Use of volunteer workers by the State

Use of volunteer workers by the State

9 NYCRR 141.0

In addition to employment in State service in a position in the Classified Service or the Unclassified Service, an individual serving as a volunteer may be deemed to be an “employee” of the State for certain purposes.

9 NYCRR 141.0 authorizes the use of volunteer workers by the State, declaring that it is “the policy of the State that the use of volunteer workers be consistent with the needs and requirements of sound and orderly administration of State government." 9 NYCRR 141.0 further provides that "It is also the policy of the State that the protection of workmen's compensation coverage be provided to all volunteer workers donating their services to the State.”

However, the use of volunteer workers by a State Department or agency is subject to the prior approval of the Director of the Budget. [see 9 NYCRR 141.1.]

The application submitted to the Director of the Budget for approval to accept the services of volunteers is to include the reasons why the use of volunteer workers is necessary, what will be accomplished by using volunteer workers and an estimate of the number of volunteer workers required.

Significantly, Public Officers Law §17* covers such “approved” volunteers, providing for their defense and indemnification in any civil action or proceeding “in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his [or her] public employment or duties” including actions alleging unlawful discrimination within the meaning of 42 USC 1981 and 42 USC 1983.

The duty to provide for a defense, however, is not available to the individual “where such civil action or proceeding is brought by or on behalf of the State.”

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* Public Officers Law §17, in pertinent part, provides that “the term ‘employee’ shall mean … a volunteer expressly authorized to participate in a state-sponsored volunteer program …” Similarly, Public Officers Law §18, which provides for the “Defense and indemnification of officers and employees of public entities,” includes within its definition of the term “employee,” an individual serving as “a volunteer expressly authorized to participate in a publicly sponsored volunteer program.”

Public officer refused reimbursement for legal costs

Public officer refused reimbursement for legal costs

Corning v. Laurel Hollow, 48 NY2d 348

Although initially represented by the County Attorney’s Office, public officials being sued in their personal rather than an official capacity for an act performed in connection with official duties dismissed the attorney provided by the County and engaged a private attorney to represent them. When they later sought reimbursement for their legal fees and expenses (they won the case) payment was denied on the basis that it would constitute an unlawful gift of public monies.

The decision also suggests that as the dispute was “private” the providing of a public staff attorney might not be in order.

In a dissenting opinion, the view that the legal expenses but not the attorney fees were reimbursable was expressed but this distinction was rejected by the majority. The majority view was that in the absence of a statute authorizing the Village to provide for a defense, the State Constitution prohibited it from reimbursing the officials for any expense incurred in defending themselves when sued in a personal capacity.

Tape recording of PERB hearing not permitted

Tape recording of PERB hearing not permitted

Town of Shelter Island v. PBA, Cases U-3538; 3569

A PERB Hearing Officer ruled that a PERB improper practice charge hearing could not be taped when a newspaper and television reporters came to the hearing at the invitation of the employer. On appeal, PERB found the employer’s reliance on the State’s Open Meetings Law “misplaced” as Section 103 of the Public Officers Law exempts quasi-judicial.

In contrast, the Court in People v. Ystueta, 99 Misc 2d 1105, held that the State Comptroller’s Opinion (78 Op St Comp 457) allowing local governments to prohibit the recording of its “regular meetings” on a tape recorder is not binding on the Court, indicating that such a prohibition violates public policy and the principles underlying Section 95 of the Public Officers Law.

Exclusion of the public from collective bargaining sessions conducted pursuant to the Taylor Law, however, is permitted (Section 100, Public Officers Law).

Concerning using a “one name” eligible list

Concerning using a “one name” eligible list

Matter of Horowitz, 70 AD2d 854

By Executive Order, the employer followed a “rule of one” in appointment from the appropriate eligible list instead of the more common “rule of three”.

After the agency obtained an “exemption” from the Executive Order which would have otherwise required the only passed candidate to be appointed, it told the eligible that he was not to be appointed because “he was not competent to perform the work demanded by the higher title position”.

