Eligibility of employee for unemployment insurance benefits following resignation

Eligibility of employee for unemployment insurance benefits following resignation
De Benedetto v Brookhaven, Appellate Division, 244 AD2d 740

Is an employee who agrees to resign rather than face disciplinary charges entitled to unemployment insurance benefits? As indicated by the De Benedetto decision by the Appellate Division, it depends on the circumstances.

Town of Brookhaven sanitation inspector Frank De Benedetto was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. The matter was "settled" when the De Benedetto agreed to resign and the Town agreed to withdraw the charges and to advise any prospective employers that he had "resigned for personal reasons." Although De Benedetto's application for unemployment insurance benefits initially was denied because "he had voluntarily left his employment without good cause," the Unemployment Insurance Appeals Board reversed, remanding the issue to the local office. The Board said that the question to be resolved was whether or not De Benedetto should be disqualified "because of misconduct."

The Appellate Division affirmed the Board's determination, holding that "there is precedent that a claimant who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct." The Court cited La Rocca v New York City Department of Transportation, 59 NY2d 683, in support of its ruling.
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Union dues a factor in a divorce proceeding

Union dues a factor in a divorce proceeding
Elizabeth A. v Hector S., NYS Supreme Court, Judge Bednar, [Not selected for publication in the Official Reports]

Would you think that union dues could be a factor in a divorce proceeding? It was in the case of Elizabeth A. v Hector S.

Hector was told that he had to pay $157.00 bi-weekly as child support. He objected, contending that the hearing examiner had miscalculated his adjusted gross income by neglecting to deduct his union dues from his gross income.

Judge Bednar ruled the hearing officer's calculations were correct. While the federal Internal Revenue Code allows a taxpayer to deduct union dues as a "miscellaneous itemized deduction," the Family Court Act [FCA] does not. Although FCA allows a limited number of exclusions from income when determining child support, union dues is not one of the enumerated deductions allowed by the Act in determining a parent's child support obligations.
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What is the result of an employee’s failure or refusal to file an answer to Section 75 disciplinary charges

What is the result of an employee’s failure or refusal to file an answer to Section 75 disciplinary charges
Response to an inquiry from a NYPPL reader

A NYPPL reader asks: If an individual served with disciplinary charges pursuant to Section 75 of the Civil Service does not file an answer to the charges and specifications, may the appointing authority impose the proposed penalty without holding a disciplinary hearing?

Although it appears that this specific question has yet to be litigated, a close reading of Section 75 suggests such an action by an employer would not survive judicial scrutiny.

Section 75 requires the appointing officer to allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing.

In contrast, Section 75 is silent with respect to requiring the employee submit any answer to the charges.

This suggests that the individual may remain mute without jeopardizing his or her Section 75 rights.

Indeed, should the accused individual attend the disciplinary hearing and remain mute and present no defense, the employer would still be required to "prove" the alleged misconduct or incompetency.

Clearly, Section 75 provides that the burden of proving incompetency or misconduct ... (is) upon the person alleging the same. In other words, the failure of an employee to offer a defense does not absolve the employer of the duty to prove incompetence or misconduct before imposing disciplinary sanctions.

Indeed, it is well settled that in the event the employee fails to appear at the disciplinary hearing, the charging party must proceed and actually hold the hearing in absentia rather than merely proceed with the imposition of a penalty on the individual on the basis of his or her failure to appear at the hearing as scheduled.

Given that the courts require employers to conduct a disciplinary hearing being conducted pursuant to Civil Service Law Section 75 even if an employee fails to appear at the proceeding, it seems unlikely that the courts would approve imposing a penalty on an individual because he or she failed to answer the disciplinary charges filed by the appointing authority.

Moreover, under Section 75 the employee need not ask for a hearing; it is to be provided as a matter of right.

In contrast, Section 3020-a of the Education Law, the statutory equivalent of Section 75 for teachers and school administrators, requires that the individual affirmatively act and request a disciplinary hearing.

Under Section 3020-a, not only is the accused individual required to tell to the employer whether or not he or she wishes to have a disciplinary hearing scheduled, "the unexcused failure of the employee to notify the [district's] clerk or secretary of his or her desire for a hearing ... shall be deemed a waiver of the right to a hearing ...."

