Religious Accommodations in the Workplace

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The New York State Division of Human Rights announced a statewide public education campaign to remind New Yorkers about their legal rights and protections regarding religious accommodation in the workplace. The Division has partnered with local chambers of commerce to make employers aware of their legal obligations and responsibilities in providing religious accommodations to applicants and employees. The Division has also created a brochurefor workers, informing them of the ways in which New York State law allows for religious accommodation and protection. Through these efforts, the Division seeks to reduce the potential for religious discrimination, harassment and retaliation in the workplace.

“With the sacred holidays of Easter, Passover and Ramadan just around the corner, it’s important that New Yorkers of all faiths know that they do not have to choose between their faith and a paycheck,” Division of Human Rights Commissioner Helen Diane Foster said. “Our great state is made even greater by the presence and contributions of all of our citizens, regardless of their religion. The Division is committed to protecting the rights of all those who seek to balance work responsibilities while also faithfully observing their religious tradition.” 

This public education campaign kicks off with the Utica Chamber of Commerce, while additional sessions will be held in Buffalo, Ithaca, Syracuse, Rochester and Westchesterthroughout April and May. This effort advances the Governor’s Justice Agenda and his commitment to protecting the rights and freedoms of all New Yorkers.   

Unemployment insurance benefits unavailable to claimant found to have engaged in disqualifying misconduct

§75 of the Civil Service Law permits the appointing authority to place an officer or an employee served with disciplinary charges on leave without pay for up to 30-days pending the completion of the disciplinary hearing and the determination of the penalty to be imposed in the event the officer or the employee is found guilty of one or more of the charges and specifications filed against him or her.* This absence is deemed "disqualifying misconduct" for the purposed of eligibility for unemployment benefits associated with such absence and thereafter.

An individual [Claimant] employed by a municipality was alleged to have committed numerous violations of her employer's code of conduct by, among other things, failing to report to work on time, being absent without authorization, sleeping and lounging during her shift and refusing to comply with her supervisor's directives. 

The employer placed Claimant on a 30-day suspension without pay and served Claimant with disciplinary charges pursuant to Civil Service Law §75. The penalty proposed by the employer: Termination.

Claimant applied for unemployment insurance benefits during the period of her 30-day suspension without pay. The Department of Labor initially granted her application but subsequently issued a revised determination finding, among other things, that Claimant was not eligible to receive benefits during this time period "because she had engaged in disqualifying misconduct."

Following a hearing, an Unemployment Administrative Law Judge upheld the Department of Labor's revised determination that found Claimant ineligible for benefits because of her disqualifying misconduct and ruled, among other things, that due to Claimant's misconduct, the remuneration paid to her prior to the effective date of her  suspension without pay could not be used to establish a valid original claim for unemployment insurance benefits.** The Unemployment Insurance Appeal Board sustained the Administrative Law Judge's decision in this regard, and Claimant appealed the Board's decision.

The Appellate Division affirmed the Board's ruling. The court noted that a claimant's excessive tardiness, absenteeism and insubordination has been found to constitute disqualifying misconduct for the purpose of determining an individual's eligibility for unemployment insurance benefits. Further, said the court,  "The many instances of [Claimant's] problematic behavior and failure to abide by the employer's code of conduct are well supported by the record."

The court noted that while Claimant admitted to certain acts of misconduct, with respect to her alleged "sleeping during her shift" Claimant contended that she suffers from a disability that interfered with her ability to work during her night shift. However, noted the Appellate Division, Claimant failed to produce medical proof at the hearing to substantiate this claim.

The Appellate Division concluded that substantial evidence supported the Board's decision finding that the remuneration paid to Claimant prior to her placement on a 30-day suspension without pay could not be used to establish a valid original claim.

* In the event an officer or employee is found not guilty of all charges and specifications he or she is reinstated to the position with back salary and benefits. In the event the officer or employee is found guilty, the time during which an officer or employee was suspended without pay may be considered as part of the penalty.

