June 24, 2020

Determining if a work assignment constitutes out-of-title work prohibited by Civil Service Law §61(2)

Typically an out-of-title work assignment exists when an employee has been assigned or compelled to perform the duties of a higher grade position "without a concomitant increase in pay, frequently, recurrently and for long periods of time."* 

Supreme Court dismissed the New York Public Employees Federation's [PEF] Article 78 petition alleging that certain parole officers and senior parole officers  [Petitioners] represented by PEF assigned to the Nassau County Parole Office were required to perform out-of-title work. PEF appealed the ruling.


The Appellate Division sustained the lower court's ruling, explaining that out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law §61(2) and, as here, by the relevant collective bargaining agreement. 

Citing New York State Corr. Officers and Police Benevolent Assn., Inc. v Governor's Off. of Empl. Relations, 105 AD3d 1192,** the Appellate Division pointed out that not all additional duties constitute out-of-title work. The dispositive question is whether "the new duties are appropriate to [the employee's] title and/or are similar in nature to, or a reasonable outgrowth of, the duties listed in [the employee's] job specifications."

In other words, the fact that an employee is not performing certain duties set out in the job description, assigning the individual to perform such duties does not constitute the performance of of out-of-title work.


Here, said the court, the record establishes that, on a limited and temporary basis,*** the individual Petitioners were, from time to time, assigned to perform certain building security functions, such as searching incoming persons, operating the magnetometer and securing the waiting room and area office. 

Although such duties were routinely assigned to institutional safety officers, the Governor's Office of Employee Relations [GOER] determined, upon a review of the relevant classification standards, that the duties could be appropriately performed by properly classified parole officers and senior parole officers and, thus, that the assignments were not out-of-title. 

In reviewing GOER's determination, the Appellate Division opined that its review was limited to assessing whether the record as a whole provides a rational basis for  GOER's determination and the administrative decision would not be disturb it unless it is wholly arbitrary or lacking a rational basis.



As noted in the relevant job descriptions, parole officers and senior parole officers are sworn peace officers under the Criminal Procedure Law, which empowers them to, among other things, perform warrantless searches and arrests, use physical force in making an arrest or preventing an escape and take custody and possession of firearms not owned by peace officers for lawful purposes. Further, the classification standards for these positions set forth that, among other responsibilities, parole officers and senior parole officers are required to perform law enforcement functions, carry firearms, pass firearms qualification testing and participate in mandatory deadly physical force and tactical training. 

Given the training and qualifications possessed by parole officers and senior parole officers, as well as the similarities between the grieved duties and those enumerated in the applicable classification standards, the Appellate Division said that it found a rational basis exists to support GOER's determination that the assigned duties did not constitute out-of-title work.

Thus, opined the Appellate Division, as there is no basis to disturb GOER's denial of the grievances and sustained Supreme Court's dismissal of PEF's Article 78 petition.



* Under the applicable collective bargaining agreement, out-of-title assignments below an employee's salary grade do not entitle that employee to monetary compensation. Rather, in such circumstances, the employee is entitled to a declaration that the duties were out-of-title and to a discontinuance of the out-of-title assignments (see Matter of Hightower v New York State Div. for Youth, 195 AD2d 913, leave t0 appeal denied 82 NY2d 660 [1993]).

** See http://www.nycourts.gov/reporter/3dseries/2013/2013_02445.htm



*** The grievance forms indicated that, following the retirement of an institutional safety officer, the individual Petitioners were assigned to cover shifts routinely performed by the institutional safety officer in the range of two to five dates in July 2016, with hours of coverage ranging from 5.5 to 19.5 hours in total.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_03052.htm


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