Letter from an employer that has an adverse impact on an individual and he or she knows he or she is aggrieved thereby, triggers the running of the relevant Statute of Limitations

Letter from an employer that has an adverse impact on an individual and he or she knows he or she is aggrieved thereby, triggers the running of the relevant Statute of Limitations
Coleman v Prendergast, 2012 NY Slip Op 01814, Appellate Division, Second Department

Carl Coleman and his co-petitioners [Coleman] filed a petition pursuant to Article 78 of the CPLR Article 78 seeking a court review changes in the qualifications for their positions and a requirement that they take certain examinations.

Noting that such an action must be commenced "within four months after the determination to be reviewed becomes final and binding upon the petitioner," Supreme Court ruled that their petition was untimely.

According to the decision, Coleman received correspondence from the Rockland County Community College in December 2008 advising him that the qualifications for his position as Security Officers at College had changed. As a result he had to take “certain examinations” and the first of the examinations would be held in February 2009.

The Appellate Division noted that “This correspondence was a final and binding determination within the meaning of CPLR 217(1),” explaining that it had an impact upon Coleman and he knew he was aggrieved, whereupon it commenced the running of the statute of limitations.

However, the court noted, Coleman did not commence his Article 78 action until January 2010, which was beyond the applicable four-month statute of limitations of CPLR 217(1).

Thus, said the Appellate Division, “Supreme Court properly granted that branch of the [College’s] motion which was to dismiss the proceeding as time-barred, and dismissed the proceeding.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01814.htm

Background investigations of applicants for employment - Cybervetting

Background investigations of applicants for employment - Cybervetting

Source: AELE Law Enforcement Legal Center, http://www.aele.org/, Reproduced with permission. Copyright © 2012 AELE

Recently there have been a number of newspaper stories reporting that prospective employers are asking applicants for employment for their passwords to access their "private sites " on their social media accounts such as Facebook and Twitter in the course of the interview process.

AELE has posted an item on its website entitled Developing a Cybervetting Strategy - IACP & DoD guidance manual.

Focusing on using cybervetting in an employment in law enforcement setting, the posting asks: “May background investigators lawfully require applicants to furnish user IDs and passwords to reveal privacy-protected areas on social media web pages?” 

AELE conclusion: Cybervetting may be used in screening applicants for employment in law enforcement positions and notes that it recently participated in national focus group meetings involving police chiefs, attorneys, psychologists and participants from other disciplines.

A report, Developing a Cybervetting Strategy for Law Enforcement, is posted on the Internet at: http://www.iacpsocialmedia.org/Portals/1/documents/CybervettingReport.pdf 

The report contains material that may be applicable in settings other than those involving the employment of law enforcement personnel.

N.B. AELE describes itself as "an extraordinary and unique resource, with free publications and online back issues since 2000." AELE has a searchable library of more than 32,000 case digests organized into 700 + indexed topics dating back to 1975. AELE states that there are no advertisements, tracking "cookies" or popups on its website. Users do not have to preregister and there is no time limit on research sessions. The contents of its online law library may be copied and pasted, saved or printed (except for commercial purposes) by users. AELE has a free search tool covering its database..

The Triborough Doctrine could continue expired Taylor Law contract provisions until a new contract is ratified notwithstanding statutory provisions to the contrary

The Triborough Doctrine could continue expired Taylor Law contract provisions until a new contract is ratified notwithstanding statutory provisions to the contrary
City of Oswego v Oswego City Firefighters Association, Local 2707, 2012 NY Slip Op 01996, Appellate Division, Fourth Department

The collective bargaining agreement between the City of Oswego and the Firefighters Association provided that the City would pay the firefighters' employee contributions to the New York State Police and Fireman's Retirement System (PFRS). In addition, the City agreed to make the Retirement and Social Security Law Plan §384-d available to the firefighters.

In 2009, the Legislature enacted Retirement and Social Security Law Article 22, which provides, in relevant part, that all members of the PFRS who joined the PFRS on or after the effective date of Article 22 would be required to contribute 3% of their annual wages to the State retirement plan in which they were enrolled.

There was an exception set out in the statue, however. The exception provided that "[n]otwithstanding any provision of law to the contrary, nothing in this act shall limit the eligibility of any member of an employee organization to join a special retirement plan open to him or her pursuant to a collectively negotiated agreement with any state or local government employer, where such agreement is in effect on the effective date of this act and so long as such agreement remains in effect thereafter; provided, however, that any such eligibility shall not apply upon termination of such agreement for employees otherwise subject to the provisions of article twenty-two of the retirement and social security law" (see Chapter 504 of the Laws of  2009, Part A, §8)..

The City had appointed several firefighters after the effective date of Chapter 504. When  the City refused to contribute the 3% "employee contribution" toward their respective retirement plans, the Union filed a grievance and ultimately demanded arbitration.

The parties stipulated as to the exhibits to be submitted to the arbitrator and left it to the arbitrator to frame the issue. In his "opinion and award," the arbitrator concluded that the firefighters who were hired by the City after the effective date of Article 22 were eligible to elect to participate in the 384-d plan provided for in Section 26.1 of the agreement and that the City would be required to pay for the employees' contributions as negotiated under the terms of that agreement.

The City filed an Article 75 petition seeking an order by Supreme Court vacating the arbitration award in favor of Local 2707.  The court dismissed the City’s petition and granted the Local’ application to confirm the award.

In its petition the City had argued the award “was in direct contravention of the Retirement and Social Security Law, the Civil Service Law and the ‘strong public policies’ underlying those laws.” The Appellate Division, affirming Supreme Court’s ruling, held that the arbitrator’s award was not contrary to existing statutes, did not violate a strong public policy and was not irrational.

The crucial issue on this appeal, said the court, was whether the exception in Section 8 applies to the newly appointed firefighters. That issue turned on whether the terms of the expired agreement between the City and the Local was still in effect at the time the new firefighters joined the PFRS. Pursuant to what is known as the Triborough doctrine as embodied in Civil Service Law §209-a (1) (e), the Appellate Division held that "it is an improper practice" [subject to an exception not relevant here] for a public employer "to refuse to continue all the terms of an expired agreement until a new agreement is negotiated" (See Civil Service Law §209-a [1] [e]).

Noting that a new agreement between the City and the Union had not yet been negotiated and ratified at the time the new firefighters had joined the PFRS, the Appellate Division held that all of the terms of the expired agreement were still in effect as mandated by the Triborough Doctrine. Thus, the determination to apply the Section 8 exception to the subject firefighters does not "violate a defined and discernible public policy...or... create an explicit conflict with other laws and their attendant policy concerns."

The Appellate Division also addressed another issue: the determination of the New York State Employees’ Retirement System relied upon by the City when it declined to make the employee contributions on behalf of its newly appointed firefighters.

The court said although the Supreme Court’s decision, which it affirmed, “is inconsistent with the determination of the Retirement System” as set forth in its letter to the City dated March 2, 2010, "where, as here, the question is one of pure statutory construction, dependent only on accurate apprehension of legislative intent, judicial review is less restricted and there is little basis to rely upon any special competence or expertise of the administrative agency."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01996.htm