Questioning if the employer knew or should have known of its employee's propensity for sexual misconduct defeats the employer's motion for summary judgment

Questioning if the employer knew or should have known of its employee's propensity for sexual misconduct defeats the employer's motion for summary judgment

Johansmeyer v New York City Dept. of Educ., 2018 NY Slip Op 06518, Appellate Division, Second Department

Anthony Johansmeyer and others [Petitioners] sued the New York City Department of Education and the City of New York [jointly DOE] and Child Center of New York [CC] to recover damages for negligent hiring, supervision, and retention of a member of CC's staff [Employee] alleged to have inflicted acts of sexual abuse and molestation on an infant student. The defendants' motions for summary judgment dismissing the complaint as asserted against each of them was denied by Supreme Court, which ruling was sustained by the Appellate Division.

The Appellate Division explained that "Although an employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business," citing Fernandez v Rustic Inn, Inc., 60 AD3d 893, an employer may still be held liable under theories of negligent hiring, retention, and supervision of the employee.

However a necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury and the employer's negligence lies in having " placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring and retention'" of the employee.

With respect to DOE, the Appellate Division said DOE "failed to make a prima facie showing that the DOE was not negligent with respect to the hiring, retention, and supervision" of Employee and its submissions in support of its motion for summary judgment "raised a triable issue of fact as to whether the DOE took the appropriate measures" to evaluate Employee's "employment and fitness at the time he was allowed to intern at the school." In addition, said the court, there was a triable issue of fact as to whether the DOE had notice of the potential for harm to the infant plaintiff such that its alleged negligence in supervising and retaining Employee "placed [Employee] in a position to cause foreseeable harm."

The court also noted that, in general, liability may not be imposed on school authorities where all of the improper acts against a student occurred off school premises and outside school hours. Here, however, the Appellate Division said that DOE's submissions demonstrated that, although the sexual abuse ultimately occurred in the infant's home," it was preceded by time periods when the infant was alone with Employee during school hours on a regular basis. Thus, triable issues of fact exist as to whether the DOE knew or should have known of such behavior and Employee's propensity for sexual abuse.

The Appellate Division also agreed with Supreme Court's denial CC's cross motion for summary judgment, noting that although CC demonstrated its prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for negligent hiring by submitting the deposition transcript of its administrative director, Plaintiffs had raised a triable issue of fact by submitting Employee's Child Center employee records which indicated that Child Center never checked references, clearances, proof of education, or New York State Sex Offender Registration records.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_06518.htm

Terminating the services of a public officer following the expiration of his or her fixed term of office serving as a "hold-over" employee

Terminating the services of a public officer following the expiration of his or her fixed term of office serving as a "hold-over" employee

Phillips v Town of Glenville, 2018 NY Slip Op 02702, Appellate Division, Third Department

§5 of the Public Officers Law addresses situations in which an incumbent is continues to be employed in the position after expiration of his or her term office and provides, in pertinent part, that "Every officer except a  judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed by the constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing his successor." §5 further provides that "An officer so holding over for one or more entire terms, shall, for the purpose of choosing his successor, be regarded as having been newly chosen for such terms."*

In Phillips v Town of Glenville the Appellate Division addressed the a number of issues resulting from a "holdover" employment situation.

George J. Phillips was appointed to the office of Comptroller for Town of Glenville in 2001 and was subsequently reappointed to the position biennially, the last such appointment being for the period January 1, 2008 thru and including December 31, 2009. In January 2010 the Town Board notified Phillips that he would not be reappointed to the office of Comptroller, but that he could continue on as Acting Comptroller pending the appointment of his successor. In December 2012 in the course of a Town Board meeting the Town Board authorized the Town Supervisor terminate Phillips employment, effective December 31, 2012.

The Town Supervisor met with Phillips on December 28, 2012 and advised him that his employment was being terminated as of December 31, 2012 and later that same day Phillips was given a from the Town confirming his termination. Notwithstanding receiving notice of his termination, Phillips submitted an email to the Town's Deputy Supervisor on December 31, 2012 indicating his intention to resign and requested payment for certain accrued sick time. On January 2, 2010 Phillips submitted a notarized letter to the Town Clerk, resigning from his office with the Town.

Ultimately Phillips initiated a lawsuit contending that [1] his termination from employment was without legal effect as it was contrary to law; [2] improper and taken in bad faith; by operation of law he continued in the office of Comptroller as a hold over pending the appointment of his successor; and in consideration of the submission of his, he is entitled to recover his accrued sick time, personal time, vacation time and salary, including longevity, through January 2, 2013.

Phillips submitted a motion for summary judgment on his petition to Supreme Court, which the court denied but did grant the Town's motion for summary judgment. Phillips appealed but the Appellate Division affirmed, explaining that with respect to the Town's cross motion for summary judgment, it was Town's burden to establish a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence demonstrating the absence of any material issue of fact.

