Unemployment insurance benefits claimant’s showing of “good cause” for failing to comply with registration requirements requires granting of her application for benefits

Unemployment insurance benefits claimant’s showing of “good cause” for failing to comply with registration requirements requires granting of her application for benefits

2014 NY Slip Op 00270, Appellate Division, Third Department

The Unemployment Insurance Appeal Board ruled that a teacher [Claimant] was ineligible to receive unemployment insurance benefits because she failed to comply with registration requirements.

Claimant served as a part-time public school teacher. Believing that she would be rehired during the following school year in the same capacity or as a substitute teacher, she did not file a claim for unemployment insurance benefits during the intervening summer.

When Claimant was not rehired and was unable to work as a substitute, she filed a claim for unemployment insurance benefits. Her claim was ultimately considered by the Unemployment Insurance Appeals Board and denied on the ground that she failed to comply with the applicable registration requirements.

Acknowledging that “it is well settled that registering and certifying for benefits in accordance with the requirements of the Labor Law and applicable regulations is a prerequisite to eligibility, the Appellate Division noted that  … “the failure to comply with such requirements may be excused for good cause shown,” which is a factual issue for the Board to resolve.

Here, however, Claimant testified that she failed to register because her employer gave her a reasonable assurance that her employment would be continued during the 2012-1013 school year and, therefore, she did not think that she was eligible for benefits. Indeed, Claimant indicated that she previously had applied for benefits under similar circumstances and her claim was denied upon the basis that she had been given a reasonable assurance of continued employment.*

Claimant also testified that she did not file the claim at issue until it became clear that she would not be rehired as a regular part-time teacher and that she could not be retained as a substitute due to licensing problems. Notably, said the court, no evidence was introduced to contradict Claimant’s testimony.

The Appellate Division, noting that the unemployment insurance handbook instructed Claimant otherwise, said that such instruction was understandably confusing in light of Claimant's past experience.

Accordingly, the court ruled that “under the particular circumstances presented, we find that the Board's decision is not supported by substantial evidence given that [Claimant] demonstrated good cause for her failure to comply with the registration requirements.”

* A temporary teacher’s eligibility for unemployment insurance benefits upon termination of his or her temporary employment depends on whether or not he or she has been given “a reasonable assurance of continued employment” within the meaning of Section 590.10 of the Labor Law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00270.htm
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The four-month statute of limitations set out in Article 78 of the Civil Practice Law and Rules applies when challenging a pubic retirement system’s administrative decision

The four-month statute of limitations set out in Article 78 of the Civil Practice Law and Rules applies when challenging a pubic retirement system’s administrative decision
2013 NY Slip Op 08026, Appellate Division, First Department

The contingent beneficiary [Petitioner] of a member of the New York City Teachers’ Retirement System was advised that she would not receive benefits under the deceased member's qualified pension plan (QPP) because he died prior to his date of retirement and thus the deceased member’s designated in-service beneficiary was entitled to the benefits.

Petitioner then filed an Article 78 petition challenging the Retirement System’s decision, seeking a judgment that she was entitled to either a determination of her rights as contingent beneficiary under the decedent’s qualified pension plan (QPP) or an order   directing the System to pay her benefits as a contingent beneficiary of the deceased member’s QPP.

Supreme Court dismissed her petition as untimely, finding that Petitioner failed to file a proceeding to challenge that determination within the requisite four-month period. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division noted that “The parties agree that the four month statute of limitations controls this action, which challenges an agency determination” and that Petitioner failed to file her action within that four-month period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08026.htm
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A public official employed in a major nontenured policymaking or advisory position is ineligible for unemployment insurance benefits based on such service

A public official employed in a major nontenured policymaking or advisory position is ineligible for unemployment insurance benefits based on such service
2014 NY Slip Op 00721, Appellate Division, Third Department

§527(1) of the Labor Law sets out the qualifications that an Unemployment Insurace claimant must satisfy in order to file a valid original claim entitling him or her to receive unemployment insurance benefits. §527(1)(d) requires that the claimant must be "paid remuneration by employers liable for contributions . . . for employment during at least two calendar quarters of the base period.

