ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

July 09, 2020

Article 23-A of New York State's Correction Law does not control if an employee is terminated for a criminal offense committed after the individual was hired

Article 23-A of New York State's Correction Law provides that "no employment ... held by an individual ... shall be ... acted upon adversely by reason of the individual's having been previously convicted of one or more criminal offenses"* where the conviction "preceded such employment."**

Local 100, Transport Workers Union of America brought an action pursuant to CPLR Article 75 seeking to vacate an arbitration award that terminated a New York City Transit Authority [Authority] employee [Plaintiff***] and for a court order reinstating Plaintiff to his former position with full back pay and awarding Plaintiff costs and attorney's fees. Supreme Court denied Plaintiff's petition and dismissed the proceeding. Plaintiff appealed the court's decision.

The Appellate Division sustained the Supreme Court determination explaining:

1. Plaintiff's termination by the Authority was based on conduct that, if proven in court, would have constituted a felony and was not against public policy;

2. Although Correction Law Article 23-A provides, in pertinent part, that "no employment ... held by an individual  ... shall be ... acted upon adversely by reason of the individual's having been previously convicted of one or more criminal offenses" where the conviction "preceded such employment," in this instance Plaintiff's conviction did not precede his employment but occurred following his employment and was, therefore, not within the ambit of Article 23-A.

Addressing Plaintiff's request for reinstatement, the court held that denial of the request was not arbitrary and capricious as the governing regulations provide that an agency "may consider such application" but is not required to do so, and  approval of such an application is made at the discretion of the appointing authority.

Citing 55 RCNY Appendix A §6.2.6[a]-[b], the Appellate Division opined that "[i]t was not irrational for [the Authority] to conclude that in seeking reinstatement, [Plaintiff] merely sought to relitigate issues" earlier considered and decided by a neutral arbitrator in the course of a "grievance proceeding pursuant to a collective bargaining agreement" that resulted in Plaintiff's termination by the Authority.

* Correction Law §752, Unfair discrimination against persons previously convicted of one or more criminal offenses prohibited.

** Correction Law §751 applies to any person seeking a license or employment at any public or private employer who has previously been convicted of one or more criminal offenses in New York State or in any other jurisdiction.

*** Plaintiff was initially employed by the Authority in 2008. Ten years later Petitioner was arrested and ultimately plead guilty to a violation of 18 U.S.C. §641. His sentence: one-year probation and 80 hours of community service.

The decision is posted on the Internet at:

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com