Due process considerations involving employees on leave of absence pursuant to CSL §71 as the result of a work related injury or disease or CSL §72 as the result of an injury or disease not related to employment

Due process considerations involving employees on leave of absence pursuant to CSL §71 as the result of a work related injury or disease or CSL §72 as the result of an injury or disease not related to employment

Allen v City of New York, 2014 NY Slip Op 08369, Appellate Division, First Department

The Appellate Division affirmed a Supreme Court's ruling that the City of New York violated Lionel Allen, then on workers' compensation leave pursuant to §71, when it terminated him from such leave.

Initially the City had terminated Allen pursuant to Civil Service Law §73, However, terminating an employee pursuant to Civil Service Law §73 is permitted only in the event the individual is on leave as the result of a disability resulting from non-occupational injuries or disease pursuant to §72 of the Civil Service Law.

The City then rescinded Allen's termination under color or §73 and terminated petitioner pursuant to Civil Service Law §71, which provides for leaves of absence in the event an employee suffers and injury or disease within the meaning of the Workers' Compensation Law. resulting from occupational injuries, retroactive to the original termination date.

The Appellate Division ruled that such action, taken without providing Allen any further opportunity to be heard, violated due process, rejecting the City's argument that the requirements for notice and opportunity to be heard are substantively identical with regard to the two sections and that Allen failed to make the requisite showing of mental and physical fitness for his position in response to the initial notice of intent to terminate him from his position.

In the words of the Appellate Division, “Even assuming that this is true, certain differences between the two provisions — including that 'section 71 affords greater procedural protections and opportunities for reinstatement (Matter of Allen v Howe , 84 NY2d 665, 673 [1994])-— as well as practical differences in petitioner's position at the time he was notified pursuant to each section, dictate that the process provided failed to satisfy basic requirements of fairness.”

The court also rejected the City's argument that even if Allen's due process rights were violated, “the [Supreme] court should still have ordered a hearing to determine whether [Allen] was fit to return to duty on the originally designated date of termination,” explaining that doing so would have effectively nullified the Supreme Court's due process holding.

The Appellate Division than commented that “Having vacated [the City's] determination terminating [Allen's] employment [pursuant to §73], there is no basis for the medical examination, pursuant to Civil Service Law §71, for an employee seeking reinstatement after being 'separated from the service by reason of a disability.'"

Some additional elements to consider when determining the rights of employees place on §§71 or 72. leave.

In Duncan v NYS Developmental Center, 63 NY2d 128, the Court of Appeals held that the appointing authority, at its discretion, may terminate an employee on §71 leave after he or she has been absent for one year or longer [or two years or longer in the event the employee's §71 disability leave resulted from an assault sustained in the course of his or her employment]. 

 

§73 of the Civil Service Law applies in cases where the employee is absent because of an injury or disease not related to work for a consecutive period of one or more years pursuant to §72 of the Civil Service Law. In contrast, §71 of the Civil Service Law provides for absences resulting from job related injuries and diseases and the Court of Appeals has held that an employee who has been cumulatively absent on §71 leave for a period year or two years or more, as the case may be, depending on the rules of the civil service commission having jurisdiction*, may be terminated from his or her position pursuant to §71 itself.

Both §§71 and 73, however, set out post-termination procedures for the purpose of considering applications for reinstatement submitted by an employee terminated pursuant to §§71 and 72, respectively, within one year following the end of their disability.

* See, for example, 4 NYCRR 5.9, which provisions apply to employees of the State of New York as the employer in the classified service.

