Preexisting condition does not bar receiving GML §207-c if the claimant shows that the job duties were a direct cause of the disability

Preexisting condition does not bar receiving GML §207-c if the claimant shows that the job duties were a direct cause of the disability
D'Accursio v Monroe County, 2010 NY Slip Op 05455, Decided on June 18, 2010, Appellate Division, Fourth Department

Paul D’Accursio, a "Deputy Sheriff Jailor" with the Monroe County Sheriff's Department, filed a petition pursuant to CPLR Article 78 proceeding seeking to annul the denial of his application for General Municipal Law §207-c benefits. His application had been rejected on the ground that D’Accursio did not sustain the injury on which he based his claim in the performance of his job duties.

Supreme Court properly concluded that the determination was arbitrary and capricious and granted the petition.

The Appellate Division agreed, holding that General Municipal Law § 207-c, which provides for the payment of full regular salary or wages to certain law enforcement officers injured in the performance of their duties or taken sick as a result of the performance of their duties so as to necessitate medical or other lawful remedial "does not require that [officers] additionally demonstrate that their disability is related in a substantial degree to their job duties."

Citing White v County of Cortland, 97 NY2d 336, the Appellate Division ruled that “an officer ‘need only prove a direct causal relationship between job duties and the resulting illness or injury."

Further, the court observed that a preexisting condition does not bar recovery under section 207-c if the officer establishes "that the job duties were a direct cause of the disability."

Sustaining Supreme Court’s ruling the Appellate Division said that it concluded that D’Accursio had established "such a direct causal relationship and thus demonstrated his entitlement to benefits under General Municipal Law §207-c."

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05455.htm

Did I say “and”? I meant “or” – Department of Labor’s Reinterpretation of In Loco Parentis requirements under FMLA

Did I say “and”? I meant “or” – Department of Labor’s Reinterpretation of In Loco Parentis requirements under FMLA
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

On June 22, 2010, the US Department of Labor reinterpreted the existing requirements for an in loco parentis relationship for FMLA leave due to the birth, adoption, foster care placement or serious health condition of a son or daughter. The FMLA permits an eligible employee-parent to take FMLA leave to bond with a newborn or newly adopted/foster care placed son/daughter, or to care for a son or daughter with a serious health condition.

Parent includes in loco parentis relationships- meaning situations where there is not a biological or legal relationship between parent and child, but the person assumes the role of the parent toward the child. Under the existing regulation, 29 CFR 825.122(c)(3), an in loco parentis relationship has two requirements: (1) day-to-day care of the child; and (2) financial support.

In the memorandum, the DOL announced that the regulations only requires that the employee who intends to assume the responsibilities of a parent to either provide day-to-day care for the child OR financial support, but not both. The DOL's "interpretation" is at direct odds with the plain reading of the regulation.

Mr. Bosland Comments: The DOL Memorandum received a lot of Press because of it confirmed that same-sex partners who satisfy the definition could be an in loco parentis parent for purposes of FMLA leave. While that has always been a distinct possibility, it is noteworthy that the DOL has put in it writing. The substantive change is that the DOL has reduced the burden for establishing an in loco parentis parental relationship with a child from two requirements to one by interpreting "and" in the existing regulation to mean "or." My guess is that the DOL will formalize the change when it gets around to issuing regulations to implement the 2010 National Defense Authorization Act changes to military family leave.

The DOL Memorandum is available on the Internet at: http://www.feedblitz.com/t2.asp?/121772/2190912/0/http://www.dol.gov/opa/media/press/WHD/WHD20100877.htm

Drug dependency not a disability under New York’s Human Rights Law

Drug dependency not a disability under New York’s Human Rights Law
Matter of Michael Kirk v City of New York, 47 AD3d 406

Michael Kirk was terminated from his position with the New York City Fire Department after testing positive for cocaine in a random drug test.

The Appellate Division rejected Kirk’s contention that the Department’s random drug testing policy is unconstitutional and decided that the penalty of termination for substance abuse “does not shock the conscience,” citing Reinhard v City of New York, 34 AD3 376, leave to appeal denied, 8 NY3d 808.

The court pointed out that while alcohol dependency qualifies as a disability under the New York State Human Rights Law, drug abuse does not and Kirk was unable to prove that his drug abuse was causally related to his alcoholism.