Section 3020-a also provides that in the event the teacher or school administrator does not ask for a Section 3020-a hearing, by design or otherwise, the school board is to determine the case and fix the penalty in accordance with Section 3020-a.4 of the Education Law.

The Section 3020-a model is followed in most alternative disciplinary procedures negotiated pursuant to the Taylor Law. If the employee does not file a timely disciplinary grievance, the appointing authority usually is authorized to impose the penalty proposed in the notice of discipline served on the individual without further action on its part and without referring the issue to arbitration.

What would be the result should the charging party not participate in an administrative proceeding? The decision in Armata and United Federation of Teachers, 30 PERB 4713, is instructive in this regard.

Rebeca Armata elected not to attend the scheduled PERB hearing. The PERB hearing officer dismissed her complaint on the ground that she had failed to prosecute it.

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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/

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Collecting a paycheck could be a work related activity

Collecting a paycheck could be a work related activity
Dandola v Workers' Compensation Board, App Div, 244 AD2d 729

William Dandola, a New York City Corrections Officer, slipped and fell, injuring his knee. According to the decision, Dandola fell in front of the Rikers Island correction facility while running to pick up his paycheck on his day off. Did Dandola suffer a work related injury entitling him to workers' compensation benefits? Yes, said the Workers' Compensation Appeals Board in a decision affirmed by the Appellate Division.

Although the City Department of Correction argued that Dandola's injury occurred while he was engaged in "an essentially personal errand on his day off," the Appellate Division said that it has been held that "an employee may be within the scope of employment when collecting his or her pay check while off duty." In this instance, the Court decided that Dandola was injured in the course of his employment.

Why? Because, the Court explained, Correction's "paycheck distribution procedures" indicate that although arrangements to mail an employee's paycheck to his or her residence can be made, the expected procedure is for employees to pick up their paycheck in person. According, said the Court, the Appeals Board's holding that Dandola's injury arose out of and in the course of his employment is supported by substantial evidence.
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Acquisition of a private entity by a public employer

Acquisition of a private entity by a public employer
Neron v NYC Health and Hospitals Corp., Supreme Court [Not selected for publication in the Official Reports]

In January 1998, New York State Supreme Court Justice Shainswit considered a personnel issue that is rarely litigated -- the status of individuals who work for a private employer having a contract with a public entity to provide certain services and later become employees of that public entity.

About 125 hospital technicians working at the New York City's Jacobi Medical Center, a municipal hospital, sued their employer, the New York City Health and Hospitals Corporation (HHC), claiming that they were entitled to (1) permanent competitive status without first having to take and pass a competitive examination for their respective positions and (2) seniority "theretofore held by them as among themselves." The technicians argued that HHC's failure to provide for this was arbitrary, capricious, and an abuse of discretion, citing Section 7390 of the Unconsolidated Laws and Section 45 of the Civil Service Law as authority for this claim. As to the events leading to this lawsuit:

1. Initially HHC entered into an "Affiliation Agreement" with Albert Einstein College of Medicine under which Einstein supplied Jacobi with doctors and non-physician technical personnel.

2. In November 1991, Coney Island Medical Group ("CIMG") assumed the Einstein/Jacobi affiliation agreement and became the employer of Jacobi's non-physician technical staff under a Jacobi-CIMG affiliation agreement.

3. In September 1996, the Jacobi-CIMG affiliation agreement expired and HHC offered "civil service employment" to all non-physician technical staff who had been employed under the now expired affiliation agreement.

This resulted in HHC provisionally appointing about 106 individuals previously serving under the Jacobi-CIMG agreement to positions in the competitive class; the remaining individuals were placed in exempt class or non-competitive class positions.

The technicians pointed to Unconsolidated Laws Section 7390.2, which in relevant part provides that "employees of the voluntary hospitals and medical schools be continued in the employment of HHC without competitive examination, and shall be afforded permanent competitive status." They also claim that HHC violated Section 45.1 of the Civil Service Law, which deals with the takeover of a private employer by a public employer.