The agency then appointed two employees who had taken but failed the test to the higher title provisionally.

As the reason for non-appointment was based essentially on alleged lack of competency, under the facts of this case the Court held that such a “passing over” stigmatized the employee and required a hearing in accordance with due process so that the candidate could be heard to refute the “charge of incompetence”.

Police officers receiving GML §207-c benefits not eligible to accrue leave credits unless such accruals are specifically provided for in the collective bargaining agreement

Police officers receiving GML §207-c benefits not eligible to accrue leave credits unless such accruals are specifically provided for in the collective bargaining agreement

Matter of Incorporated Vil. of Floral Park v Floral Park Police Benevolent Assn.. 2011 NY Slip Op 07840, Appellate Division, Second Department

A Village of Floral Park Police Officer was injured in the line of duty and was provided with benefits pursuant to General Municipal Law §207-c.

When the Village told the officer that he could not accrue any holiday or termination pay, or personal, sick, or vacation days during the disability period. the officer filed a grievance pursuant to the collective bargaining agreement between the Village and the Floral Park Police Benevolent Association.

The Village denied the grievance and the PBA filed a demand for arbitration contending that the underlying issue was a matter of contract interpretation. The Village then commenced an Article 75 proceeding seeking a court order to permanently stay arbitration.

Supreme Court ultimately granted the Village’s petition, which decision the Appellate Division affirmed.

The Appellate Division held that the benefits provided to a police officer pursuant to General Municipal Law §207-c are exclusive, and a collective bargaining agreement will not be construed to implicitly expand such benefits. Thus, said the court, “unless a collective bargaining agreement expressly provides for compensation or benefits to disabled officers in addition to those provided by General Municipal Law §207-c, there is no entitlement to such additional compensation.”*

Despite PBA's contention to the contrary, the Appellate Division found that the controlling collective bargaining agreement did not expressly provide that leave time accrues during the period that a disabled officer is not working and is receiving benefits pursuant to General Municipal Law §207-c. In the words of the court: “Had the parties intended to allow disabled officers to continue to accrue leave time during their period of disability, they could have inserted such language into Article XVI, Section 4, [of the collective bargaining agreement] but they did not do so. Under such circumstances, the dispute is not arbitrable.”

* Chalachan v City of Binghamton, 81 AD2d 973; 55 NY2d 989, considers a similar claim by Binghamton firefighters who were receiving disability benefits under Section 207-a of the General Municipal Law. The firefighters had contended that in addition to those benefits, they were entitled to vacation benefits under their collective bargaining agreement. The Appellate Division dismissed the claim holding that "if every benefit provided active fire fighters in the collective bargaining agreement was intended to include disabled firefighters covered by Section 207-a...the contract should contain language to so provide...(the) contention that they are members of their union...entitled to each and every fringe benefit for which active firefighters work daily is without merit. They do not work to earn vacation pay. They are already paid 52 weeks each year and their construction of the agreement to give them pay for 56 weeks (per year) is rejected".

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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 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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Provisional employee gets “name clearing hearing”

Provisional employee gets “name clearing hearing”

Matter of Brathwaite, Appellate Division, 70 AD2d 810

Although agreeing that provisional employees have no property right in a particular position and, therefore, are not entitled to a pre-termination hearing under the Civil Service Law, the Court ordered a “name clearing hearing” on the claim that the employee’s “good name, reputation, honor or integrity is at stake”. The reason given for the discharge, disclosing confidential material that the employer alleged was disseminated by the employer.

The employee, a teacher, denied the allegation but was nevertheless separated.

The Court held that the alleged dissemination adversely reflected on her record as a teacher and diminished her ability to secure similar employment. The opportunity to be heard was deemed essential to due process.

N.B. Should an individual prevail in a "name-clearing" hearing, all that he or she is entitled to is a "cleared name" and his or her success does not automatically result in his or her reinstatement to his or her former position.

Contracting for custodial services

Contracting for custodial services

Matter of Conlin, Court of Appeals, 49 NY2d 713

There is no Constitutional or Civil Service Law bar to contracting for the custodial care of schools if the contract was not merely to circumvent the Civil Service Law.

