New York State Comptroller concludes State agencies could save millions by eliminating service contracts

New York State Comptroller concludes State agencies could save millions by eliminating service contracts
Source: Office of the State Comptroller

New York State agencies could save millions of dollars annually by maximizing available revenues and by eliminating unneeded personal and miscellaneous service contracts, according to three audits released on June 30, 2010 by State Comptroller Thomas P. DiNapoli.

The full text of the Comptroller’s press release, including links to the relevant audit reports, is posted on the Internet at:http://www.osc.state.ny.us/press/releases/july10/070110a.htm

Employee’s alerting the employer “after-the-fact” failed to place the employer on notice that the employee may have been seeking FMLA leave

Employee’s alerting the employer “after-the-fact” failed to place the employer on notice that the employee may have been seeking FMLA leave
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.

Joe Lane requested and was granted six months of intermittent FMLA leave to "care for " his mother, who suffered from diabetes, high blood pressure, weight loss, and arthritis. The medical certification he provided established that Lane would use the leave to assist his mother with meals and take her to doctors appointments, which he did without incident for approximately four months. Lane was absent four consecutive days beginning July 23, 2008. In violation of company policy, he did not call in his absences. When contacted, Lane explained that he took the last three consecutive days off because of flooding in the basement of his mother's home where he was staying. The company fired Lane.

Lane sued, alleging that his termination interfered with his FMLA rights as he should have been granted FMLA leave for the three-day period to clean up the flooded basement. He argued that he needed to clean up the basement because the sitting water was a breeding ground for disease that would aggravate his mother's hepatitis. An immediate problem was Lane's concession that he had not previously informed the company that his mother suffered from hepatitis. The company moved for summary judgment, arguing that the absence to clean up the flooded basement was not covered by the FMLA. The court agreed with the company.

The court initially noted that the absence to clean up the flooded basement fell outside the parameters of his approved certification for FMLA leave to provide his mother meals and take her to doctor's appointments. The court further noted that Lane had failed to offer evidence establishing that cleaning his mother's flooded basement fell with the FMLA's definition of "needed to care for" a covered family member due to a serious health condition. He did not offer evidence to back up his claim that his mother suffered from hepatitis, how such a condition constituted a "serious health condition" within the meaning of the FMLA, or how his mother's hepatitis was in danger of being aggravated if Lane did not immediately clean the flooding. Nor did he establish how cleaning the flooded basement fell within the requirement that physical or psychological care address the basic medical, hygienic, nutritional or safety needs of his mother. 29 CFR 825.124(a).

Finally, the court found that alerting his employer (after-the-fact) that he needed leave to clean his mother's flooded basement failed to place the employer on notice that the employee may have been seeking FMLA leave.

Lane v. Pontiac Osteopathic Hospital, Case No. 09-12634 (E.D. Mich. June 21, 2010).
http://scholar.google.com/scholar_case?case=16361142005570212643&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Mr. Bosland Comments: The decision demonstrates that, while broad, the "caring for" component of FMLA leave is not unlimited. Note the court's interest in the absence of evidence establishing how cleaning the flooded basement "cared for" the mother's condition. Courts have generally favored activities that directly provide care to the seriously ill family member over those, such as in this case, that may only indirectly provide physical or psychological care. Arguably, by cleaning up the mess himself, Lane may have relieved his mother from performing an activity that, with arthritis, she could not perform easily, if at all. He may have also provided her psychological care by relieving her of this responsibility. Sitting water may have presented safety issues as well. Apparently, these arguments were not sufficiently developed for the court.

One could argue that the court's interpretation of "caring for" is overly restrictive. For example, Lane goes over to his mother's home to make her a meal. In addition to providing her with physical care (the meal), he is providing her with psychological care by being with her. While his mother eats he goes down into the basement for something. In so doing, has he lost FMLA protection because he momentarily left the room where his mother is eating? Is physical and psychological care so limited? If Lane made lunch and, while his mother was eating, he slipped out of the house to get the mail from the mailbox at the curb, can he be fired for exceeding his medical certification? What if Lane was taking care of his mother a great distance from where he lived and worked and could not get back to work easily. Do FMLA protections turn on and off like a light switch depending on whether Lane is in the room with his mother? Is that what the FMLA is all about?

At the end of the day, Lane's failure to call-in his absence for four consecutive days without a credible explanation likely doomed his FMLA case.

Is there a right to §207-c benefits if an individual refuses to perform light duty?