HHC, on the other hand, urged the Court to rule that Section 7390, enacted in 1973, did not require it to grant the 106 technicians permanent competitive status without such individuals first taking and passing a competitive examination because Section 7390 was intended to have limited application as it related to a specific, immediate, but [then] temporary concern. The Corporation also argued Section 45 was inapplicable because there was no acquisition of a private institution by a government agency.

The Court rejected HHC's contention that Section 7390 did not apply in this instance, finding that "it expressly applies to situations where HHC assumes the employment of individuals who previously provided medical services for HHC as employees of the voluntary hospitals and medical schools in the municipal hospitals of the City of New York." The Court noted that nothing in Section 7390 indicates that it was intended to apply only to the situation faced by HHC in 1973 and ceased to be in force thereafter.

Justice Shainswit explained his ruling by indicating that "to require that competitive examinations be given to any of the former employees of the voluntary hospitals and medical schools now performing such services would seriously interrupt the administration of health and medical services necessary for the general welfare of the people of the City and would thus be impracticable."

HHC, however, fared better with its arguments concerning the applicability of Section 45 in this situation. Why? Because, as the Court noted, there was no showing that functions in contrast to the mere assumption of employees' services, was involved and thus there was no acquisition of a private entity within the meaning of Section 45.

The bottom line: HHC was ordered to give permanent competitive appointments without competitive examination to the 106 technicians qualified for such an appointment.

"Contracting-out" for services may have unanticipated consequences. For example, EEOC, reacting to the increase in the use of a "contingent workforce," including temporary and contract employees, by employers, has concluded that "if both the staffing firm and its client have the right to control the worker, both can be liable for civil rights violations."
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Second Circuit Court of Appeals explains why ADEA, Title VII, Equal Protection, LMRA and ERISA claims against the City had to be dismissed

Second Circuit Court of Appeals explains why ADEA, Title VII, Equal Protection, LMRA and ERISA claims against the City had to be dismissed
Vandermark v City of N.Y., 09-4746-cv (2nd Cir. 9-7-2010) [Summary Order*]

Marshall Vandermark was the lead plaintiff when a number of Environmental Police Officers (EPOs) employed by the City of New York sued the City alleging that the City had violated various state and federal laws with respect to their compensation and fringe benefits.

The district court dismissed the federal claims for failure to state a cause of action and declined to exercise supplemental jurisdiction over Vandermark's State Law claims.

Vandermark had filed the lawsuit claiming violations of the Fair Labor Standards Act (FLSA), the Age Discrimination in Employment Act (ADEA), the Labor Management Relations Act (LMRA), the Employee Retirement Income Security Act (ERISA), and Title VII of the Civil Rights Act as well as alleged violations of 42 U.S.C. §§ 1983 and 1985 [equal protection].

The Circuit Court affirmed the district court’s dismissal of Vandermark’s ADEA, Title VII, Equal Protection, and LMRA and ERISA claims.

The court explained that:

1. To establish their Title VII claim, a plaintiff would need to show employment discrimination on the basis of "race, color, religion, sex, or national origin" [see 42 U.S.C. § 2000e-2(a)(1)] but Vandermark alleged no such nexus.

2. To establish their ADEA claim, a plaintiff would need to show employment discrimination on the basis of age [see 29 U.S.C. § 623(a)(1)]. However, Vandermark complained of “unequal retirement benefits.” Such allegations do not encompass allegations of age discrimination said the court.

3. To establish §§ 1983 and 1985 equal protection claims, a plaintiff would need to show that there is no "reasonably conceivable state of facts that could provide a rational basis for the classification." The Circuit Court agreed with the district court's observation that "[t]here are numerous reasonable bases on which the City of New York might decide that NYPD officers and EPOs should receive different compensation and benefits, including the danger associated with the positions, the physical strain of the job, and the cost of living in the areas in which NYPD officers and EPOs work."

In addition, the court noted that neither the LMRA nor ERISA applies to political subdivisions of a State [see 29 U.S.C. § 152(2) (LMRA) and 29 U.S.C. §§ 1002(32), 1003(b) (ERISA)] and said that “It is clear to us . . . that the New York City Department of Health and Mental Hygiene is a `political subdivision' of New York that is exempt under [the statutes relied upon by Vandermark] ….”

