Employees alleging that they were required to perform out-of-title work must show they perform the minimum baseline requirements of the title

Employees alleging that they were required to perform out-of-title work must show they perform the minimum baseline requirements of the title
Matter of Brynien v Governor's Off. of Empl. Relations, 2010 NY Slip Op 09329, Appellate Division, Third Department

Kenneth Brynien, as President of the New York State Public Employees Federation, filed out-of-title grievances with Office of Mental Health (hereinafter OMH), challenging the full-time assignments of the employees to perform duties at two OMH facilities where they were employed.

The employees hold civil service positions classified in other than “Treatment Team Leader.”

The out-of-title grievances alleged that the employees had been improperly assigned to perform and had been performing the duties of a Treatment Team Leader [TTL], Salary Grade M-1, a title designated “managerial” for the purposes of collective bargaining in violation of the relevant collective bargaining agreement.

After unsuccessful administrative appeals, Brynien initiated two CPLR Article 78 proceedings challenging the administrative determinations.

Supreme Court dismissed both petitions and the Appellate Division affirmed the lower courts “well-reasoned written decision”

The Appellate Division said "Out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law §61(2)" and, in this instance, by Article 17 of the governing collective bargaining agreement.

As to the merits of the Article 78 petitions, the court said that its review of out-of-title work grievances focuses on “whether the new duties are appropriate to [the affected employees' job] titles and/or are similar in nature to, or a reasonable outgrowth of, the duties listed in [their respective] job specifications." Further, said the court, "Judicial review of [the Governor’s Office of Employee Relations’*] determination in this context is limited to whether it is arbitrary, capricious or without any rational basis."

The Appellate Division explained that although an employee need not be assigned the full range of duties of a higher salary grade to be performing out-of-title work, here the dispositive inquiry is whether the Governor’s Office of Employee Relations rationally concluded that the affected employees did not meet the minimum baseline requirements of TTLs such that the grieved duties are appropriate to their job titles and are similar in nature to, or a reasonable outgrowth of, the duties listed in their job specifications.

Holding that in its view GOER did so, the Appellate Division dismissed Brynien’s appeal.

* The Governor’s Office of Employee Relations was the ultimate administrative appellate body in this instance.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09329.htm

Failure of employee to provide a urine sample within the time limits set by federal regulations deemed a refusal to submit to the drug test

Failure of employee to provide a urine sample within the time limits set by federal regulations deemed a refusal to submit to the drug test
NYC Department of Sanitation v C.L.*, OATH Index #760/11

The New York City Department of Sanitation requires employees who are holders of commercial drivers' licenses to submit to random drug testing.

A sanitation worker, C.L. was charged with refusing to submit to a random test as a result of his failing to provide a sufficient urine sample within the time frame allotted by federal regulations.

C.L. then had five days from the date of the test to submit documentation to the Medical Review Officer (MRO) to show why he was unable to provide the required sample within the time period set by the federal regulation.

OATH Administrative Law Judge Ingrid Addison found that the Department had proved the refusal charge. Although Judge Addison indicated that she “was not entirely convinced by the MRO's rationale for rejecting the medical reports submitted by C.L., C.L. failed to present any expert testimony to controvert it.

Thus, the ALJ concluded, C.L.’s failure to produce sufficient urine within the time allotted constituted a refusal as charged.

In addition, Judge Addison found that the immediate follow-up steps taken by C.L. whereupon he sought an independent urine test, rebutted the inference that his urine sample would have tested positive. Accordingly she recommended that C.L. be suspended for 25 days without pay.

* C.L. held a commercial driver’s license and was subject to both Sanitation Department and federal regulations that require random drug testing. Pursuant to such federal regulations, C.L.’s name was been withheld from publication in Judge Addison's determination.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-760.pdf

Criticism of employee performance serving pursuant to a contract with a private entity

Criticism of employee performance serving pursuant to a contract with a private entity
Brackman v City of New York, Supreme Court, [Not selected for publication in the Official Reports]

If a public employee does not have tenure, he or she may be dismissed at any time, for any reason, or for no reason, provided that the termination does not otherwise constitute an unlawful act on the part of the public employer. At best, such an individual may demand, and receive, a name clearing hearing if there has been publication of the alleged disparaging remarks concerning his or her work performance.

Being successful in clearing one’s name via a name-clearing clearing hearing, however, does not entitle the individual to reinstatement to his or her former position.

The Brackman case involved a novel variation of this type of situation -- the rights of a terminated employee of an independent contractor performing work for a public entity.

The contractor, Data Industries, was to perform certain data processing related services for the City of New York. City officials were extremely critical of the work being done under the contract by Brackman, one of Data Industries’ employees.

City officials complained that Brackman was not performing satisfactorily and did not provided the services the City expected. This criticism resulted in Brackman’s dismissal from the project and from Data Industries.

Brackman sued for damages for the alleged defamation arising in the context of his work as a computer consultant for New York City’s Department of Employment. The court granted the City motion to dismiss Brackman’s petition for two reasons:

1. Brackman had signed a release in exchange for a sum of money when he was terminated by Data Industries covering “all actions, causes of action [and] suits [...] by reason of any matter, cause or thing whatsoever against Data Industries, the City of New York, the Department of Employment and its Management Information System Division;” and

2. The allegedly defamatory remarks are “quintessential expressions of opinion,” which are fully protected by the state and federal constitutions.

Justice Stallman said that all of the statements concerning Brackman’s abilities and his performance on the project use loose, figurative language, and none of the statements are objectively capable of being characterized as true or false.

Citing Williams v Varig Brazilian Airlines, 169 AD2d 434, the court said that “Disparaging remarks concerning a person’s job performance are routinely held to be constitutionally protected opinion.”

Dismissing Brackman’s petition, Justice Stallman said that as an at-will employee in the private sector there was no tort liability for wrongful or abusive discharge.

The lesson gleaned from Brackman is that as an at-will employee -- the private sector equivalent of a provisional or temporary public employee -- Brackman did not even have a right to a name clearing hearing, much less the right to sue the City or it officials for damages after being fired by the Data Industries.