Failure to produce a valid license required to perform the duties of the position bars individual’s employment

Failure to produce a valid license required to perform the duties of the position bars individual’s employment

NYC Department of Sanitation v Wright, OATH Index #1601/12

OATH Administrative Law Judge John B. Spooner found that the worker’s failure to possess a valid driver’s license barred him from continued employment as a sanitation worker. The Appointing Authority adopted Judge Spooner recommendation that the individual be terminated from his position.

The decision indicates that the worker “violated department rules by failing to have a valid driver’s license and not having the license reinstated after being notified of the need to do so.”

Where a valid license, permit or certification is required to lawfully perform the duties of the position, courts have ruled that an individual may be suspended without pay if he or she becomes unable to lawfully perform the duties of the position because of a lack of, or the loss of, the required license, certification or similar permit. “Summarily” in this context means without preferring disciplinary charges and providing a due process hearing once the individual has been given a reasonable opportunity to produce the required credential and has failed to do so.

Common examples of situations leading to a valid summary dismissal include the revocation of a truck driver’s permit to operate a motor vehicle on public roads, the loss of an attorney’s license to practice law and the expiration of a temporary permit to teach. All that appears to be necessary in such cases is for the appointing authority to make some reasonable inquiry to determine if the employee may lawfully perform the duties of the position.

Essentially courts have viewed employees who lack such a required credential as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. As the Court of Appeals indicated in New York State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275, termination from the position because the individual does not possess a valid required license or certification is not a disciplinary termination.

Other examples include Meliti v Nyquist, 53 AD2d 951, affirmed 41 NY2d 183 (immediate suspension of teachers was lawful because their teaching licenses had expired) and O’Keefe v Niagara Mohawk Power Corp, 714 FSupp 622, (traveling company demonstrator was not discriminated against when a private sector employer terminated the individual after his driver’s license was suspended).

In contrast, in Martin ex rel Lekkas, 86 AD2d 712, the issue focused on the employer's requiring Lekkas, an Assistant Clinical Physician, to have a valid license to practice medicine while serving as an administrator, a position that did not involve Lekkas’ practicing medicine. The appointing authority had terminated Lekkas from his position because he did not hold a valid New York State license to practice medicine. The Appellate Division ruled that only in the event the duties of the position require the incumbent to be licensed may the lack of such a license serve as grounds for termination.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/12_Cases/12-1601.pdf

Employer’s duty to provide a safe place to work does not extend to hazards inherent in the duties of the position

Employer’s duty to provide a safe place to work does not extend to hazards inherent in the duties of the position

Consalvo v City of New York, 53 AD3d 521

A New York City Sanitation Department employee was instructed to remove a dead cat from a public roadway. While removing the animal for the roadway the employee was struck by a hit-and-run driver, and thereafter died. Diane Consalvo sued the City, alleging wrongful death claming the City was negligent. The Supreme Court denied the City’s motion for summary judgment dismissing the action. On appeal, the Appellate Division, Second Department reversed the lower court’s ruling.

The Appellate Division said that “The duty of an employer to provide its employees with a safe place to work does not extend to hazards which are part of or inherent in the very work which the [employee] is to perform [nor] to secure the safety of [an employee] against a condition, or even defects, risks or dangers that may be readily observed by the reasonable use of the senses, having in view the age, intelligence and experience of the [employee]”

In this instance, said the court, the City demonstrated it was entitled to judgment as a law by showing that the employee was an experienced sanitation worker, that it was part of his work to pick up dead animals from the roadway, and that the risks inherent therein, including the risk of being struck by a car, were readily observable.

Consalvo relied upon union rules, which the court said “were promulgated not as a safety measure, but to promote efficiency,” and upon the alleged "custom" of the Sanitation Department to dispatch two workers to collect garbage. However, said the Appellate Division, such evidence did not raise a “triable issue of fact” sufficient to defeat the City's entitlement to judgment as a law.

In another “safe workplace” case, Scharff v Sachem Cent. School Dist. at Holbrook, 53 AD3d 538, the court said that although Labor Law §240(1) affords special protection to workers who sustain personal injuries as a result of elevation-related risks such as falling from a height or being struck by a falling object that was improperly hoisted, the provision does not "encompass any and all perils that may be connected in some tangential way with the effects of gravity."

The injured worker testified that he slipped and fell onto the surface of a roof of a school while working. The school district, said the Appellate Division, met its burden of establishing its prima facie entitlement to judgment as a law by showing that the employee’s injury was not incurred as a result of an elevation-related risk. The Appellate Division also commented that “Supreme Court properly found that the [worker’s] affidavit, in which he alleged that he also slid down the roof, contradicted prior deposition testimony and was an attempt to create a feigned issue of fact.

The Consalvo decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/employers-duty-to-provide-safe-place-to.html

The Scharff decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/worker-injured-while-working-above.html

 

The Doctrine of Collateral Estoppel held to bar applicant’s claim for unemployment insurance benefits

The Doctrine of Collateral Estoppel held to bar applicant’s claim for unemployment insurance benefits

Matter of Redd (Commissioner of Labor), 2012 NY Slip Op 05886, Appellate Division, Third Department

Initially suspended without pay from her employment for alleged misconduct, an arbitrator ultimately found the employee guilty of misconduct and terminated from her position.

The individual then filed for unemployment insurance benefits. The Unemployment Insurance Appeal Board denied her claim for unemployment insurance benefits on the basis that she lost her employment through misconduct.

The Appellate Division affirmed the Board’s decision, holding that as “there was a full and fair opportunity to litigate the issue in the prior proceeding, collateral estoppel* effect must be given to the arbitrator's factual findings regarding claimant's misconduct.”

Further, said the court, upon review it concluded that "the Board properly took into account the arbitrator's factual findings regarding the events which led to claimant's dismissal and then went on to reach its own conclusion as to whether claimant's behavior constituted [disqualifying] misconduct under the Labor Law."

As the record before court provided substantial evidence to support the Board's conclusion that claimant engaged in disqualifying misconduct, the Appellate Division said that it found no basis to reverse the Board’s ruling.

* The Doctrine of Collateral Estoppel holds that the determination of the facts litigated between the parties to an earlier proceeding are binding and conclusive on those parties in any subsequent litigation involving the same issue[s] and parties.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05886.htm