The Town did so, said the court, by submitting affidavits by the Town Clerk and the Town's Deputy Supervisor.

These affidavits, among other things, recited Phillips' employment history with the Town, indicated that, upon expiration of Phillips' 2008 appointment he was not reappointed as Comptroller and, instead, accepted the position of Acting Comptroller, a position with no fixed term or tenure that serves at the pleasure of the Town Board and the events involving the Town Board's meeting which specifically included an item calling for the Town Board to meet in executive session to discuss a personnel matter.

In particular, the Deputy Supervisor's affidavit stated that "even assuming that [Phillips']  position as Acting Comptroller qualified him to receive a cash payment for unused accrued sick time pursuant to the terms of the collective bargaining agreement between the Civil Service Employees Association and the Town, inasmuch as the Town terminated [his] employment, he was ineligible to receive any such payments.

Based on the foregoing, the Appellate Division ruled that the Town had met its initial summary judgment burden, effectively shifting the burden to Phillips to raise a triable issue of fact.

Considering Phillips' argument that in accordance with Public Officers Law §5, he was entitled, as a matter of law, to continue occupying the office of Comptroller until such time as his successor was chosen and qualified, which he contended did not occur until after he had resigned from office on January 2, 2013 and thus he was entitled to payment for certain accrued benefits the Appellate Division said that it found that argument unavailing.

The court explained that Phillips conceded that he was not reappointed to the office of Comptroller after the expiration of his 2008 reappointment. Accordingly, by operation of law, he no longer held the office of Comptroller and the position was considered vacant for purposes of appointing a successor as of January 1, 2010.

As to Phillips' reliance on his employment status with the Town on and after January 1, 2010, whether as a hold over within the meaning of Public Officers Law §5 or in consideration of the fact that he accepted the Town's offer to continue as Acting Comptroller in a temporary capacity, such employment status was immaterial because, in either case, Phillips' employment status was that of an at-will employee and, as such, he served at the pleasure of the Town Board. Further, observed the Appellate Division, in the absence of any specific limitation on the Town's authority to terminate Phillips, the Town Board was within its discretion to terminate him, as an at-will employee, at its December 2012 meeting. Significantly, the court said that "as a terminated employee, [Phillips] was not eligible to receive an award of any accrued benefits."

Another argument advanced by Phillips was that Town Board's December 12, 2012 determination to terminate plaintiff's employment was rendered null and void based on a violation of the Open Meetings Law. This claim was rejected by the Appellate Division.

The court said even assuming that the Town Board's December 12, 2012 meeting was procedurally defective and violated the Open Meetings Law for failing to sufficiently particularize the subject to be considered during executive session, its actions with respect to Phillips' employment were "not void but, rather, voidable." As there was nothing in the record before the Appellate Division establishing that the Town intentionally violated the Open Meetings Law and, "given that timely notice of the subject meeting was disseminated prior thereto and the undisputed fact that plaintiff was not reappointed to the office of Comptroller and, therefore, served as an at-will employee," we find that, under the circumstances presented, Phillips "failed to demonstrate sufficient good cause to warrant exercising our discretionary authority to invalidate [the Town's] determination terminating [Phillips'] employment."

* §5 further provides that in the event a term of office is truncated by reason of a predecessor holding over, the successor appointee shall serve for "the residue of the term only."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02702.htm

Challenging a hearing officer's decision that concluded that an individual absent from work pursuant to §207-c of the General Municipal Law can perform certain light duty

Challenging a hearing officer's decision that concluded that an individual absent from work pursuant to §207-c of the General Municipal Law can perform certain light duty

Mankowski v Nassau County, 2018 NY Slip Op 02470, Appellate Division, Second Department

Stanley Mankowski, a correction officer, was injured by inmate and was absent from work due to the line-of-duty injury and continued to receive his salary and other benefits pursuant to General Municipal Law §207-c.* Treated by an orthopedic surgeon, in a police surgeon designated by the appointing authority to conduct examinations assessing Mankowski's capability of returning to work, found that Mankowski could return to work " in a restricted/light-duty capacity" such as in an administrative role with no supervision of inmates.

Mankowski's union filed a contract grievance and commenced a proceeding in the Supreme Court, seeking a court order to enjoin the enforcement of the report of the police surgeon dated January 20, 2015, contending that "under the applicable collective bargaining agreement, it was the responsibility of the hearing officer, not a police surgeon, to determine the restrictions under which the petitioner was to return to work."

Supreme Court vacated the hearing officer's determination on the ground that the hearing officer exceeded or imperfectly executed her power such that a final and definite award was not made, and remitted the matter to the hearing officer to make the required determination. In a determination on remittal dated March 26, 2015, the hearing officer adopted the factual findings of the police surgeon and specified the the types of duties to which Mankowski could be assigned.