As to Vandermark’s FLSA claim, the Circuit Court said that the district court “correctly applied the §207(k) exemption, [see 29 U.S.C. § 207(k)] as it was undisputed that EPOs [1] are "empowered . . .to enforce laws . . ., and to prevent and detect crimes"; [2] "ha[ve] the power to arrest"; and [3] "undergo on-the-job training and/or a course of instruction and study which typically includes physical training, self-defense, firearm proficiency, criminal and civil law principles, investigative and law enforcement techniques, community relations, medical aid and ethics," citing 29 C.F.R. § 553.211(a).

Finding no merit in Vandermark remaining arguments, the Circuit Court affirmed the district court's decision and dismissed his appeal.

* N.B. - Rulings by summary order do not have precedential effect.

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/4fc3c6a5-efbc-477d-b73e-8f0379076b75/27/doc/09-4746_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/4fc3c6a5-efbc-477d-b73e-8f0379076b75/27/hilite/
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Answering the questions asked by an investigator

Answering the questions asked by an investigator
Chance v Erickson, US Supreme Court, 522 U.S. 262

The U.S. Supreme Court has ruled that federal employees being investigated in connection with alleged employment-related misconduct who knowingly give false answers to the investigators may be given stiffer penalties than might otherwise be imposed on them for the underlying misconduct.

The Court said that an individual may decline to answer the question, or answer it honestly, but he [or she] cannot with impunity knowingly and willfully answer with a falsehood.

It is expected that other courts will follow the Supreme Court's rationale in cases involving efforts by state and municipal employers to impose additional sanctions on public employees who make false statements to persons conducting internal investigations of alleged wrongdoing by public workers.

The Chance decision concerned efforts by federal appointing authorities to increase the punishment imposed for misconduct in situations in which federal workers were found to have deliberately falsified responses to questions in the course of an internal investigation. Those investigations led to the filing of disciplinary charges against the individual under investigation.

The right to employee representation during questioning was not an issue in Chance. However, it should be noted that Section 75.2 of the Civil Service Law provides that an employee who at the time of questioning appears to be a potential subject of disciplinary action must be advised, in writing, that he or she has the right to have a representative present during the questioning. Disciplinary procedures negotiated under the Taylor Law frequently provide for employee representation during the investigatory phase of the procedure.

The Supreme Court overturned decisions by various appellate courts that upheld Federal Merit System Protection Board rulings that barred the imposition of extra punishment on employees who made false statements in the course of an internal departmental investigation of alleged misconduct by the employees.

The Board had reduced the harsher penalties by forcing federal employers to:

1. Issue a letter of reprimand instead of imposing demotions and 30-day suspensions on two individuals for working on non-government activities on government time.

2. Suspend a male supervisor for 14 days instead of demoting him for making inappropriate remarks to a female subordinate.

3. Suspend an individual for 15 days instead of dismissing the employee for motivating another individual to make harassing telephone calls to a third person.

4. Suspend an employee for 45 days instead of dismissing the individual for misuse of an agency credit card

5. Suspend a health employee for 90 days instead of instead of dismissing him for having had sex with a patient.

The Court commented that the fact that the false statements were not made under oath made no difference. Being charged and found guilty of making false statements in the course of an agency's investigation does not require that the employee make the false statements while under oath.

What about a situation where a truthful answer could expose the employee to criminal prosecution? If, said the Court, answering an agency's investigatory question could expose an employee to a criminal prosecution, he or she may exercise his or her Fifth Amendment right to remain silent -- but may not provide falsehoods in response to the question without being vulnerable to being disciplined for making such false statements.

As to the employee's refusal to answer, the decision notes that it may well be that an agency, in ascertaining the truth or falsity of the charge, would take into consideration the failure of the employee to respond ... there is nothing inherently irrational about such an investigative posture. The Court cited Baxter v. Palmigiano, 425 U.S. 308, which discusses the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify.

For these reasons, said the Court we hold that a government agency may take adverse action against an employee because the employee made false statements in response to an underlying charge of misconduct.