Limitations on sick leave

Limitations on sick leave

Economico v. Village of Pelham, 50 NY2d 120

Notwithstanding a contract provision providing for “unlimited sick leave with pay” for police officers unable to work due to non-service related disabilities, the State Court of Appeals held that a police officer so disabled could be terminated pursuant to Section 73 of the Civil Service Law. The Court distinguished this case (Economico v. Village of Pelham) from the Yonkers teacher case (Matter of Board of Educ. v Yonkers Fedn. of Teachers, 40 NY2d 268) where the Court held there was no prohibition against the establishment of a limited job security clause in a collective bargaining agreement.

The State’s interest in maintaining the efficiency and continuity of its civil service was held a substantial one and Section 73 limits the employee’s right to be continued on the payroll without limitation if triggered by the sound discretion of the appointing authority, even in the face of a contract provision to the contrary. The Court, in another case decided the same day (Dolan v. Whalen) held that a hearing in connection with termination pursuant to Section 73 is required if there is “some factual dispute impacting upon the employer’s right to discharge” the employee.

Of course the police officer injured in the line of duty is entitled to unlimited sick leave under the General Municipal Law, Sections 207-c(1), which leave is at full salary until the disability ceases. In this latter case, the employee cannot be required to use any leave credits available to him (Op. St. Comp. 79-356). The Comptroller’s Opinion noted that “a municipality and its policemen may not agree through collective bargaining that a policeman injured in the performance of his duties apply accumulated sick leave or vacation credits to receive the full amount of his salary during the period of his disability.”

Each school to have a principal of its own

Each school to have a principal of its own

Opinions of the Commissioner of Education 9994.

A school district proposal to have two elementary schools share a single principal who would divide his time between the two schools would not comply with the mandate of the Regulations of the Commissioner of Education (Section 100.3) which requires that each building of facility be under the supervision of a certified principal. 

Strict compliance with evaluation procedures excused in view of evidence attesting to the terminated probationary teacher’s poor performance in class

Strict compliance with evaluation procedures excused in view of evidence attesting to the terminated probationary teacher’s poor performance in class

Matter of Brown v Board of Educ. of the City School Dist. of the City of New York, 2011 NY Slip Op 07908, Appellate Division, First Department

A probationary teacher served with the New York City School System for three years and was terminated at the end of his third year. Consistent with a review procedure set forth in the collective bargaining agreement between the Board of Education and the teacher’s employee organization, the teacher appealed his temination to the Department of Education's Office of Appeal and Review [OAR].

The teacher’s principal and assistant principal were called as witnesses by the Department of Education at the OAR hearing during which they testified about the teacher’s poor performance in class management and engagement of students. Also introduced in the course of the hearing was the teacher’s Annual Professional Performance Review and Report on Probationary Service of Pedagogical Employee [APPR] that indicated a "U-rating."

In addition to cross-examining the DOE's witnesses, the teacher pointed out that the APPR report was deficient in several respects, namely that no documentation was annexed to the APPR as required by the Chancellor's rating handbook and that sections of the report were left blank. Ultimately the teacher was denied his Certification of Completion of Probation, whereupon he initiated an Article 78 proceeding challenging the determination to terminate him.

Supreme Court found that the Board of Education’s determination that resulted in the teacher’s unsatisfactory performance rating and his being discontinued from service was in violation of lawful procedure in that “the APPR report was not in strict compliance with the procedures set forth in the Rating Handbook promulgated by the Chancellor.”

The Appellate Division, however, unanimously reversed Supreme Court’s ruling “on the law” and reinstated the Board of Education’s decision to terminate the teacher.

The Appellate Division said that the teacher had failed to demonstrate that his termination as a probationary employee was arbitrary and capricious or was made in bad faith, noting that the teacher did not dispute that the evidence adduced at the hearing from the principal and assistant principal. That evidence, said the court,  provided "ample ground for his discontinuance."

