Article 23-A of New York State's Correction Law does not control if an employee is terminated for a criminal offense committed after the individual was hired

Article 23-A of New York State's Correction Law provides that "no employment ... held by an individual ... shall be ... acted upon adversely by reason of the individual's having been previously convicted of one or more criminal offenses"* where the conviction "preceded such employment."**

Local 100, Transport Workers Union of America brought an action pursuant to CPLR Article 75 seeking to vacate an arbitration award that terminated a New York City Transit Authority [Authority] employee [Plaintiff***] and for a court order reinstating Plaintiff to his former position with full back pay and awarding Plaintiff costs and attorney's fees. Supreme Court denied Plaintiff's petition and dismissed the proceeding. Plaintiff appealed the court's decision.

The Appellate Division sustained the Supreme Court determination explaining:

1. Plaintiff's termination by the Authority was based on conduct that, if proven in court, would have constituted a felony and was not against public policy;

2. Although Correction Law Article 23-A provides, in pertinent part, that "no employment ... held by an individual  ... shall be ... acted upon adversely by reason of the individual's having been previously convicted of one or more criminal offenses" where the conviction "preceded such employment," in this instance Plaintiff's conviction did not precede his employment but occurred following his employment and was, therefore, not within the ambit of Article 23-A.

Addressing Plaintiff's request for reinstatement, the court held that denial of the request was not arbitrary and capricious as the governing regulations provide that an agency "may consider such application" but is not required to do so, and  approval of such an application is made at the discretion of the appointing authority.

Citing 55 RCNY Appendix A §6.2.6[a]-[b], the Appellate Division opined that "[i]t was not irrational for [the Authority] to conclude that in seeking reinstatement, [Plaintiff] merely sought to relitigate issues" earlier considered and decided by a neutral arbitrator in the course of a "grievance proceeding pursuant to a collective bargaining agreement" that resulted in Plaintiff's termination by the Authority.

* Correction Law §752, Unfair discrimination against persons previously convicted of one or more criminal offenses prohibited.

** Correction Law §751 applies to any person seeking a license or employment at any public or private employer who has previously been convicted of one or more criminal offenses in New York State or in any other jurisdiction.

*** Plaintiff was initially employed by the Authority in 2008. Ten years later Petitioner was arrested and ultimately plead guilty to a violation of 18 U.S.C. §641. His sentence: one-year probation and 80 hours of community service.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01008.htm

Workers' Compensation Benefits awarded for both schedule and nonschedule permanent injuries suffered in the same work-related accident

In this CPLR Article 78 action the Workers' Compensation Board ruled, among other things, that Petitioner [Claimant] was not simultaneously entitled to an award for a schedule loss of use and a permanent partial disability classification.

Claimant was injured in a motor vehicle accident while working as a police officer and established a workers' compensation claim for injuries suffered in that accident, including a neck injury. The Workers' Compensation Board found that Claimant had a permanent medical impairment that was not amenable to a schedule loss of use [SLU] finding and directed the matter be returned to the hearing calendar for a determination of loss of wage-earning capacity.

A Workers' Compensation Law Judge [WCLJ] determined that Claimant was permanently partially disabled with a 15% loss of wage-earning capacity, but he was not entitled to awards based upon a nonscheduled permanent partial disability classification as his current position as a police sergeant did not result in any reduced earnings. However, the WCLJ also found that Claimant "sustained a 15% SLU of his right hand, left hand and left arm and a 7.5% SLU of his right leg, entitling him to an SLU award."

The Board modified the WCLJ's decision, rescinding the SLU award based on its finding that Claimant's permanent medical impairment was subject to a nonscheduled classification encompassing all of Claimant's injuries and, therefore, Claimant was not entitled to an SLU award. Claimant appealed the Board's determination.

Addressing Claimant's appeal of the Board's rescinding the SLU award, Appellate Division noted that it had recently held that "where a claimant who has sustained both schedule and nonschedule permanent injuries in the same work-related accident has returned to work at pre-injury wages and, thus, receives no award based on his or her nonschedule permanent partial disability classification,  he or she is entitled to an SLU award."*

As there was a finding of permanency as to Claimant's neck injury and he had returned to work at pre-injury wages, the Appellate Division held that Claimant was entitled to an SLU award for the remaining injuries, reversing the Board's ruling and "remitted [the matter] to the Workers' Compensation Board for further proceedings not inconsistent with the Court's decision."

* See Matter of Fernandez v New York Univ. Benefits, 180 AD3d 1305

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03713.htm

Remedying an inadvertent disclosure of records provided pursuant to a Freedom of Information Law request

In responding to the Center on Privacy and Technology's [Center] request for certain documents pursuant to the Freedom of Information Law [FOIL] the New York City Police Department [Department] sent certain "unredacted" documents to the Center. The Department subsequently asked Supreme Court to prohibit the information inadvertently given to the Center from being disclosed by it. Supreme Court granted the Department's motion and the Center appealed the court's ruling.

The Appellate Division held that Supreme Court's order did not impose an unconstitutional prior restraint by precluding the Center from referring to the source of unredacted documents inadvertently disclosed to it by the Department in responding to the Center's FOIL request. The court said that the unredacted documents at issue constituted but a small portion of the thousands of pages of records the Department had provided the Center in responding to its FOIL request. 

Citing Seattle Times Co. v Rhinehart, 467 US 20, the Appellate Division explained that "an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny." Instead, opined the Appellate Division, a court may restrict a litigant's use of information obtained through litigation as long as the restriction:

[a] "furthers an important or substantial governmental interest unrelated to the suppression of expression"; and

[b] "the limitation of First Amendment freedoms is no greater than is necessary or essential to the protection of the particular governmental interest involved."

Concluding that the Department had a substantial government interest in preventing the inadvertent disclosure of the unredacted records at issue, the court noted that the Supreme Court's protective order was narrowly tailored in expressly allowing the Center to disseminate any information it had gleaned from the materials at issue and requiring the Department to provide the Center "with replacement records bearing redactions that are not challenged on the merits [in] the instant appeal."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_01724.htm