Again Mankowski challenged the hearing officer's ruling, filing a CPLR Article 78 petition seeking a judicial review the hearing officer's determinations dated January 20, 2015, and March 26, 2015, respectively, on the ground, among others, that they were not supported by substantial evidence. Supreme Court disagreed and determining that the hearing officer's determinations could be reviewed pursuant to both CPLR Articles 75 and 78, found that both of the hearing officer's determinations were supported by substantial evidence and denied Mankowski's petition. Mankowski appealed.

The Appellate Division, noting that as Mankowski's petition raises a question of whether the hearing officer's determinations were supported by substantial evidence, the Supreme Court should have transferred the proceeding to Appellate Division. However, as the "complete record is now before" the Appellate Division, the court treated the matter as one which has been transferred to it and reviewed the hearing officer's determinations de novo.

The Appellate Division said that a municipality is entitled to require an injured officer to submit to a medical examination and, if the physician determines that the officer is able to perform specified types of light duty, the municipality may discontinue payment of the officer's full salary or wages if the officer refuses to return to work when a light-duty post is available and offered to the officer. In the event the individual challenges the medical finding and submits evidence from his or her treating physician to support a claim of "continued total disability," however, the termination of benefits payable under General Municipal Law § 207-c and an order to report for duty may not be enforced until an administrative hearing has been held

In this instance the correction officer sought such an administrative hearing. As the hearing officer's determination following that hearing was subject to review pursuant to CPLR Article 78, "[j]udicial review of a determination of an administrative agency made after a hearing required by law is limited to consideration of whether the determination is supported by substantial evidence."

Noting that substantial evidence is defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact," the Appellate Division found that the hearing officer's determinations dated January 20, 2015, and March 26, 2015, respectively, finding that Mankowski was able to return to work on restricted duty, were supported by substantial evidence.

Accordingly, the Appellate Division ruled that the hearing officer's determinations must be confirmed, denied Mankowski's petition dismissed the proceeding on the merits; and awarded one bill of costs to the employer.

* General Municipal Law §207-c requires certain municipalities to continue to pay law enforcement personnel who sustain a disability in the course of their employment their salary and certain other benefits while on "leave for disability." General Municipal Law §207-a provides for the payment of similar benefits to firefighters injured in the performance of their duties.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02470.htm

Terminating the services of a public officer following the expiration of his or her fixed term of office serving as a "hold-over" employee

Terminating the services of a public officer following the expiration of his or her fixed term of office serving as a "hold-over" employee

Phillips v Town of Glenville, 2018 NY Slip Op 02702, Appellate Division, Third Department

§5 of the Public Officers Law addresses situations in which an incumbent is continues to be employed in the position after expiration of his or her term office and provides, in pertinent part, that "Every officer except a  judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed by the constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing his successor." §5 further provides that "An officer so holding over for one or more entire terms, shall, for the purpose of choosing his successor, be regarded as having been newly chosen for such terms."*

In Phillips v Town of Glenville the Appellate Division addressed the a number of issues resulting from a "holdover" employment situation.

George J. Phillips was appointed to the office of Comptroller for Town of Glenville in 2001 and was subsequently reappointed to the position biennially, the last such appointment being for the period January 1, 2008 thru and including December 31, 2009. In January 2010 the Town Board notified Phillips that he would not be reappointed to the office of Comptroller, but that he could continue on as Acting Comptroller pending the appointment of his successor. In December 2012 in the course of a Town Board meeting the Town Board authorized the Town Supervisor terminate Phillips employment, effective December 31, 2012.

The Town Supervisor met with Phillips on December 28, 2012 and advised him that his employment was being terminated as of December 31, 2012 and later that same day Phillips was given a from the Town confirming his termination. Notwithstanding receiving notice of his termination, Phillips submitted an email to the Town's Deputy Supervisor on December 31, 2012 indicating his intention to resign and requested payment for certain accrued sick time. On January 2, 2010 Phillips submitted a notarized letter to the Town Clerk, resigning from his office with the Town.

Ultimately Phillips initiated a lawsuit contending that [1] his termination from employment was without legal effect as it was contrary to law; [2] improper and taken in bad faith; by operation of law he continued in the office of Comptroller as a hold over pending the appointment of his successor; and in consideration of the submission of his, he is entitled to recover his accrued sick time, personal time, vacation time and salary, including longevity, through January 2, 2013.

Phillips submitted a motion for summary judgment on his petition to Supreme Court, which the court denied but did grant the Town's motion for summary judgment. Phillips appealed but the Appellate Division affirmed, explaining that with respect to the Town's cross motion for summary judgment, it was Town's burden to establish a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence demonstrating the absence of any material issue of fact.

The Town did so, said the court, by submitting affidavits by the Town Clerk and the Town's Deputy Supervisor.