In this appeal the issue was whether an individual [Claimant] appointed to a position of Deputy Commissioner by the Governor who applied for unemployment insurance benefits after her term of office ended was “paid remuneration by employers liable for contributions.”

Initially the Department of Labor denied the claim, finding that Claimant, as a Deputy Commissioner, [1] held a major nontenured policymaking or advisory position while employed by the State, and [2] such service could not be used as base period employment for purposes of establishing a valid original claim for unemployment insurance benefits.

Although this determination was overruled by an Administrative Law Judge, ultimately the Unemployment Insurance Appeal Board sustained the initial determination and ruled that Claimant was not eligible to receive unemployment insurance benefits.

The Appellate Division affirmed the Appeal Board’s decision explaining that [1] Labor Law §527(1) sets out the qualifications that a claimant must meet in order to file a valid original claim entitling him or her to receive unemployment insurance benefits and [2] Labor Law §527[1][d] requires that the claimant must be "paid remuneration by employers liable for contributions . . . for employment during at least two calendar quarters of the base period."

The decision then points out that Labor Law §565(2)(e) provides that services rendered for a governmental entity by a person “in a major nontenured policymaking or advisory position" is not employment for the purposes of establishing eligibility for Unemployment Insurance benefits.

The issue to be resolved, said the Appellate Division, is whether the Labor Law §565(2)(e) exclusion applies with respect to Claimant employment during the applicable base period.

Finding that “… the performance standards applicable to [Claimant’s] position supported the Appeals Board’s determination that Claimant held a "major nontenured policymaking or advisory position," the Appellate Division ruled that there was a rational basis for the Board's finding that Claimant’s service during the period in question “could not be used as base period employment for purposes of establishing a valid original claim” and dismissed the appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00721.htm
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An employer's rights under Workers' Compensation Law §11 are not extinguished merely because the injured employee is an undocumented alien

An employer's rights under Workers' Compensation Law §11 are not extinguished merely because the injured employee is an undocumented alien

New York Hosp. Med. Ctr. of Queens v Microtech Contr. Corp., 2014 NY Slip Op 00897, Court of Appeals

In Balbuena v IDR Realty, LLC, 6 NY3d 338 [2006], the Court of Appeals held that an injured employee's status as an undocumented alien does not preclude his or her recovery of lost wages in a personal injury action against a landowner under the state's Labor Law.

In deciding New York Hospital Medical Center of Queens [Hospital] v Microtech Contr. Corp., the Court of Appeals held that an employer's statutory rights under the Workers' Compensation Law are not extinguished merely because the injured employee is an undocumented alien.

Hospital sued Microtech for common-law and contractual contribution and indemnification to recover any damages it had incurred in the course of litigation in which Microtech’s injured employees alleged their injuries resulted from Hospital’s alleged violations of the Labor Law.  

Supreme Court had granted the employees summary judgment on liability on their causes of action grounded in Labor Law §§240 (1) and 241 (6). Hospital's attorney said that Hospital and the employees had entered into “a high-low agreement”* at the damages trial that followed and, after the verdict, the judgment was paid in keeping with this arrangement. The hospital then sued Microtech seeking indemnification for the damages it suffered.

The Court of Appeals, affirming the Appellate Division’s decision, held that Microtech’s alleged violations of the Immigration Reform and Control Act (8 USC §1324a) claimed by the hospital did not abrogate Microtech’s protection from third-party claims available to it pursuant to §11.

In other words, the court ruled that, “under the facts and circumstances presented by this case,” an employees' immigration status does not affect his or her employer's rights under Workers' Compensation Law §11.

* A high/low agreement is “a settlement in which a defendant agrees to pay the plaintiff a minimum recovery amount in return for the plaintiff’s agreement to accept a maximum amount regardless of the outcome of the trial.” 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00897.htm
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Resolving ties in seniority in the event of a layoff

Resolving ties in seniority in the event of a layoff

Decisions of the Commissioner of Education, Decision 16,584

In this appeal concerning the appointment and preferred eligibility rights involving two teachers of Spanish the Commission reviewed the events leading to their respective appointments and determined that both teachers “had the same amount of full-time service in the foreign language tenure area.”

