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Jun 5, 2026

Appellate Division sustains employee's appeal of the employer's denial of the employee's out-of-title work grievance

Plaintiff in this appeal to the Appellate Division was employed as a Supervising Support Investigator, Salary G-15 by the County's Department of Social Services [DSS]

Plaintiff filed a grievance pursuant to the relevant collective bargaining agreement between the County and the Plaintiff's Union alleging that Plaintiff began performing out-of-title work following the resignation of the supervisor of the DDS' child support unit then serving in the title of Supervisor of Investigations and Support [Salary Grade-20]. Plaintiff contended that she commenced supervising the entire DSS child support unit but served in the title of, and was being paid as, a Support Collection Supervisor [Salary Grade-18]. Her grievance was denied and the Union demanded the matter be submitted to arbitration. The arbitrator ultimately ruled in favor of the County. 

Plaintiff then initiated the instant CPLR Article 78 proceeding, contending that DSS violated Civil Service Law §61(2) by assigning her to perform out-of-title work without providing her with the appropriate compensation for her services.

The Appellate Division explained that "Out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law §61(2)", noting that "[it] is well settled that an out-of-title work assignment exists when an employee has been assigned or compelled to perform the duties of a higher grade, without a concomitant increase in pay, frequently recurrently and for long periods of time, unrelated to any temporary emergency requirement", citing a number of relevant New York State Court to that effect in its decision.*

In the words of the Appellate Division, "It was undisputed that Petitioner was tasked with the supervision of DSS's entire child support unit during the relevant time period". The Appellate Division said that the question before it "distills to whether a rational basis supports finding that such a supervisory role fell within the duties of [Plaintiff's] job title".

The Appellate Division said that the record in the instant matter indicated that the County Civil Service Commission [Commission] had informed DSS that a determination concerning its request for the reclassification of the Supervising Support Investigator position had been made but the job description for the position set out in the County's MSD-222 form submitted by DSS to the Commission as part of its application for reclassification of the position "was not adopted by the Commission". Instead, the position's duty specifications submitted by DSS were revised by the Commission.**

The Appellate Division concluded that DSS' reliance on the job description in its MSD-222 form submitted to the Commission was misplaced and "merely reflects DSS' unsuccessful effort to include a general supervisory duty as part of the reclassification of the grade 15 title". 

Accordingly, the Appellate Division held that DSS' determination that Plaintiff's supervision of DSS's entire child support unit fell within her job title specifications and thus did not constitute assigned out-of-title work was "without a rational basis and must be reversed".

The Appellate Division then remitted the matter to DSS for further proceedings "not  inconsistent" with the Court's decision.

* The Appellate Division also noted that "[n]ot all additional duties constitute out-of-title work but, instead, the question is whether the new duties are appropriate to [the individual] petitioners' titles and/or are similar in nature to, or a reasonable outgrowth of, the duties listed in [the individual] petitioners' job specifications" and the Court's review of an out-of-title work grievance is limited to "whether the record as a whole provides a rational basis for the underlying determination, which will not be disturbed absent a showing that it is wholly arbitrary or without any rational basis".

** The Appellate Division opined that, when applying for employment in a job title, "an applicant relies upon the published job description and not the employer's application underlying the creation or reclassification of that title. To be sure, the applicant may not be aware of or, for that matter, have access to that application short of making a request pursuant to the Freedom of Information Law".

Click HERE to access the Appellate Division's decision posted on the Internet.


Editor in Chief Harvey Randall served as Director of Personnel, State University of New York Central Administration; Director of Research, Governor's Office of Employee Relations; Principal Attorney, Counsel's Office, New York State Department of Civil Service; and Colonel, JAG, Command Headquarters, 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.

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