These affidavits, among other things, recited Phillips' employment history with the Town, indicated that, upon expiration of Phillips' 2008 appointment he was not reappointed as Comptroller and, instead, accepted the position of Acting Comptroller, a position with no fixed term or tenure that serves at the pleasure of the Town Board and the events involving the Town Board's meeting which specifically included an item calling for the Town Board to meet in executive session to discuss a personnel matter.

In particular, the Deputy Supervisor's affidavit stated that "even assuming that [Phillips']  position as Acting Comptroller qualified him to receive a cash payment for unused accrued sick time pursuant to the terms of the collective bargaining agreement between the Civil Service Employees Association and the Town, inasmuch as the Town terminated [his] employment, he was ineligible to receive any such payments.

Based on the foregoing, the Appellate Division ruled that the Town had met its initial summary judgment burden, effectively shifting the burden to Phillips to raise a triable issue of fact.

Considering Phillips' argument that in accordance with Public Officers Law §5, he was entitled, as a matter of law, to continue occupying the office of Comptroller until such time as his successor was chosen and qualified, which he contended did not occur until after he had resigned from office on January 2, 2013 and thus he was entitled to payment for certain accrued benefits the Appellate Division said that it found that argument unavailing.

The court explained that Phillips conceded that he was not reappointed to the office of Comptroller after the expiration of his 2008 reappointment. Accordingly, by operation of law, he no longer held the office of Comptroller and the position was considered vacant for purposes of appointing a successor as of January 1, 2010.

As to Phillips' reliance on his employment status with the Town on and after January 1, 2010, whether as a hold over within the meaning of Public Officers Law §5 or in consideration of the fact that he accepted the Town's offer to continue as Acting Comptroller in a temporary capacity, such employment status was immaterial because, in either case, Phillips' employment status was that of an at-will employee and, as such, he served at the pleasure of the Town Board. Further, observed the Appellate Division, in the absence of any specific limitation on the Town's authority to terminate Phillips, the Town Board was within its discretion to terminate him, as an at-will employee, at its December 2012 meeting. Significantly, the court said that "as a terminated employee, [Phillips] was not eligible to receive an award of any accrued benefits."

Another argument advanced by Phillips was that Town Board's December 12, 2012 determination to terminate plaintiff's employment was rendered null and void based on a violation of the Open Meetings Law. This claim was rejected by the Appellate Division.

The court said even assuming that the Town Board's December 12, 2012 meeting was procedurally defective and violated the Open Meetings Law for failing to sufficiently particularize the subject to be considered during executive session, its actions with respect to Phillips' employment were "not void but, rather, voidable." As there was nothing in the record before the Appellate Division establishing that the Town intentionally violated the Open Meetings Law and, "given that timely notice of the subject meeting was disseminated prior thereto and the undisputed fact that plaintiff was not reappointed to the office of Comptroller and, therefore, served as an at-will employee," we find that, under the circumstances presented, Phillips "failed to demonstrate sufficient good cause to warrant exercising our discretionary authority to invalidate [the Town's] determination terminating [Phillips'] employment."

* §5 further provides that in the event a term of office is truncated by reason of a predecessor holding over, the successor appointee shall serve for "the residue of the term only."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02702.htm

Suspension of an educator without pay upon being served with disciplinary charges of misconduct constituting physical or sexual abuse of a student after June 30, 2015

Suspension of an educator without pay upon being served with disciplinary charges of misconduct constituting physical or sexual abuse of a student after June 30, 2015

New York State Education Law §3020-a

On October 6, 2018, the Albany Times Union*reported that an elementary school teacher will resign from his position when he is sentenced after pleading guilty to a misdemeanor charge of child endangerment. The educator was placed on leave with pay in April 2018 upon school officials learning that he was under investigation for allegedly "having inappropriate contact with a young girl during the 2010-11 school year.

It should be noted that §3020-a.2.c of the Education Law provides, in pertinent part, "Where charges of misconduct constituting physical or sexual abuse of a student are brought on or after July first, two thousand fifteen, the board of education may suspend the employee without pay pending an expedited hearing pursuant to subparagraph (i-a) of paragraph c of subdivision three of this section."

§3020-a.2.c  further provides that:

1. The Commissioner of Education "shall establish a process in regulations for a probable cause hearing before an impartial hearing officer within ten days to determine whether the decision to suspend an employee without pay pursuant to this paragraph  should be continued or reversed;"

2. In the event the hearing officer determines that no probable cause supports the charges, he or she shall reverse the decision of the board of education to suspend the employee without pay and reinstate such pay and [a] may also reinstate pay upon a written determination that a suspension without pay is grossly disproportionate in light of all surrounding circumstances; and [b] such an employee shall be eligible to receive reimbursement for withheld pay and accrued interest at a rate of six percent compounded annually if the hearing officer finds in his or her favor, either at the probable cause hearing or in a final determination pursuant to the expedited hearing held pursuant to subparagraph (i-a) of paragraph c of subdivision three of this section;

3. Such a suspension without pay "shall last no longer than one hundred and twenty days from the decision of the board of education to suspend the employee without pay and such suspension shall only relate to employee compensation, exclusive of other benefits and guarantees;" and

4. "Notwithstanding any other provision of law or regulation to the contrary, any provision of a collective bargaining agreement entered into by the city of New York as of April first, two thousand fifteen, that provides for suspension without pay for offenses as specified in this paragraph shall supersede the provisions hereof and shall continue in effect without modification and may be extended." 