The Allen decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_08369.htm

National Publication Names NYS’s Tax Policy Director “Person of the Year”

National Publication Names NYS’s Tax Policy Director, Deputy Commissioner Robert Plattner, “Person of the Year” Source: New York State Department of Taxation and Finance

A national publication has honored the NYS Tax Department’s policy chief with its annual Person of the Year Award for his vital role in the passage of sweeping corporate tax reform. State Tax Notes, the preeminent publication on state tax issues, honored Deputy Commissioner Robert Plattner, the Tax Department’s Director of the Office of Tax Policy and Analysis, with this prestigious recognition in its December 15th edition. The national publication presents the award each December to an individual or organization that had the most influence on state tax policy and practice during the past year.  In addition to “Person of the Year,” State Tax Notes recognized Mr. Plattner in an additional award category as “Administrator of the Year.”  State Tax Notes chose Mr. Plattner for the awards “for spearheading the multi-year effort that led to reform.”  That reform has received accolades for making the law fairer and simpler, modernizing it to reflect the current marketplace, and enhancing the State’s business climate.  The work on reform began within the agency, but then entered a phase of extensive discussions with the corporate community and other constituencies.  With critical support from Governor Andrew M. Cuomo and his Tax Reform and Fairness Commission, the reform legislation was included in the Governor’s Executive Budget for 2014-15, and signed into law shortly thereafter.  The reforms promote fairness and help businesses invest with confidence, while ensuring a stable and predictable revenue flow for New York State.  As a result, it is easier and less expensive for businesses to comply with their tax responsibilities, and more likely that state revenues will result from voluntary compliance, rather than costly audits.    The changes received widespread support from numerous organizations, including the Partnership for New York City, the Business Council of New York, the Tax Foundation, and the Securities Industry and Financial Markets Association.

Calculating a teacher's seniority for layoff and preferred eligible list purposes

Calculating a teacher's seniority for layoff and preferred eligible list purposes 
Decisions of the Commissioner of Education, Decision No. 16,686

An educator [Teacher A] challenged the actions of the School District in calculating her seniority for layoff and  preferred eligibility list  purposes. Teacher A claimed that this miscalculation resulted in her loss of an opportunity to be recalled to a full-time leave replacement substitute teaching position and asked the Commissioner to declare that she had greater seniority to another teacher, Teacher B, and to direct the District "to immediately transfer her to the relevant full-time leave replacement position and correct her place on the seniority list. 

 

The Commissioner noted that due to budgetary constraints, the School District had abolished both TeacherA's and Teacher B's positions in the elementary tenure area.

Although the Commissioner dismissed Teacher A's appeal on procedural grounds,* the decision notes that "Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits."

The Commissioner said that prior to Teacher A's appointment as a probationary teacher she had served in various capacities as a per diem substitute teacher in the district. The District had credited Teacher B with 8.97794 years of seniority and had credited Teacher A with 8.44 years of seniority. Teacher A alleged that District incorrectly calculated her seniority by failing to include time served as a "regular and consistent substitute."

Teacher A contended that based on the actual duties performed while serving as a per diem substitute in the elementary tenure area, she should be provided seniority credit for time served as a per diem substitute. The District, in contrast, argued that it had accurately calculated Teacher A's seniority, which should not include periods of time during which Teacher A served as a temporary per diem substitute.

The Commissioner explained that "It is well settled that service as a full-time regular substitute teacher entitles such teacher to seniority credit, when such service immediately precedes a probationary appointment." However, said the Commissioner, it is also clear that “an ‘itinerant’ or per diem substitute assigned on a temporary, as-needed basis does not accumulate seniority.”

In addition, the Commissioner observed that it is the nature and continuity of the particular substitute assignment that determines whether or not such service was regular, and therefore sufficient to warrant seniority credit.

While Teacher A was properly granted seniority credit for the period in which she served as a full-time leave replacement or regular substitute teacher in one particular class, the Commissioner said that the record reflected that other specific substitute service for which Teacher A sought seniority credit was, by its nature, per diem. 

 

Although Teacher A was required to report to one of the School District's elementary schools, the fact that Teacher A served in certain classrooms for a few days or a week at a time on an as-need basis does not change the fundamental nature of her position as a per diem substitute position. Accordingly, although Teacher A's substitute service may have been regular and consistent within the school building, because she substituted for various teachers, in various capacities, and for various time periods, the Commissioner said that the School District had  properly omitted Teacher A’s per diem substitute service when calculating her seniority.

* The most significant omission was A's failure to name B as a necessary party as B's rights could be adversely affected were A to prevail in her appeal,

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume54/d16686

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The Layoff, Preferred List and Reinstatement Manual- a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

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