** Claimant was still employed by the employer on the date her Unemployment Insurance hearing was conducted  as the disciplinary action being taken against her pursuant to Civil Service Law §75 was then still pending. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01880.htm

Disregarding unrebutted medical evidence in the record supporting an application for accidental disability retirement benefits fatal to the Medical Board and the Board of Trustees rejecting the application

Petitioner's application for accident disability retirement (ADR) benefits was rejected by both the Medical Board and the Board of Trustees. The Appellate Division unanimously annulled these decisions, on the law, and the matter remanded for further proceedings.

Petitioner, said the Appellate Division, had met his burden in establishing that he was entitled to ADR benefits by presenting:

 [1] the reports of his treating physicians, including the surgeon who performed his spinal surgery;

[2] the line-of-duty (LOD) accident reports indicating neck and back injuries;

[3] the contemporaneous emergency room reports also documenting neck and back pain; and

[4] MRIs from 2010 and 2011 revealing disc herniation, disc degeneration, and stenosis.

The medical evidence in the record, said the court, showed that Petitioner suffered from chronic back pain as a result of LOD injuries, in particular those sustained during a LOD accident that occurred in 2008.

The Board of Trustees' finding that Petitioner's 2008 accident was not causally related to his disability was based on a two-year gap in Petitioner's treatment, during which time he had returned to full duty. The Appellate Division found that this decision by the Board of Trustees "was conclusory" in light of the medical evidence in the record and  "[b]oth the Medical Board and the Board of Trustees failed to refute the opinion of Petitioner's surgeon that Petitioner's condition, which necessitated surgical intervention, was the result of his LOD injuries."

While the Medical Board was free to come to any conclusion supported by medical evidence before it, the court ruled that the board could not disregard the only competent evidence on the issue before it and its failure to refute the opinion of Petitioner's surgeon that Petitioner's condition was the result of his LOD injuries required that the Board's determination be vacated.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02028.htm

Individuals serving a public entity as independent contractors are not eligible for member service credit in a New York State public retirement system

Petitioner, a member of the New York State and Local Employees' Retirement System [NYSERS], applied for retirement service credit attributed to his alleged employment by Nassau County for a period running from October 15, 1974 to December 19, 1976. His application was rejected. After a hearing, the Hearing Officer found that Petitioner had not established his entitlement to additional member service credit in NYSERS. The Comptroller adopted the Hearing Officer's findings of fact and conclusions of law and Petitioner appealed the Comptroller's determination.

The Appellate Division confirmed the Comptroller's ruling. Citing Matter of DeLuca v New York State & Local Employees' Retirement Sys., 48 AD3d 876, the Appellate Division explained that "[I]t is the Comptroller's duty to determine retirement service credits and his determination will be upheld by this Court if rational and supported by substantial evidence" and it is the claimant's burden to show that he or she is entitled to additional retirement member service credit.

According to the decision, Petitioner had testified that [1] he did work for and was issued checks by Nassau County during the relevant period;* [2] he worked under contract for the now-defunct Tri-State Planning Commission;** and [3] Nassau County was reimbursed through the Commission "for much of the money paid to him."

Although Petitioner "did not recall the exact terms of his relationship with the Commission," the Appellate Division reported that there were indications that the relationship was not one of employer and employee, e.g., [1] Social Security records indicating that Petitioner's 1974-1976 income came from self-employment and [2] Petitioner had previously characterized his work during the relevant period of time as that of an independent contractor.***

These element, said the court, demonstrated that Petitioner was not "on the payroll of a participating employer during the time in question" and constitutes substantial evidence for the Comptroller's decision denying Petitioner the additional member service credit with NYSERS he sought, notwithstanding evidence that might support a different result.

* In addition, Petitioner testified that FICA payroll taxes were not deducted from the checks he received for his service and that he was not on the County payroll.

** The Tri-State Regional Planning Commission was the conduit for a total of about $3 billion in Federal aid to counties and municipalities in New York, New Jersey and Connecticut for more than 20 years and was discontinued in 1982.

*** For additional information concerning the legal status of independent contractors go to:

https://publicpersonnellaw.blogspot.com/2016/02/distinguishing-between-employees-and.html

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01876.htm