Is there a right to §207-c benefits if an individual refuses to perform light duty?
Matter of Park v Kapica, 8 N.Y.3d 302

John Park, a police officer employed by the Town of Greenburgh, underwent surgery in June 2002 after sustaining an injury in the line of duty. He requested, and was approved for, General Municipal Law §207-c(1) benefits.

In March 2003, the Town of Greenburgh’s medical examiner said that Park could return to work in a sedentary capacity. Accordingly, Parks was told to report for light duty starting April 21, 2003.

Park objected and submitted a report from his treating physician indicating that he had a “permanent total disability”* and requested a hearing on the issue of his ability to return to work.

A hearing was scheduled and a hearing officer was designated. Park, however, objected, contending that “any hearing had to be conducted before the Town Board pursuant to the Westchester County Police Act [WCPA].”** Supreme Court denied Park's application to stay the hearing. Park, however, refused to participate and the hearing was held in absentia.

The Hearing Officer concluded that Park (1) was fit to return to light duty, (2) that his refusal to do so was without justification, and (3) that the Town could recoup any §207-c benefits it paid to Park from April 21, 2003 until such time as he returned to work.

Rather than return to work, Park retired on August 26, 2003.

Park then filed a second lawsuit, seeking, among other things, the annulment of the Hearing Officer's determination that the Town could recoup §207-c benefits paid to him.

Supreme Court granted the petition, ruling that the Town had no authority to recoup payments made to Park prior to the Hearing Officer's finding that he was fit for light duty and the Appellate Division affirmed the lower court’s ruling.

Ultimately the Court of Appeals was asked to review these rulings.

The court initially observed that:

1. The continued receipt of §207-c disability payments is not absolute, however. A municipality is entitled to its own medical examination of its employee and if, in that physician's opinion, the officer can perform “specified types of light duty,” payment of the full amount of salary or wages may be discontinued should the officer refuse to return to work if a light-duty assignment “is available and offered to him”

2. The right to receive §207-c disability payments constitutes “a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated,” and a due process hearing is triggered when an officer on §207-c status submits evidence from his treating physician supporting the officer's claim of “continued total disability.”

In response to Park's claim that the Town should have provided for his §207-c hearing in accordance with §7 of the WCPA, the Court of Appeals said that §7 applies to disciplinary actions and because Park was not subject to discipline or to the threat of termination for contesting the medical examiner's light-duty determination, neither it, nor Civil Service Law §75, applied in this situation.

It ruled that the Appellate Division “erred in stating that Civil Service Law §75 should be read in conjunction with General Municipal Law §207-c, a holding that implies that all due process hearings pursuant to §207-c must comply with Civil Service Law §75.”

Such is not the case, said the court. It was only concerned with whether Park was afforded due process in contesting the Town’s medical examiner's determination, which bears no relation to a disciplinary proceeding. However, the court did affirm the Appellate Divisions order “because the procedure employed by the Town concerning Park's challenge to the medical examiner's light-duty determination comported with procedural due process.”

In the absence of a statutory prescription with respect to conducting such hearings or a procedure established by collective bargaining pursuant to the Taylor Law for this purpose, the Court of Appeals said that “the Town was free to fashion a hearing remedy so long as its procedure afforded Park due process.”

Finding that Park's interest in the continued receipt of disability benefits was adequately protected by the Town's due process procedure, the court ruled that while he elected not to participate in the hearing, Park was, nevertheless, given the opportunity to contest the Town’s medical examiner's light-duty determination by presenting his own witnesses and cross-examining the Town's witnesses.

As to the Town’s right to recoup §207-c payments made to Park between April 21, 2003, the date he was initially directed to begin his light-duty assignment, and August 4, 2003, the date he was directed to begin his light-duty assignment after the Hearing Officer affirmed the medical examiner's findings, the Court of Appeals ruled that there was no such right available to the Town.

In the words of the court: “There is no provision in §207-c allowing the recoupment of disability payments made to an officer who is later found to be able to work.”

In contrast, a municipality may discontinue disability payments once its medical examiner finds that the officer can perform a light-duty assignment and the officer “refuse[s] to perform” that duty.” Should an officer refuse to return to work and fail to provide medical proof that he is unable to do so, the medical examiner's opinion is dispositive and §207-c disability payments may be discontinued without a hearing.***

However, a municipality is not permitted to recoup §207-c payments where, as here, the officer avails himself of due process protections by challenging the appointing authority’s medical examiner's determination because such a challenge cannot be equated to his or her refusal to return to duty.