As to a school board’s resolving “ties” in seniority to determine which of two or more teachers were to be excessed, the Commissioner said that “the board may use an objective means to break the tie in determining seniority.”

In this instance the school board elected to determine which one of the two teachers to retain in service by considering their names in alphabetical order.

The Commissioner concluded that this method was “objective” and ruled that board’s decision to retain the teacher whose last name started with “A” rather than the teacher whose last name started with the letter “G” was not arbitrary and capricious.

Other means of breaking seniority ties in the event of a reduction of staff include: one teacher was "certified” in a second tenure area that “could be beneficial to the district in the future;" it would be "cost effective" to terminate the teacher having the higher rate of compensation consistent with the district's efforts to reduce its expenditures; the date of a school board's resolution appointing the individuals; the date of receipt of the application; the individual’s date of birth; a lottery system.

Although a collective bargaining agreement negotiated pursuant to the Taylor Law [Article 14 of the Civil Service Law] may provide for the determination of certain benefits based on seniority such as shift selection or priority in scheduling vacation,such provisions may not be used to defeat certain rights based on seniority set by law. For example, the rights of an individual in layoff situations in the classified service set out in §§80 and 80-a of the Civil Service Law are based on seniority which rights may not be adversely affected by the terms of a collective bargaining agreement [see City of Plattsburgh v Local 788, 108 AD2d 1045].

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16584.pdf

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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 is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for information about this electronic reference manual.

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An employee in a non-competitive class position designated as confidential or policy-influencing not within the ambit of Civil Service Law §75

An employee in a non-competitive class position designated as confidential or policy-influencing not within the ambit of Civil Service Law §75

2014 NY Slip Op 00659, Appellate Division, Second Department

A former employee [Petitioner] of the New York City Transit Authority [NYCTA] filed an Article 78 action challenging [1] NYCTA terminating him without a formal hearing pursuant to Civil Service Law §75 and [2] rejecting of his request for a lump sum payment for unused leave “based on his election to retire in response to an investigation into certain timekeeping violations which he subsequently was found to have committed.”

Supreme Court, Kings County dismissed the Article 78 proceeding and the Appellate Division affirmed the lower court’s ruling.

Addressing Petitioner’s claim that he was denied due process as a result of NYCTA’s failing to provide him with a pre-termination disciplinary hearing, the Appellate Division explained that NYCTA had demonstrated that Petitioner was an employee to whom the provisions of Civil Service Law §75 did not apply as he was employed in a non-competitive class position that had been designated as confidential or policy-influencing.

§75 applies to certain persons holding permanent appointment in the Classified Service and, in pertinent part, provides that a person holding a position by permanent appointment in the non-competitive class of the classified civil service in “other than a position designated in the rules of the state or municipal civil service commission as confidential or requiring the performance of functions influencing policy….” *

Turning to Petitioner’s claim that NYSTA could not deny his request for a lump sum payment without first affording him a formal disciplinary hearing pursuant to Civil Service Law §75,**the Appellate Division ruled that the Authority’s action “was not improper.”

Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division dismissed this branch of Petitioner’s appeal noting that NYCTA's determination denying Petitioner's request for a lump sum payment for his unused vacation credits was in accordance with its established policy and was neither arbitrary and capricious nor so disproportionate to the offense as to be shocking to one's sense of fairness.

* See §75.l[c]

** See 4 NYCRR 23.1, which applies to employees of the State as the employer and provides for payment of leave accruals upon separation. 4 NYCRR 23.1, in pertinent part, provides that “No employee who is removed from State service as a result of disciplinary action or who resigns after charges of incompetency or misconduct have been served upon him shall be entitled to compensation for vacation credits under the provisions of this Part.” Many local civil service commissions have adopted a similar rule.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00659.htm

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The 2014 edition of the Discipline Book, a 2,200+ page e-book providing a concise guide to disciplinary actions involving public employees in New York State is available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for information concerning this electronic reference manual.