The decision is posted on the Internet at:http://www.nycourts.gov/reporter/3dseries/2008/2008_00037.htm

Two-part test applied in resolving union’s improper practice charge

Two-part test applied in resolving union’s improper practice charge
Matter of Social Service Employees Union, Local 371, (Aubrey Norris) v New York City Bd. of Collective Bargaining, 47 AD3d 417

The Appellate Division upheld a determination by the New York City Board of Collective Bargaining that denied Local 371’s claim that the New York City Administration for Children’s Services [ACS] committed an improper practice petition when it denied a union official access to its headquarters to perform his duties as a union official.

Aubrey Norris, a Local 3761 officer, claimed that security officers employed by ACS “had interfered with access to ACS headquarters to perform his duties as a union official, in violation of the New York City Collective Bargaining Law (Administrative Code of City of NY § 12-306[a]).”

The Board decided that Norris failed to establish a violation under the applicable two-part test: [1] proof that the employer's agent responsible for the allegedly discriminatory act had knowledge of the employee's protected union activity, and [2] that such activity was a motivating factor for the employer's action.

The Board found that while it was undisputed these ACS employees knew of Norris's union activity, the evidence indicated their actions were motivated by personal animus toward Norris rather than toward him as a union representative, noting that other union representatives had no difficulty gaining access to the building for union business, and Norris was never actually prevented from entering the building.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2008/2008_00052.htm

Former employees alleged they were the target of selective prosecution in administrative disciplinary action

Former employees alleged they were the target of selective prosecution in administrative disciplinary action
Bey v New York City Civil Service Commission, Supreme Court, Justice Madden, 2001 NY Slip Op 30058(U), [not officially reported]

New York City conducted an investigation to determine which employees were claiming tax-exempt status or were claiming an excessive number of exemptions. About 1,400 City employees were identified, including the Bey correction officers.

Pedro Rivera Bey, Oba Hassan Wat Bey, Edward Ebanks, Herbert L. Hinnant, and Michael Nichols [hereinafter collectively referred to as Bey] are former tenured New York City Correction Department officers.

Identifying themselves as "Black and of Moorish national origin,” and believing that they were exempt from federal and state taxes, they filed Federal and New York State tax forms claiming exemptions from income tax withholdings. Some of these correction officers also filed IRS forms for nonresident aliens or filed self-made forms entitled "Certificates of Foreign Status for Moorish-Americans."

In April 1998, the Correction Department served disciplinary charges alleging that the Bey employees had engaged in conduct unbecoming an officer by: 1) knowingly submitting Federal and State tax forms falsely claiming exemption from taxation; 2) submitting false tax information with the intent to defraud the State of New York; and 3) violating their oaths of office by submitting documents disclaiming their United States citizenship.

The City's Office of Administrative Trials and Hearings [OATH] held a joint hearing for 17 Correction Department employees pursuant to Civil Service Law Section 75. OATH found that Bey and his co-plaintiffs were guilty of all charges filed against them except their alleged "disclaiming of their United States citizenship." The Department imposed the penalty recommended by OATH: termination.

In response to an appeal filed by the Bey employees pursuant to Section 76 of the Civil Service Law, the City's Civil Service affirmed the Correction Department's dismissal Bey correction officers.

Bey's appeal to State Supreme Court set out several claims but only one survived: the claim that "[t]he charges, the hearing procedures and the discharge of the [Bey officers] violated their statutory and constitutional rights." The Supreme Court justice ruled that Bey raised a triable issue when he alleged that employees who were not Moorish-Americans and who engaged in the same or similar misconduct, were permitted to change their W-4s and, further, these employees were not discharged.

Justice Madden ruled that assuming that the allegations in Bey's petition were true, it is sufficient to raise the only issue here subject to judicial review pursuant to Article 78 of the Civil Practice Law and Rules: the constitutional claim of selective prosecution.

In making a claim of selective prosecution, the individual alleges that he or she has been denied his or her constitutional right to equal protection of the laws as guaranteed by the 14th Amendment and the New York State Constitution forbidding a public authority from applying or enforcing an admitted valid law "with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circum­stances.

According to the decision, both the "unequal hand" and the "evil eye" requirements must be proven: i.e., there must be not only a showing that the law was not applied to others similarly situated but also "that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some other arbitrary classification."

The court said that Bey's petition alleges that he and his co-correction officers were singled out based upon their race, religion and, or, national origin, because the Correction Department and other City agencies permitted "other employees" who were not "Moorish-American" to change their withholding forms, and no disciplinary charges were filed against them and they were not discharged.

As these allegations were found sufficient to state a cause of action for impermissible discriminatory prosecution, the court dismissed all of Bey's allegations except those dealing with the selective prosecution claim and said that a trial was required to resolve this issue.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2001/2001_30058.pdf