass'n, Inc., Local 1000, AFSCME, AFL-CIO v. Brookhaven-Comsewogue Union Free School Dist., 87 N.Y.2d 868.
(2) With respect to those situations where there are no statutory or contractual requirements concerning layoff applicable to incumbents of positions to be abolished, the appointing authority should consider adopting guidelines that will survive a challenge that the designation of the individual or individuals to be laid off was arbitrary or capricious.
(3) The Classified Service consists of four jurisdictional classes: the Competitive Class, the Non-competitive Class; the Exempt Class and the Labor Class.
(4) N.B. Employees in the Labor Class are not within the ambit of either §80 or §80-a of the Civil Service Law [which sections of law provide certain rights to employees in the competitive and non-competitive classes in the event of a layoff] but employees in the Labor Class may be accorded layoff rights based on “seniority” pursuant to a Taylor Law agreement provided that any such contract right does not adversely affect the statutory layoff rights of other employees [see City of Plattsburgh v Local 788, 108 AD2d 1045].
(5) In some instances an individual may be employed pursuant to a “contract of employment” having a fixed duration or his or her continuation in employment may be subject to the appointing authority receiving “grant” or similar funding from an outside source. Such employees typically to not enjoy tenure in such a position but may be on leave from a position in which they hold “tenure.” Such tenure status in a position from which the officer or employee is on leave is another element that must be considered by the appointing authority in layoff situations.
(6) In some instances a civil service commission may approve the reinstatement of an individual who was not reinstated or reappointed within one year of the effective date of his or her resignation.
(7) §242.4 of the State’s Military Law provides certain rights that could be relevant in a layoff situation. Time during which a public officer or employee is absent for military duty pursuant to §242, subdivisions two, three and three-a of the State’s Military Law is not an interruption of continuous employment and, “ notwithstanding the provisions of any general, special or local law or the provisions of any city charter, no such officer or employee shall be subjected, directly or indirectly, to any loss or diminution of time service, increment, vacation or holiday privileges, or any other right or privilege, by reason of such absence, or be prejudiced, by reason of such absence, with reference to continuance in office or employment, reappointment to office, re-employment, reinstatement, transfer or promotion.”
(8) Spano v Kings Park Cent. School Dist., 61 A.D.3d 666, is a case demonstrating some “unintended consequences” of electing to take a retirement incentive. [see http://www.courts.state.ny.us/reporter/3dseries/2009/2009_02771.htm]
(9) Under certain circumstances, a public employer may be required to use other types of "preferred lists" such as a "special military list" before the “regular” preferred list.
(10) Public employees who volunteered for such military service are deemed to have been "ordered to military duty" for the purposes of §243 of the Military Law.
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The Layoff, Preferred List and Reinstatement Manual
A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html
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