In another case, Brogan v United States, 522 U.S. 398, the Supreme Court, by a 7-2 vote, upheld the conviction of a former union officer who answered no to a question asked by investigators concerning illegal payments he was allegedly paid. This untrue response was the basis for his being convicted of a federal law that made any false, fictitious or fraudulent statements or representations to the federal government a felony, even if the statement was not made under oath. The Court said that the Fifth Amendment privilege against self-incrimination does not prevent the government from prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries by claiming the protection of the Fifth Amendment.

The test of the Chance decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/falsely-answering-investigators.html
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Appealing a Disciplinary Action

Appealing a Disciplinary Action
Podszus v Mt. Vernon, App Div, 246 AD2d 548

The Podszus case demonstrates the importance of selecting the correct forum to hear an appeal.

The Commissioner of Public Safety found William Podszus, a City of Mount Vernon police officer, guilty of charges of insubordination and malicious gossip and imposed as the penalty of the forfeiture of 10 days of pay. Podszus filed an Article 78 action in State Supreme Court challenging both the evidentiary basis for the Commissioner's determination and the penalty imposed. This proved to be the wrong court for such an appeal.

The Appellate Division said that Section 120 of the City's Charter provided that the exclusive vehicle for a police officer seeking review of a determination of the Commissioner is a direct appeal to the Appellate Division within 30 days following the Commissioner's decision.

Accordingly, the Court dismissed the appeal as the Supreme Court did not have subject matter jurisdiction to consider Podszus' petition nor authority to transfer it to the Appellate Division.

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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/

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Determinng Claims for accidental disability retirement benefits based on GML Section 207-kk, the so-called "Cancer Bill"

Determinng Claims for accidental disability retirement benefits based on GML Section 207-kk, the so-called "Cancer Bill"
Kopetz v Article 1-B Pension Fund, 255 A.D.2d 443

The so-called Cancer Bill, General Municipal Law Section 207-kk, provides eligibility for accidental disability retirement under certain conditions.

Frederick Kopetz, a former New York City firefighter, challenged a determination by his pension fund rejecting his application for an accidental disability retirement allowance. Kopetz's claim was based on his having had cancer and undergoing a nephrectomy for removal of the right kidney.

Kopetz had returned to full duty, and had been cancer-free since the surgery. He was placed on light duty because of other medical conditions. Eventually the Medical Board of the New York City Fire Department Article 1-B Pension Fund concluded that he was not capable of full duty and recommended that he be retired on ordinary disability.

The Board of Trustees of the pension fund concurred. It observed that Kopetz's own physicians indicated that his disability was caused by hypertension and cerebrovascular insufficiency. Because his disability was not result of cancer or any line-of-duty injury, the board concluded that he was not entitled to benefits under the cancer bill.

Kopetz objected, contending that he should be retired on accidental disability retirement on the theory that he was entitled to an ADR because he once had cancer.

He contended that the law granted accidental disability retirement benefits to qualified persons who suffer:

... any condition of impairment of health caused by (i) any condition of cancer affecting the lymphatic, digestive, hematological, urinary or prostate systems or (ii) melanoma resulting in total or partial disability or death to a paid member of a fire department in a city with a population of one million or more [i.e., the City of New York], who successfully passed a physical examination on entry into the service of such department, which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty unless the contrary be proved by competent evidence.

New York State Supreme Court Justice Vaughan dismissed Kopetz's petition. The court commenting that Kopetz, who bore the burden of proof, had not met his burden. A court cannot disturb an administrative determination unless it finds that the determination is arbitrary or capricious or erroneous as a matter of law. Justice Vaughn said there was no basis for such a determination in this case.
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Retirees’ rights to health insurance benefits

Retirees’ rights to health insurance benefits
Prater v Ohio Education Assoc. CA6, Docket #06-4393

Retired employees of Education Association sued, contending that the Association had improperly terminated their health benefits that had been provided in accordance with the terms of a series of collective bargaining agreements.

The Circuit Court ruled that descriptions of health insurance benefits prepared by the Association cannot supersede the provisions set out in a collective bargaining agreement.

The full text of the decision is posted at:

http://www.ca6.uscourts.gov/opinions.pdf/07a0405p-06.pdf
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