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 8, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 8, 2014

Click on text highlighted in color to access the full report

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli on Tuesday, February 4, 2014, announced his office completed audits of

the Village of Allegany;

the Baldwin Public Library;

the Town of Charleston;

the Comsewogue Public Library;

the Endwell Fire District;

the Lily Dale Volunteer Fire Company;

the Town of Oneonta Fire District; and

the Warsaw Fire Department

DiNapoli: Funds Dedicated for Highway & Bridge Capital Projects Continue to be Diverted for Operating and Debt Costs

Money in the Dedicated Highway and Bridge Trust Fund continues to be diverted for non–capital purposes, leaving critical highway and bridge projects at increased risk as the state faces fiscal challenges and shrinking debt capacity, according to a reportissued on Wednesday, February 5, 2014, by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: ‘Early Warning’ System Finds 15 Villages in Fiscal Stress

State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System has identified 15 villages in New York in some level of fiscal stress. DiNapoli’s office evaluated 535 villages with fiscal years ending on May 31, 2013.

DiNapoli: Audit Cites East Clinton Fire District for Improper Gifts

Officials in Dutchess County’s East Clinton Fire District improperly paid nearly $35,000 in personal expenses for members, including rent, cable television and college fees, according to an audit released on Tuesday, February 4, 2014, by State Comptroller Thomas P. DiNapoli. The findings of the Comptroller’s audit and investigation were referred to Dutchess County District Attorney William V. Grady.

DiNapoli, Stringer Lead Investors Calling on Olympic Sponsors to End Their Silence, Defend Russian LGBT Rights

State Comptroller Thomas P. DiNapoli, as trustee of the $160.7 billion New York State Common Retirement Fund, along with New York City Comptroller Scott Stringer and a coalition of 19 investors, on Wednesday, February 5, 2014 released letterswritten to four major corporate sponsors of the upcoming Winter Olympic Games in Sochi, Russia that failed to respond to an earlier request they use their influence to ensure the protection of the human rights of Russian citizens, as well as athletes and visitors to the Olympics.
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State employer entitled to reimbursement by the Workers’ Compensation Board for personal leave credits used by State employee injured on the job

State employer entitled to reimbursement by the Workers’ Compensation Board for personal leave credits used by State employee injured on the job

2014 NY Slip Op 00153, Appellate Division, Third Department

A guard [Guard] at a State psychiatric center [Employer] suffered a work-related injury and his claim for workers' compensation benefits was approved. Guard was awarded benefits for the period July 2 until September 7. During that period Guard received his full salary, which included payment for five days of absence charged to his personal leave credits.

The Employer then requested reimbursement at the workers' compensation benefit rate for the advance payment of compensation* it paid to Guard during his disability, including for the time Guard charged against his personal leave credits. The Workers' Compensation Board ultimately ruled that Employer was not entitled to reimbursement related to Guard's use of personal leave credits and Employer appealed.

Here, said the court, personal leave credits, in contrast to sick leave credits, may not be accrued from year to year or converted into cash or retirement credits. In the opinion of the Appellate Division, Guard’s use of his personal leave time during his absence for disability did not result in a permanent benefit to Employer or a net detriment to Guard as Guard did not surrender "valuable vested rights" in return for the payment of full wages.

Rather, said the court, the denial of reimbursement for Employer’s payments related to personal leave credits would result in Guard receiving both full wages and compensation benefits for the time in question. Such a result is disfavored and requires that Employer be reimbursed for the personnel leave credits used by Guard.

The Appellate Division reversed the Board’s decision and remitted the matter  “to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision.”