* The article is posted on the Internet at:

https://www.timesunion.com/news/article/Guilderland-teacher-to-resign-in-December-13285113.php

Using a whistle blowing defense in a disciplinary action

Using a whistle blowing defense in a disciplinary action

Crossman-Battisti v Traficanti, 235 A.D.2d 566

Under what conditions is it appropriate to raise a claim that the employer violated §75-b, the so-called "whistleblower statute," as a defense in a §75 disciplinary action? This was one of the issues considered by the Appellate Division in the Crossman-Battisti case.

June F. Crossman-Battisti, a Court Assistant in Nassau County Family Court, was found guilty of charges of insubordination and misconduct and terminated from her position.

Charges filed against Crossman-Battisti included allegations of verbal abuse of her superiors, refusal to obey a direct order, unauthorized absences and abuse of leave, altercations with other employees and defiance of authority.

One of the claims Crossman-Battisti made in her appeal of this determination was that the disciplinary action taken against her violated §75-b of the Civil Service Law. She contended that §75 disciplinary charges were filed against her "in retaliation for her whistleblower activities."

The Appellate Division rejected this defense, commenting that a §75-b defense in a disciplinary action "applies only where the disciplinary proceeding is based solely on the employer's retaliatory action."

In contrast, said the Court, where "as here, the employer presents evidence of specific incidents of inappropriate conduct which are found to demonstrate a separate and independent basis for the [disciplinary] action taken, a defense under Civil Service Law §75-b cannot be sustained."

Click here to Read a FREE excerpt from The Discipline Book concerning the due process rights of public employees in New York State.

It then dismissed her appeal, commenting that it found that the penalty imposed, dismissal, met the Pell standard [Pell v Board of Education, 34 NY2d 222].

Testing individuals for drugs

Testing individuals for drugs

Bassi v City of New York, 233 A.D.2d 269

Loder v City of Glendale, 14 Cal. 4th 846

The administration of drug tests to employees continues to result in court challenges. The Loder and Bassi cases consider different situations where the courts were asked to determine if drug tests administered to employees and applicants for employment met constitutional requirements.

The Bassi Decision

George Bassi, a New York City firefighter, was terminated from his position because of use of cocaine.

Bassi admitted that he had used cocaine. In addition, he had tested positive in an EMIT test, which was confirmed by GC/MS tests.

But his admitted use of cocaine did not result in his termination. Rather it was his expulsion from a compulsory drug counseling program for "non-compliance" that was the critical factor that led to his dismissal.

Bassi was expelled after he tested positive in the EMIT and GC/MS tests administered to him in August 1994 while a participant in the program.

Was this sufficient to support a determination to terminate his employment as a firefighter?

The Appellate Division said it was, holding that it passed constitutional muster because "it was sufficiently attenuated" from the results of drug tests given to Bassi in April 1994 that had been suppressed for the purposes of making the determination to dismiss him.

The Loder Decision

The California Supreme Court has decided that public employers in California cannot require candidates for promotion to pass a test for illegal drugs in order to qualify for appointment.

Such tests, however, still may be used to screen applicants for initial appointment to positions in the public service.

The City of Glendale had required both "pre-employment and pre-promotion candidates" to pass drug and alcohol tests as a condition of appointment. The policy was challenged by Lorraine Loder, who contended that the requirement unconstitutionally violated a promotion candidate's right to privacy.

To resolve the controversy the courts applied a "balancing test" that weighted the "intrusiveness of the testing against the governmental interest served by the testing,"

The California Supreme Court distinguished between pre-employment testing and pre-promotion testing. The ruling cites guidelines adopted by the U.S. Supreme Court in Treasury Employees v Van Raab, 109 S.Ct. 1384.

In Van Raab the High Court examined the U.S. Customs Service's drug-testing program, which required urine samples from employees applying for promotion to positions involving suppressing the traffic of illegal drugs, requiring them to carry firearms or to handle classified materials, to provide urine samples.

The Justices said this program was subject to the reasonableness requirement of Fourth Amendment.

In other words, the California Supreme Court said, the key to the lawfulness of such tests was whether the drug testing program was a constitutionally permissible search.