The court said that the principal and the assistant principal described teacher's poor performance in class management and engagement of students, which descriptions were based on their personal classroom observations. Under these circumstances, said the Appellate Division, any deficiencies in the APPR report "do not render the determination to discontinue his employment arbitrary and capricious" as the hearing testimony provided ample grounds for terminating the teacher.

Reinstatement following layoff focuses on tenure rights

Reinstatement following layoff focuses on tenure rights

Chauvel v. Nyquist, 55 AD2 76, affd., 43 NY2 48)

Does “greater system-wide service” control situations involving layoff of teachers, or is it seniority in corresponding or similar positions that determines which person is to be offered an open teaching position first?

Where the performance of duties of the open position is unquestionably “similar” to those of the abolished positions, the teacher having the greater seniority in the performance area, not in the employing school district itself, is to receive the appointment.

Standards for such re-employment are more narrow than those dealing with layoff (Ward v. Nyquist, 43 NY2d 57) so as to prevent erosion of the tenure rights of the incumbents of abolished positions and means that the duties required to be performed in the vacant position must be similar to the duties performed by the person in his previous position before it was abolished. A test was stated in Matter of Elkins, 14 Ed Dept Repts 193, to the effect that if more than one-half of the functions to be performed by the incumbent of the new position are those which he performed in his old position, the positions are similar.

Tenured employee protected from political firing

Tenured employee protected from political firing

Branti v. Finkel, U.S. Supreme Court, 445 U.S. 507

The United States Supreme Court upheld a decision of the District Court, Southern District of New York, which ruled that two public defenders could not be removed from their positions because of their political affiliation. Both served in exempt class positions on a part-time basis. 

It was reported that both were Republicans, one having been appointed by a Republican while the other had been appointed earlier by a Democrat. Rejecting the argument that a necessary confidential relationship existed between the Public Defender and his assistants, and that such a relationship could not be had if the Public Defender was of a different political party than his assistants, the Court stated that the crucial point is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for effective performance. 

The decision in this case suggests that the Court’s views with respect to a political test for appointment might be the same as its views concerning removal from the public service. By indicating that performance was the significant consideration, the Court may well have limited the selection to the public service on the basis of merit and fitness in all but the rarest of situations.

Creating new positions

Creating new positions

Civil Service Employees Association v. Town of Harrison, 48 NY2d 66

There is only one way to create a new position, the way the controlling law requires.

The statutory imperatives of Section 22 of the Civil Service Law reflects such a strong public policy with respect to establishing new positions that it may not be ignored nor may it be circumvented under color of an “alternative” to the provisions of Section 22 contained in a collective bargaining agreement negotiated pursuant to the Taylor Law (Section 200 et seq, Civil Service Law).

Failing to comply with the mandates of Civil Service Law §22 is fatal and no new position can come into being unless it is created as prescribed by the section.

While the Court in its decision did not address the “status” of the incumbent of the “new position”, it would appear that the “status” of the individual is not dependent on the “existence” of any position and, presumably, other relevant provisions of the Civil Service Law (i.e., Section 80, Layoff) would control if the incumbent of the “nonexistent new position” could no longer serve as a “position” for payroll purposes.

Decisions of interest concerning Labor and Employment Law

Decisions of interest concerning Labor and Employment Law
Source: Justia November 11, 2011

Field v. Napolitano

Court: U.S. 1st Circuit Court of Appeals

Docket: 11-1339

November 10, 2011

Judge: Lynch

Areas of Law: Government & Administrative Law, Labor & Employment Law

A TSA worker developed a diabetic ulcer on his foot, was unable to work, and, after missing several months of work, was terminated from his position. The district court dismissed claims under the Aviation and Transportation Security Act (ATSA), 115 Stat. 597, and the Rehabilitation Act, 29 U.S.C. 791. The First Circuit affirmed, concluding that the ATSA clearly eliminates any cause of action under the Rehabilitation Act for TSA screeners.