* §207-c(2) provides, in pertinent part, that “Payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to any policeman who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his duties if such policeman is granted an accidental disability retirement … If application for such retirement allowance or pension is not made by such policeman, application therefore may be made by the head of the police force or as otherwise provided by the chief executive officer or local legislative body of the municipality by which such policeman is employed.”

** Section 7 of the Westchester County Police Act, entitled “Discipline and charges,” states that no member of a police department “shall be fined, reprimanded, removed or dismissed” until the charges have been investigated, and further provides that the trial of those charges “shall not be delegated and must be heard by the town board or the full board of police commissioners.”

*** The Court of Appeals noted that its decision was based “solely” on it reading of the applicable statutes and it should not be viewed as suggesting that “there would be any constitutional bar to a recoupment of benefits in a situation like this one, had the Legislature so provided.”

Agreeing to a disciplinary suspension without pay in exchange for a postponement of the scheduled disciplinary hearing

Agreeing to a disciplinary suspension without pay in exchange for a postponement of the scheduled disciplinary hearing
Wachtmeiser v Andrus, App. Div., Third Dept., 279 A.D.2d 822

Clearly an employee against whom disciplinary charges have been filed pursuant to Section 75 of the Civil Service Law may be suspended without pay for up to thirty days pending resolutions of the disciplinary action. If the final determination is not made on or before the thirtieth day, the individual must be restored to the payroll.

In Margaret Wachtmeiser's case, the Clinton County Director of Public Health, John V. Andrus, followed the procedure set out in Section 75. Charges were filed against Wachtmeiser on January 27, 1998 and she was suspended without pay for 30 days in accordance with Section 75(3) of the Civil Service Law. She was restored to the payroll on February 26, 1998.

April 2, 1998, however, Wachtmeiser was again removed from the payroll, this time in accordance with the terms of her signed "release." The release provided that Wachtmeiser agreed to be removed from the Department's payroll pending a final determination of the disciplinary proceeding in exchange for an adjournment of her scheduled hearing.

As the Wachtmeiser decision demonstrates, the employer may remove an individual from the payroll pending a final determination of disciplinary charges in the event the employee elects to postpone the hearing.

If an employee seeks such a postponement, typically he or she will be required stipulate to being removed from the payroll for a period equal to the length of postponement of the hearing he or she requests. In contrast, if the appointing authority seeks to postpone the hearing, it could not condition the adjournment on the removal of the employee from the payroll.

Wachtmeiser, a public health nurse, was charged with, and found guilty of, numerous specifications of misconduct in connection with her performance of her duties. Andrus adopted the hearing officer's findings and imposed the penalty recommended: termination. After being dismissed from her position, Wachtmeiser sued for her back pay for the period she was suspended without pay in excess of thirty days.

The Appellate Division rejected Wachtmeiser's claim for back pay for this period as she had been removed from the payroll consistent with the terms of the "release." It had no difficulty with concept of suspending the employee without pay under such circumstances.

The court also rejected Wachtmeiser's appeal in which she claimed that she was coerced into executing the release, finding that the record fails to substantiate her conclusory allegation on this point.

Further, the court rejected Wachtmeiser's contention that the hearing officer's finding were not supported by substantial evidence, commenting that the record contained testimony provided “painstaking detail regarding each of the specifications of misconduct set forth in charges 1 through 5 [when] coupled with the voluminous documentary evidence [in the record] ... provides overwhelming evidence of [Wachtmeiser's] misconduct.”

Failure to maintain a residence within the employer’s geographic jurisdiction deemed disqualifying misconduct for unemployment insurance purposes

Failure to maintain a residence within the employer’s geographic jurisdiction deemed disqualifying misconduct for unemployment insurance purposes
Matter of Dwaine E. Williams v Commissioner of Labor, 47 AD3d 994

Dwaine E. Williams, a school safety agent with the New York City Police Department for some six years, lived in Westchester County. The City discharged Williams from his position for failing to comply with a provision of the New York City Administrative Code that mandated that he maintain a residence within New York City.

His application for unemployment insurance benefits was rejected on the grounds that his employment was terminated due to misconduct; i.e., failing to comply with his employer’s residency rules.

Finding that City’s residency requirement is a reasonable rule that Williams elected to ignore, the Appellate Division sustained the rejection of Williams’ application for unemployment insurance benefits, holding that "[i]t is well settled that the failure to comply with an employer's reasonable rules can constitute misconduct disqualifying one from receiving unemployment insurance benefits."