Glendale contended that its tests were reasonable and constitutional because it had a strong interest in maintaining a workplace free of the problems created by drug use, "including diminished efficiency, increased absenteeism and added health expenses."

The California Supreme Court disagreed, concluding that pre-promotion drug testing of all employees is not constitutionally reasonable where the program does not consider the nature of the employment or the position sought.

The trial court had ruled that the test was unconstitutional for 36 of the City's 80 job classifications.

Nevertheless, the California Supreme Court held that the drug testing program as applied to new job applicants is constitutionally permissible, if the test is  "administered in a reasonable fashion as part of a lawful pre-employment medical examination that is required of each job applicant."

Why did the Court make such a distinction? The Court explained that "an employer has a significantly greater need for, and interest in, conducting suspicionless drug testing of job applicants than it does in conducting similar testing of current employees."

The Court's rationale was that the employer can observe work performance to determine if a current employee is abusing alcohol or drugs, but employers do not have a similar opportunity to observe potential new hires.

Another case involving drug testing of employees is Skinner v Railway Labor Executives' Association, 109 S.Ct. 1402.

In Skinner the U.S. Supreme Court said that the privacy expectations of railroad workers were diminished by employees' working in an industry that was closely regulated to ensure safety, a goal dependent in substantial part on the health and fitness of these employees.

Placing supervisors and subordinates in the same negotiating unit

Placing supervisors and subordinates in the same negotiating unit

CSEA and Genesee County, 29 PERB 3068

Is there any prohibition to mixing supervisors and the rank-and-file employees they supervise in the same negotiating unit? No, PERB ruled in the Genesee County case, which involved a petition to place ten  head nurses and supervising nurses in separate negotiating units rather than include them in the same unit as  200 non supervisory nurses.

PERB, noting that it had declined to establish a per se supervisory exclusionary rule, said "tensions, real or imagined, stemming from supervisor-subordinate relationships are not entitled to more weight in making a unit determination than any other of the myriad sources of workplace strain which can affect employees."

Roundtable Discussion via the Internet: Navigating LGBTQ+ Issues in the Workplace

Roundtable Discussion via the Internet: Navigating LGBTQ+ Issues in the Workplace

Source: Wolters Kluwer Legal & Regulatory U.S 

Noting that employers face a shifting patchwork of state laws and significant conflict between federal court interpretations of existing protections against employment discrimination and harassment that at least potentially shield LGBTQ+ applicants and employees, Wolters Kluwer Legal & Regulatory U.S  is offering a complimentary Webinar on Thursday, October 25, 2018, 3:00 PM - 4:00 PM EDT.*

WK indicates that the ways in which these applicants and employees may be negatively impacted by workplace biases, both obvious and subtle, continues to evolve. As a result, many employers are uncertain about how to navigate LGBTQ+ issues that may arise in their own workplaces. 

This roundtable discussion will cover:

• Who are the applicants and employees we are talking about?
• Knowing LGBTQ+ discrimination when you see it
• Dealing with gender fluidity
• Proactive measures to prevent discrimination
• How to handle discrimination complaints

To register for this complimentary Webinar click on:

http://learn.wolterskluwerlr.com/LP=1796?cm_mmc=Eloqua-_-Email-_-LM_Other%20Labor%20%26%20Employment%20Law%20All%202018-October%20Webinar%20LGBTQ%20Workplace%20IssuesRoundtable%20Discussion%3A%20Navigating%20LGBTQ%2B%20Issues%20in%20the%20Workplace-_-0000&elqTrackId=a7059e0e8a9e4790b9c0c3333ccd4359&elq=5f0ab4948ade4436ab642fa0e5ed3dc1&elqaid=10043&elqat=1&elqCampaignId=8105

* Participants may be eligible for 1 CLE credit - Wolters Kluwer Legal & Regulatory U.S. is seeking CLE certificates for NY, NJ, CA, and FL. For other states, it is seeking the Uniform CLE certificates which attendees can use to obtain CLE credit. Upon completion of each webinar an informal certificate will be issued. Attendees will receive an email from Above the Law with filing instructions so official certificate can be issued for your records and attendance submission where necessary.

Disallowing a workers' compensation claim based on the record as it then existed does not bar a claimant from submitting additional evidence to support the claim

Disallowing a workers' compensation claim based on the record as it then existed does not bar a claimant from submitting additional evidence to support the claim

Matter of Nock v New York City Dept. of Educ., 8 NY Slip Op 02693, Appellate Division, Third Department

Tykeisha D. Nock [Nock], a school lunch helper, filed a claim for workers' compensation benefits claiming that she had sustained injuries to her spinal cord, lower back, legs, feet and thighs while standing, cleaning tables and lifting heavy pans at work.