http://j.st/GmM

Farris v. Shinseki

Court: U.S. 1st Circuit Court of Appeals

Docket: 11-1080

November 10, 2011

Judge: Thompson

Areas of Law: Government & Administrative Law, Labor & Employment Law

Plaintiff, an employee of the VA, was accused of committing fraud with respect to a work-related injury. Her employment was terminated. When mediation failed, plaintiff was notified that she had 15 days to file a complaint with the EEOC. Her attorney failed to comply with the deadline and the EEOC dismissed her complaint. The district court dismissed a complaint of disability discrimination. The First Circuit affirmed. Both the Americans with Disabilities Act, 42 U.S.C. 12112(a) and the Civil Rights Act, 42 U.S.C. 2000e, require exhaustion of administrative remedies. Plaintiff did not establish the factors required to toll the time limit: she and her attorney were aware of the limitation period; no motion for appointment of counsel was pending; the court did not lead plaintiff to believe she had done everything required; and no affirmative misconduct by the VA had lulled her into inaction.

http://j.st/GmY

Makowski v. SmithAmundsen LLC

Court: U.S. 7th Circuit Court of Appeals

Docket: 10-3330

November 9, 2011

Judge: Young

Areas of Law: Family Law, Labor & Employment Law

Plaintiff, a law firm marketing director, took leave under the Family Medical Leave Act just before the birth of her child and continuing after the birth. While she was on leave, her supervisors informed her that her position was eliminated as part of an organizational restructuring and terminated her employment. She filed suit, alleging pregnancy discrimination under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act; interference with rights under the FMLA; retaliation under the FMLA; and a violation of her right to a bonus under the FMLA. The district court granted summary judgment in favor of the defendants. The Seventh Circuit reversed.Statements allegedly made by the human resources director, fell within the scope of the h.r. director's employment and should have been admitted as nonhearsay under Rule 801(d)(2)(D). Those statements provided direct evidence of discriminatory intent and of a connection between taking leave and termination.

http://j.st/GAw

Overly v. KeyBank Nat'l Ass'n

Court: U.S. 7th Circuit Court of Appeals

Docket: 10-2705

November 10, 2011

Judge: Conley

Areas of Law: Labor & Employment Law

Plaintiff, a financial advisor, sued her employer for allegedly discriminating based on her gender and retaliating against her because of her complaints of gender discrimination in violation of Title VII of the Civil Rights Act of 1964. The district court granted summary judgment in favor of the employer. The Seventh Circuit affirmed. There was no evidence that a realignment of territories or disciplinary action against plaintiff were based on her gender. While both inappropriate and condescending, a supervisor referring to plaintiff as "cutie" 5 to 10 times over the course of two months was not sufficiently severe or pervasive to create a hostile work environment by itself, especially since it is undisputed that he stopped when asked. Plaintiff did not prove constructive discharge. The supervisor's patently offensive response to her resignation, "good riddance bitch," was not direct evidence of gender discrimination.

http://j.st/Gmw

Sutley v. Alabama Dept. of Pub. Safety

Court: Alabama Supreme Court

Docket: 1100970

November 4, 2011

Judge: Bolin

Areas of Law: Government & Administrative Law, Labor & Employment Law

Petitioner Andrew Sutley petitioned the Supreme Court for a writ of mandamus to direct the Court of Civil Appeals to quash a May 2011 writ. In its nion, the appellate court directed the Montgomery Circuit Court to vacate its December 2010 order that added the Alabama State Personnel Board as a party to Petitioner's administrative appeal. The underlying matter arose from Petitioner's dismissal from his job as an Alabama State Trooper. Petitioner moved to add the Board as respondent to his appeal at the circuit court. The circuit court granted that motion five months after the Board entered its final order upholding Petitioner's dismissal. The Board then petitioned the Court of Civil Appeals for a writ of mandamus to order the circuit court to dismiss Petitioner's case as untimely. Upon its review of the record, the Supreme Court found Petitioner did not have a clear legal right to a writ of mandamus to direct the appellate court to quash its writ of mandamus. Accordingly, the Supreme Court denied his petition.

http://j.st/GNB

Williams v. Plum Creek Timber Co.