* Workers' Compensation Law §25(4)(a) provides that, "[i]f the employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability, [the employer] shall be entitled to be reimbursed out of an unpaid installment or installments of compensation due." Citing Houda v Niagara Frontier Hockey, 16 AD3d 926, the decision notes that, "[a]n employer can be reimbursed for compensation paid to a claimant even if that compensation was paid in accordance with a contract or a collective bargaining agreement" and reimbursement must be awarded to the employer "unless such reimbursement would achieve a disproportionate result, either to the employer or employee"

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00153.htm
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Grounds for vacating the arbitrator’s award

Grounds for vacating the arbitrator’s award

Sheriff Officers Assn., Inc. v Nassau County, 2014 NY Slip Op 00108, Appellate Division, Second Department

The Sheriff Officers Association, Inc., on behalf of one of its members, [Member], filed a grievance with the County on the ground that the County violated the terms of the parties' collective bargaining agreement when it "unilaterally sent Member to an Independent Medical Examiner" and asked him to opine as to whether Member’s medical condition prevented Member from returning to full-time restricted duty.

The County denied the grievance and the Association demanded that the matter be submitted to arbitration.

The arbitrator determined that the County properly directed that Member be examined by the independent medical examiner since Member had, in effect and by her conduct, disputed certain portions of a police surgeon's report relating to her ability to work full time. The arbitrator further determined that the County properly asked the independent medical examiner to opine as to whether Member was capable of working full-time restricted duty, since this issue comprised the parties' dispute.

The arbitrator concluded that the County had not violated the terms of the collective bargaining agreement and upheld the County's denial of the Association's grievance.

The Association then filed a petition pursuant to Article 75 of the CPLR article 75 seeking to vacate the arbitrator's determination on the ground that the arbitrator exceeded his authority in concluding that the County had not violated the terms of the collective bargaining agreement.

Although Supreme Court had concluded that the arbitrator had exceeded his authority, granting the Association's petition and vacated the arbitrator's determination the Appellate Division reversed the lower court’s decision, explaining that "[J]udicial review of arbitration awards is extremely limited" whereby "the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute." Accordingly, said the court, "An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached"

Further, the Appellate Division noted that the Court of Appeals has recognized "three narrow grounds that may form the basis for vacating an arbitrator's award: [1] that it violates public policy; [2] that it is irrational, or [3] that it clearly exceeds a specifically enumerated limitation on the arbitrator's power" 

The Appellate Division said that "as relevant here, an arbitrator exceeds his or her power if the award 'g[ives] a completely irrational construction to the provisions in dispute and, in effect, ma[kes] a new contract for the parties.'"

The Appellate Division found that in this instance the arbitrator had not exceed his power in concluding that the County had not violated the terms of the collective bargaining agreement. Under the terms of the collective bargaining agreement,said the court, the arbitrator was permitted to resolve a grievance, which is defined as "any dispute . . . with respect to the meaning, interpretation or application of a provision of [the] Agreement." Thus the arbitrator had the authority to determine whether the County's actions violated the terms of the collective bargaining agreement, and his determination of that issue did not exceed a specifically enumerated limitation on his power.

As to the Association’s argument that the arbitrator misinterpreted the terms of the collective bargaining agreement, the court said that such an argument constituted a challenge to the merits of the arbitrator's determination.

In that regard, finding that the arbitrator's determination was not "completely irrational" the Appellate Division held that the Association’s challenge to the merits of the arbitrator's determination did not provide a ground for vacating that determination.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00108.htm
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Employer may not discontinue a firefighter’s GML §207-a(1) benefits without first providing the firefighter with an administrative hearing

Employer may not discontinue a firefighter’s GML §207-a(1) benefits without first providing the firefighter with an administrative hearing

2014 NY Slip Op 00408, Appellate Division, Third Department

A firefighter (Firefighter) injured his lower and about one and one-half years later he stopped working due to his injury. His employer (Village) then granted him disability benefits pursuant to General Municipal Law §207-a (1).

About six moths later Village told Firefighter that it was discontinuing his disability benefits. Firefighter appealed that decision, eventually resulting in a determination that he was entitled to General Municipal Law §207-a(1) benefits. While his administrative appeal was pending*Firefighter was granted performance-of-duty disability retirement benefits pursuant to Retirement and Social Security Law §363-c and retired.

The Village stopped paying Firefighter any benefits. Including “supplemental benefits” equal to the difference between his retirement allowance and his “full salary” as a firefighter. Firefighter asked Village pay him such supplemental disability benefits as authorized by General Municipal Law §207-a(2).