Nock's employer, the New York City Department of Education* [Education] controverted the claim. A Workers' Compensation Law Judge found that Education's  notice of controversy was untimely and established a claim for a work-related injury to Nock's back. The Workers' Compensation Board, however, ultimately determined that Nock had not submitted proof that she had sustained a causally-related injury, and disallowed her claim.

Although Education's failure to file a timely notice of controversy challenging Nock's workers' compensation claim barred it from raising certain defenses, Nock still has the burden of demonstrating a causal relationship between her employment and the medical condition she alleged was work related in the workers' compensation claim filed with the Workers' Compensation Board. Nock appealed.

The Appellate Division sustained the Board's ruling, finding:

1. Nock's threshold obligation to submit prima facie medical evidence, which the Board found she had satisfied, required only that she submit "a medical report referencing an injury, which includes traumas and illnesses" but did not require that such "evidence draw a causal link between the injury and [Nock's] employment."

2. In order to establish her claim for benefits, Nock bore the burden of demonstrating, "by competent medical evidence, that a causal connection existed between her injur[ies] and her employment" and such proof  "must signify a probability as to the underlying cause of the [Nock's] injury which is supported by a rational basis."

3. Nock's medical evidence consisted solely a report from a physician indicating that she had a spinal injury and underwent surgery and recorded her subjective complaints and physical findings, while noting that her prognosis was "poor."

The Appellate Division said that the physician's report contained no specific diagnosis, make no mention of the history of Nock's injury nor how it related to her work at Education and, although the report made reference to other medical providers and tests, "no other evidence was submitted."

Explaining that a medical opinion need not be expressed with "medical certainty," the Appellate Division found that Nock failed to submit any medical evidence providing a causal link between her injury and her employment. Thus, said the court, it discerned no basis upon which to disturb the Board's finding that Nock failed to establish her claim.

As to Nock contention that it "was improper for the Board to terminate her claim without providing her an opportunity to submit additional medical evidence," the Appellate Division noted that the Board did not outright deny her claim but, rather, "disallowed the claim based on the record as it existed" and declared that "[n]o further action is planned at this time." The court said that it did not read the Board's decision as precluding Nock from submitting further medical evidence of a causal relationship between her injury and her employment with Education, explaining that Board's statement that "no further action is planned at this time" generally indicates that "the claim is merely currently inactive" and presumably may be "reactivated" should Nock present the Board with additional relevant medical evidence within a reasonable period of time.

* Department of Education is a self-insured employer.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02693.htm

Failure to name a necessary party dooms an appeal to the Commissioner of Education to dismissal

Failure to name a necessary party dooms an appeal to the Commissioner of Education to dismissal

Appeal of Jules J. Comeau, Decisions of the Commissioner of Education, Decision No. 17372

Jules J. Comeau [Petitioner] appealed the adoption of a resolution by the Board of Education of the Long Lake Central School District approving a "side letter of understanding with the Long Lake Faculty Association" that  relieved District retirees who retired prior to July 1, 2014 from the obligation to pay health insurance premiums.

The genesis of this appeal was resignation of board member Christine Blumberg effective January 29, 2015 and the Board's appointing Ms. Lorrie Hosley to fill the vacancy left by Ms. Blumberg’s resignation until an election scheduled for May 2015. Ultimately Brian Penrose was elected to fill Ms. Blumberg's unexpired term.

The record before the Commissioner indicated that a "draft agenda indicated that Mr. Penrose would be sworn in early in the meeting while, in fact, the Board at its June 11, 2015, distributed a revised agenda indicating that Mr. Penrose’s swearing in had been moved to the end of the meeting. Also stated in the record before the Commissioner was the fact that prior to Mr. Penrose taking the oath of office, the board approved a side letter of understanding with the union described above in a 3-2 vote and Ms. Hosley was one of the three board members who voted to approve the resolution. This appeal followed.

Mr. Comeau alleged that the Board "improperly postponed Mr. Penrose’s swearing in so that Ms. Hosley could provide the necessary vote to approve the side letter" and further contends that the Board's "inappropriately moved Mr. Penrose’s swearing in from the beginning of the June 11, 2015 board meeting to the end of the meeting to prohibit him from voting on the side letter resolution."

The Commissioner dismissed Mr. Comeau's appeal for a number of reasons, including the failure to join necessary parties. A necessary party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such and joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

Here necessary parties included the retired teachers that would be adversely affected were Mr. Comeau's efforts to invalidate a side letter were successful as if the side letter annulled approximately 18 retired teachers would be required to contribute money in order to maintain their health insurance. The Commissioner found the failure to name these teachers in the caption in the appeal and serve them with a copy of the notice of petition and petition warrants dismissal of the appeal.