Court: Montana Supreme Court

Docket: DA 11-0026

November 1, 2011

Judge: Nelson

Areas of Law: Labor & Employment Law

Employee brought an action under the Wrongful Discharge from Employment Act, alleging that he was wrongfully discharged from employment. Employer moved for summary judgment, contending that it had good cause to terminate Employee. The district court granted Employer's motion. The Supreme Court reversed, holding that the district court erred in granting summary judgment for Employer because disputed issues of material fact still existed as to whether Employer violated the express provisions of its written personnel policy by failing to apply it consistently and equally to all of its employees, whether Employee wrongfully demoted and transferred Employee, and whether this demotion and transfer was directly linked to Employee's discharge.

http://j.st/GfA

Howsden v. Roper's Real Estate Co.

Court: Nebraska Supreme Court

Docket: S-11-174

October 28, 2011

Judge: Gerrard

Areas of Law: Business Law, Injury Law, Insurance Law, Labor & Employment Law

Plaintiff Darlene Howsden was injured on premises that were leased to her employer by a legally distinct entity that was owned and operated by the same shareholders as her employer. Plaintiff sued Defendant, the entity that owned the premises, for negligence. The district court granted summary judgment to Defendant, concluding that Plaintiff's exclusive remedy was under the Nebraska Workers' Compensation Act. The Supreme Court reversed, holding that the district court erred in concluding that the exclusive remedy rule extended to Defendant because (1) Defendant was a legally separate entity from Plaintiff's employer, despite their corporate kinship, and there was no equitable basis to justify piercing the corporate veil between the two entities; and (2) therefore, Defendant was a third party to the employment relationship between Plaintiff and her employer, so Plaintiff's third-party claim against Defendant was not barred by the exclusive remedy provisions of the Act.

http://j.st/GfR

Scottsbluff Police Officers Ass'n v. City of Scottsbluff

Court: Nebraska Supreme Court

Docket: S-10-960

November 4, 2011

Judge: Gerrard

Areas of Law: Government & Administrative Law, Insurance Law, Labor & Employment Law

The City of Scottsbluff implemented changes to police officers' health insurance coverage and related benefits without bargaining with the Scottsbluff Police Officers Association (the Union). The Union filed a petition with the Nebraska Commission of Industrial Relations (CIR), alleging that the City violated Nebraska's Industrial Relations Act (IRA) by unilaterally implementing changes in the health insurance hazardous activities exclusion and by unilaterally changing the group health care benefits. The CIR (1) determined that the City violated the IRA, ordered the City to return the parties to the status quo ante, and ordered the parties to commence good faith negotiations within thirty days; and (2) determined that the Union had not violated the IRA in refusing to execute a previously ratified agreement. The Supreme Court affirmed in part and reversed in part, holding (1) the portion of the CIR's order requiring the parties to commence good faith negotiations on the health insurance issues was affirmed; and (2) the Union's refusal to execute the previously ratified agreement constituted a prohibited practice under the IRA. Remanded to determine what remedies were available to the City for the Union's violation.

http://j.st/GND

State ex rel. Kingsley v. State Employment Relations Bd.

Court: Ohio Supreme Court

Docket: 2011-0441

November 1, 2011

Judge: Per Curiam

Areas of Law: Government & Administrative Law, Labor & Employment Law

The State Employment Relations Board (SERB) appointed Kay Kingsley as an administrative law judge (ALJ), which was a classified position. Several years later, the General Assembly enacted H.B. 1, which changed the position of SERB ALJ from the classified service to the unclassified service. That same year, SERB terminated Kingsley's employment. Kingsley requested a writ of mandamus to declare H.B. 1 unconstitutional as applied to her and to order SERB to recognize her as a classified employee and to reinstate her to her former ALJ position. The court of appeals dismissed Kingsley's mandamus complaint, determining that Kingsley had an adequate remedy in the ordinary course of law by way of an administrative appeal. The Supreme Court affirmed, holding that Kingsley did not set forth a viable claim for the requested extraordinary relief in mandamus as she had an adequate remedy by way of civil-service appeal to raise her claims.