Ultimately the Appellate Division was presented with the issue: Does General Municipal Law §207-a provides one unified set of benefits, or are different and separate benefits are provided for under the different subdivisions of that statute.

The Appellate Division ruled that although the subdivisions provide for benefits that are different based on the qualifications, amounts and standards or requirements to obtain or retain them, the statute intends to provide for one unified set of benefits for the payment of salary to firefighters injured in the performance of duty.

In the words of the court: “Despite the differences between the subdivisions, the end result under their respective different scenarios is for the injured firefighter to receive his or her full regular salary.” Payment of the individual’s full regular salary is the benefit regardless of whether the firefighter is temporarily unable to work (General Municipal Law §207-a(1)], permanently unable to work and retired on that basis (General Municipal Law §207-a(2)], or unable to perform his or her regular duties but able to perform specified types of light duty (General Municipal Law §207-a(3)].”**

However, the Appellate Division said that although the benefits provided for in General Municipal Law §207-a are one unified benefit, an employer is not collaterally estopped from denying or considering if the firefighter is qualified to receive permanent supplemental benefits pursuant to General Municipal Law §207-a(2) based on the prior determination that he or she was entitled to temporary benefits under General Municipal Law §207-a(1).

The court explained that the standards and requirements to qualify for the benefits provided for under these two subdivisions are different. Subdivision (1) sets out the benefits to be paid to firefighters injured in the performance of duty until the municipality's health authorities certify that he or she is recovered and able to perform regular duties of his or her position.

In contrast, General Municipal Law §207-a(2) provides that in the event the firefighter is granted a specified type of disability retirement allowance as a result of an injury incurred in the performance of duties his or her employer no longer is required to pay the firefighter the full amount of his or her regular salary or wages but is required to pay the firefighter the difference between “the amounts received under such allowance or pension and the amount of his or her regular salary or wages until such time as he or she shall have attained the [relevant] mandatory service retirement age.”***

However, said the Appellate Division, as the benefits under General Municipal Law §207-a are one unified benefit, Supreme Court properly determined that Village could not terminate Firefighter’s benefits without a hearing, citing Park v Kapica, 8 NY3 302.

As the Court of Appeals held in Park, such disabled firefighters have a property interest in disability payments pursuant to General Municipal Law §207-a, giving rise to procedural due process protection before those payments may be terminated.

Here, said the Appellate Division, Firefighter submitted evidence of permanent disability related to his work-related injury, raising "a genuine dispute on operative facts" such that he is entitled to a hearing on the deprivation of his benefits by the Village and since Firefighter was already receiving benefits under the statute, he is entitled to due process "before those payments are terminated," he is entitled to a continuation of benefits pending the hearing.

* The decision notes that “It appears that (Village) later appointed a hearing officer and a hearing has been held, but no decision has yet been rendered.”

** Such benefits, however, may also be discontinued in the event the firefighter refuses to perform light duty work after the employer's health authorities determine that the firefighter is capable of performing such light duty.

*** N.B. GML 207-a(4-a) provides that “ Any benefit payable pursuant to subdivision two of this section to a person who is granted retirement for disability incurred in performance of duty pursuant to section three hundred sixty-three-c of the retirement and social security law shall be reduced by the amount of the benefits that are finally determined payable under the workers' compensation law by reason of accidental disability.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00408.htm

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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The Warren M. Anderson Breakfast Series Seminar’s Municipal Finance session is scheduled for February 11, 2014

The Warren M. Anderson Breakfast Series Seminar’s Municipal Finance session is scheduled for February 11, 2014

Source: Government Law Center, Albany Law School

The Albany Law School’s Government Law Center will host the next 2014 Annual Warren M. Anderson Breakfast Seminar Series, a nonpartisan hour-long breakfast program, on February 11 from 8-9 a.m. in the Assembly Parlor, at the State Capitol, 3rd FL. The program continues to be offered free of charge, but space is limited.

The speaker is New York State Comptroller Thomas P. DiNapoli who will discuss Municipal Finance.