Notwithstanding this procedure omission, the Commissioner noted that Mr. Comeau's appeal would have been dismissed on the merits as in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

Mr. Comeau, said the Commissioner, failed to allege or prove that the timing of Mr. Penrose’s swearing in violated any law or policy. The Public Officers Law requires that every officer shall take the required oath of office and Mr. Penrose satisfied that requirement. Further, the Commissioner noted that "there is no legal basis for a finding that Mr. Penrose’s failure to take his oath of office at the beginning of a board meeting as opposed to the end of a board meeting, especially where this meeting was well within the 30-day timeframe imposed by the Public Officers Law, was in any way improper."

In addition, the Commissioner's decision indicates that while Mr. Comeau alleged that the Board delayed Mr. Penrose’s swearing in so that the Board "could utilize Ms. Hosley’s vote to pass the side letter resolution," Mr. Comeau failed to allege or prove that the vote would have been different had Mr. Penrose participated.

While Mr. Comeau asserts that he spoke with Mr. Penrose on June 12, 2015 but does not allege or establish that Mr. Penrose would have voted against the side letter had he been sworn in at the start of the meeting. Accordingly, said the Commissioner, Mr. Comeau failed to meet his burden of proving that, but for the allegedly improper conduct, the outcome of the vote would have been different.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17372

Determining the employer of a workers' compensation benefit claimant is critical to determining if a respondent may be sued by the claimant

Determining the employer of a workers' compensation benefit claimant is critical to determining if a  respondent may be sued by the claimant

Dube v County of Rockland, 2018 NY Slip Op 02597, Appellate Division, Second Department

New York State's Workers' Compensation Law provides that:

1. An employee who is entitled to receive workers' compensation benefits may not sue his or her general employer or special employer for injuries occurring during the course of employment.

2. A special employee is "one who is transferred for a limited time of whatever duration to the service of another" and a determination as to whether a special employment relationship exists is generally an issue of fact requiring consideration of many factors, including:

            [a] who controls and directs the manner of the employee's work,

           

            [b] who is responsible for payment of wages and benefits,

            [c] who furnishes equipment,

            [d] who has the right to discharge the employee, and

            [e] whether the work being performed was in furtherance of the special employer's or the general employer's business.

3. General employment is presumed to continue, and that presumption can only be rebutted by a "clear demonstration of [the] surrender of control by the general employer and assumption of control by the special employer."

The workers' compensation claimant in this action, Richard Dube, a police officer employed by the Town of Ramapo, was selected as a candidate for the Rockland Regional Rescue, Entry and Counter-Terrorism Team [REACT], a part-time SWAT team comprised of specially trained police officers from participating law enforcement agencies in Rockland County.

During a physical fitness test in connection with his candidacy for REACT, Dube suffered heat stroke and sustained personal injuries. Dube and his wife, suing derivatively, [Plaintiffs] commenced an action against the County, the Rockland County Sheriff's Department, and REACT [County Defendants]. Subsequently the action was consolidated with an action commenced by Plaintiffs against USPLabs, LLC.

County Defendants moved for summary judgment dismissing Plaintiff's complaint asserted against them, contending that Dube was their special employee and therefore barred from commencing an action against them. The County Defendants also contended that they were entitled to summary judgment dismissing the complaint based upon governmental immunity, the "firefighter's rule," and the doctrine of primary assumption of risk.

The Supreme Court granted the County Defendant's motion, determining that Dube was a special employee of the County Defendants, but did not address addressing the other grounds claimed by the County Defendants in support of its motion for summary judgment. The Plaintiffs appealed the Supreme Court's decision.

The Appellate Division reversed the lower court ruling, explaining that the County Defendants "failed to meet their initial burden of submitting sufficient evidence demonstrating the absence of any triable issues of fact" in that the County Defendants failed to submit sufficient evidence to rebut the presumption that Dube remained a general employee under the control of the Town at the time of the incident.

The Appellate Division pointed out that Dube was under the control of the County Defendants for the limited purpose of the physical test to evaluate his ability to join REACT. In contrast, Dube's general employer, the Town of Ramapo, paid his wages, gave him permission to attend the REACT test on his regular work day, paid his workers' compensation benefits premiums, and retained the authority to discharge or discipline him.

Addressing the County Defendants claim of "governmental immunity," the Appellate Division said the County Defendants "failed to establish, prima facie, that there was a set procedure for administering the physical test and that they did not violate accepted practices.

Further, said the court, the County Defendants reliance on the "firefighter's rule" is misplaced in light of the court's determination that the County Defendants  failed to establish, prima facie, that Dube was their special employee.

Finally, the Appellate Division noted that as the County Defendants "failed to establish, prima facie, that the doctrine of primary assumption of risk is applicable under the circumstances of this case."

As the County Defendants failed to meet its prima facieburden, Supreme Court was required to deny its motion for summary judgment "regardless of the sufficiency of the [Plaintiffs'] papers submitted in opposition. Accordingly, the Appellate Division reversed the lower court's decision, on the law, and awarded one bill of costs to the Plaintiffs.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02597.htm