http://j.st/Gfe

Home Paramount Pest Control Cos. v. Shaffer

Court: Virginia Supreme Court

Docket: 101837

November 4, 2011

Judge: Mims

Areas of Law: Contracts, Labor & Employment Law

Employee of a pest control company signed an employment agreement containing a provision stating that he would not engage in similar business within two years after he ceased employment. After resigning and within the two-year period set forth in the provision, Employee became employed by another pest control company. Employer filed a complaint asserting that Employee's subsequent employment violated the provision. Employee filed a plea in bar, asserting that the provision was overbroad and therefore unenforceable. The circuit court granted the plea in bar and dismissed the complaint. The Supreme Court affirmed, holding that the circuit court did not err in ruling the provision was unenforceable.

http://j.st/Gxk

DeLoge v. State ex rel. Workers' Safety & Comp. Div.

Court: Wyoming Supreme Court

Docket: S-11-0072

November 9, 2011

Judge: Voigt

Areas of Law: Criminal Law, Government & Administrative Law, Insurance Law, Labor & Employment Law

Appellant Steven DeLoge, an inmate in the state penitentiary, was working in the kitchen when he was injured in an altercation with another inmate. Appellant filed a workers' compensation claim based on the injuries sustained from a head-butt from the other inmate. The Wyoming Workers' Safety and Compensation Division (Division) denied the claim. The Office of Administrative Hearings (OAH) concluded that Appellant's injuries were the result of illegal activity and were therefore not compensable under the Wyoming Worker's Compensation Act. The district court affirmed. The Supreme Court affirmed, holding that because the head-butt was a battery under the criminal statute then existing, and therefore an illegal activity, Appellant was not eligible for workers' compensation benefits.

http://j.st/GWW

Araguz v. State ex rel. Workers' Safety & Comp. Div.

Court: Wyoming Supreme Court

Docket: S-11-0029

October 28, 2011

Judge: Voigt

Areas of Law: Injury Law, Labor & Employment Law

Appellants, Timothy Araguz and James Elder, were injured in separate incidents while working at the Wal-Mart Distribution Center. After receiving compensation through Wal-Mart's private workers' compensation fund, Appellants filed for benefits under the Wyoming Worker's Compensation Act. The Wyoming Workers' Safety and Compensation Division denied their request, and the Office of Administrative Hearings confirmed the denial. At issue on appeal was whether Appellants were engaged in extrahazardous employment as defined by Wyo. Stat. Ann. 27-14-108. The Supreme Court affirmed the denial of benefits, holding that Wal-Mart was not engaged in extrahazardous employment as defined by the legislature and, therefore, Appellants were not entitled to workers' compensation benefits.

http://j.st/GfH

Bodily v. State ex rel. Workers' Safety & Comp. Div.

Court: Wyoming Supreme Court

Docket: S-11-0013

November 1, 2011

Judge: Golden

Areas of Law: Government & Administrative Law, Injury Law, Labor & Employment Law

The Wyoming Workers' Compensation Division denied Rick Bodily benefits for medical expenses related to his micro-lumbar discectomy for a herniated disc in his lower back after determining that Bodily's medical treatment was not related to his compensable work-related back injuries. The Office of Administrative Hearings (OAH) granted the Division's motion for summary judgment against Bodily. The district court affirmed. The Supreme Court reversed OAH's summary judgment, holding (1) genuine issues of material fact about causation of Bodily's disc herniation existed; and (2) the OAH erroneously acted as the trier of fact at the summary judgment stage in this case by weighing all the evidence and making credibility determinations.

http://j.st/Gf8

New York Public Personnel Law: Empire State Youth Orchestra invited to perform in...

New York Public Personnel Law: Empire State Youth Orchestra invited to perform in...: Empire State Youth Orchestra invited to perform in China and South Korea The 90 musicians comprising the Empire State Orchestra have been i...