For those interested, each seminar is accredited for one hour of transitional and non-transitional CLE credit in the area of “Professional Practice.”

To register or to obtain more information, contact Ms. Amy Gunnells at agunn@albanylaw.eduor telephone 518-445-2329.

Employment of retired public employees receiving a retirement allowance

Employment of retired public employees receiving a retirement allowance

Source: New York State Department of Civil Service Transmittal Memorandum TM-69

The New York State Department of Civil Service has revised Part 1850(G0 of its State Personnel Management Manual which address the employment of retired public employees receiving a retirement benefit from a public retirement system of this State.

The Revised Part is set out below.

1850(G) Employment of Retired Public Employees

.1 BACKGROUND

.110 Legal Basis

.111Sections 211 and 212 of Article 7 of the. Retirement and Social Security Law provide statutory authority for the reemployment in the public service of retired public employees without suspension or diminution of retirement allowance. A "retiree" as defined in Section 210 of the Article is "a retired member of a retirement system or pension plan administered by the state (New York) or any of its political subdivisions who is receiving a retirement allowance for other than physical disability."

A.     Section 210 of the Article also defines various other terms which relate to such reemployments.

B.     In addition, retirees employed pursuant to Sections 211 or 212 must meet the normal legal requirements for appointment.

+ .112 Section 212 of Article 7 provides for a "retiree" to earn up to the maximum entitled under the New York State Retirement Law without diminution of retirement allowance, pursuant to section 203 of the Federal Social Security Act. The current maximum is $30,000 annually (as of 2013). However, there are no limitations on maximum earnings under section 212 during the calendar year the retiree reaches the age of 65 or in any year thereafter.

+ .113 Section 211 of Article 7 provides for a retiree to earn more than the maximum entitlement under 212, subject to some limitations determined on a case-by-case basis, with the approval of the appropriate body. In cases of State employment in the Classified Service, this body is the State Civil Service Commission. Section 211 should only be used for retirees under 65 years of age. Section 211 (2) (a) identifies the proper authority in the case of unclassified service positions in the State University system and certain positions in the municipal service and the judicial system.

.2 POLICY

.210 Limitations

+ .211 Section 211 should only be used for retirees under 65 years of age.

.212 Disability retirees are not eligible for approval under Section 211.

+ .213 Commission approval may be granted for a period up to two years. Once the approval has expired, a new request must be submitted. In those cases where approval under section 211 is not granted by the Civil Service Commission, the retiree who wishes to be employed should contact the Retirement System to determine the effect on retirement benefits.

+ .214 Approval for employment under section 211 and appointment to a position are separate and distinct from each other. While the section 211 approval may be valid for a period up to two years, the appointment is not guaranteed for two years. If, for instance, the appointment were not permanent and a mandatory eligible list comes into existence for the position before the end of the two year period, the employee would have to be replaced by an individual appointed from the eligible list even though he or she had section 211 approval. 

Conversely, someone with section 211 approval could receive a permanent list appointment and, while the appointment would likely exist for more than two years, the section 211 approval could not. Once the section 211 waiver expired, that person would then have the following options:

A.     resign and continue to collect full retirement benefits;

B.     remain in the position with his/her retirement benefits affected; or,

C.     apply through the agency for a new Section 211 approval.

.4 PROCEDURE

.410 Requests

+ .411 Section 212 - The retiree communicates with the Retirement System directly. No agency involvement is necessary.

+ .412 Section 211 - The agency must initiate the request by completing the section 211 waiver application form (CSC-1) available on the Department of Civil Service web site at: http://www.cs.ny.gov/retirees/.

Before doing so, the agency should determine if the retiree is eligible to be employed under section 211 by reviewing the State Civil Service Commission’s Guidelines for Approval of Requests pursuant to Retirement and Social Security Law section 211. The Guidelines are available on the Department of Civil Service web site at: http://www.cs.ny.gov/commission/211guidelines.cfm

Formal notification will be made by the Commission staff by e-mail to the requesting agency and the NYS Retirement System when the Commission determination has been made.

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TM-69; Replaces TM-7; + = Revised Material; 1/30/2014

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