Assigning a disabled police officer to a “desk job” held to be a reasonable accommodation

Assigning a disabled police officer to a “desk job” held to be a reasonable accommodation
Keever v Middletown, 145 F.3d 809

According to the U.S. Circuit Court of Appeals, Sixth Circuit, providing a “desk job” as a reasonable accommodation to a disabled police officer satisfied Americans with Disabilities Act [ADA] accommodation requirements despite the fact that the officer preferred a different assignment.

Richard T. Keever, a Middletown, Ohio police officer, contended that the desk assignment was demeaning and involved reduced responsibility. He said that he should have either been given a different shift or assigned to a detective position. He sued, contending claiming that the City failed to accommodate his disability, unlawfully harassed him about his disability, and constructively discharged him from the force by forcing him to retire.

The court disagreed, finding no ADA violation. ADA, the court observed, does not require an employer to give an employee his or her “preferred accommodation.” Under ADA the employer can make any reasonable accommodation it determines to be fit and appropriate.

According to the Sixth Circuit, “in determining whether an accommodation is reasonable, the employer must consider (1) the particular job involved, its purpose, and its essential functions; (2) the employee’s limitations and how those limitations can be overcome; (3) the effectiveness an accommodation would have in enabling the individual to perform the job; and (4) the preference of the employee,” citing 29 CFR Section 1630.9(a).

Essentially the court concluded that Keever was not “otherwise qualified” for the position of patrol officer, that he was not constructively discharged, and that he failed to establish a prima facie case of hostile work environment discrimination.

This ruling, made under federal law, may prove relevant to making “light duty” assignments of personnel receiving disability benefits under Section 207-a or Section 207-c of New York’s General Municipal Law [GML].

As was noted in City of Cohoes v Local 2562, 94 NY2d 686, “light duty” is based on the non-working individual’s medical condition and physical capacity rather than upon any contractual requirement. “GML Section 207-a is properly understood as being independent of contractual provisions governing regular duty, by giving full pay to fully or partially disabled firefighters performing no work or only `light duty.’“

In the words of the Court of Appeals:

"Our conclusion that appellants must submit medical evidence contesting the City's physician's findings in order to trigger a hearing is also supported by the holdings, in other contexts, that due process does not require a hearing on a claimed invasion of a property or liberty interest in governmental employment, until the employee has raised a genuine dispute on operative facts (see, Codd v Velger, 429 US 624, 627; Matter of Economico v Village of Pelham, 50 NY2d 120, 128; Matter of Dolan v Whalen, 49 NY2d 991, 993). Thus, the Appellate Division properly rejected appellants' claim of entitlement to a due process hearing before being ordered to return to duty.”

The Cohoes decision, however, implies that light duty could be viewed as a “permissive subject” of collective bargaining under the Taylor Law and ultimately made subject to arbitration under the terms of the agreement.

State Comptroller’s report of the use of contacts for personal and other services by the NYS Department of Taxation and Finance

State Comptroller’s report of the use of contacts for personal and other services by the NYS Department of Taxation and Finance
Source: Office of the New York State Comptroller Thomas P. DiNapoli

During the three-year audit period, the Department of Taxation and Finance had 81 contracts for personal and miscellaneous services totaling about $563 million. More than 98 percent of this amount related to contracts for either information technology or banking services.

Auditors examined whether the department was adequately justifying the need to initially contract out for such services and periodically reassessing whether such contracts could be deferred, eliminated or reduced to save state funds.

The auditors found that the department was sometimes but not always performing these activities.

The full text of the audit report is posted on the Internet at: http://osc.state.ny.us/audits/allaudits/093010/09s38.pdf

US Department of Labor to conduct Family Medical Leave Act study

US Department of Labor to conduct Family Medical Leave Act study
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 July 21, 2010 Labor Secretary Hilda Solis announced that next year the U.S. Department of Labor will conduct a study of how families use Family Medical Leave Act [FMLA] leave, as well as "information on regulatory changes, among other things."

In the past, DOL studies have been a precursor to regulatory changes. While there is no mandatory format, past FMLA studies have been a combination of surveys of significant FMLA stakeholders combined with public solicitations of comments. Interested parties should take this as a "heads-up" to begin to think about and prepare to address what you like about the current regulatory regime, and what you would like to see changed.

The announcement also suggests that the DOL does not intend on making any regulatory changes before the upcoming mid-term elections this November, something of a surprise (at least to me).

Disciplinary actions held in absentia

Disciplinary actions held in absentia
Clarke v NYC Board of Education, App. Div., 251 A.D.2d 403

No one gave Fernando A. Clarke, a purchasing agent employed by the New York City Board of Education, permission to be absent from his job on February 14, 1994. To make matters worse, he never returned to work and didn’t bother to appear for a scheduled disciplinary hearing.

Clarke was served with charges of AWOL pursuant to Section 75 of the Civil Service Law. Although Clarke did not appear at the scheduled disciplinary hearing, the hearing officer found him guilty of the charges filed against him. The board adopted the findings and recommendations of the disciplinary hearing officer and terminated Clarke from his position.

The Appellate Division dismissed Clarke’s appeal challenging his termination. The court pointed out that Clarke (1) was aware of the time and place of the Section 75 hearing; (2) failed to attend the hearing; or (3) offer any proof on his own behalf.

The decision notes that the only evidence in the disciplinary hearing record was that Clarke had been continuously absent from his position without approval since February 14, 1994 and that he had not provided any satisfactory explanation for this absence. This, said the Appellate Division, was sufficient to provide the substantial evidence needed to support the board’s determination.

This decision demonstrates the fact that an appointing authority may proceed with a disciplinary hearing notwithstanding the fact that the accused employee fails to appear at the proceeding. However, before making a final determination in cases where the Section 75 disciplinary hearing was conducted in absentia, the appointing authority should make certain that:

1. The employee was served with the disciplinary charges and that he or she was advised of the time and place of the hearing;

2. A diligent effort was made to contact the individual on the day of the hearing to determine if there was a reasonable explanation for his or her failure to appear as scheduled before the hearing officer started the hearing;

3. A formal hearing was conducted and that the employer was required to introduce evidence proving its charges before the hearing officer;

4. A formal record of the hearing was made and a transcript provided to the appointing authority and, if requested, to the employee.

Finally, the employee must be advised of the appointing authority’s determination and his or her right of appeal.

Participating in an arbitration

Participating in an arbitration
Elmira Heights CSD v Ed. Support Staff Asso., App Div 250 A.D.2d 983, Motion for leave to appeal denied, 92 N.Y.2d 807

What should a party to an arbitration do if it believes that the controversy to be submitted to the arbitrator is not arbitrable? As the Elmira Heights decision points out, such an objection must be raised by applying for a stay of arbitration or it is waived.

The issue arose after the Elmira Heights Central School District, which was paying the entire cost of its health insurance plan for employees and retirees, negotiated a provision in the Taylor Agreement between the parties, Section 16.1, requiring employees to pay a “percentage of the annual premium for their health insurance coverage.” In contrast, health insurance for employees who retired was covered in another section of the same agreement, Section 16.14. Section 16.14 made no provision for health insurance contributions to be paid by individuals upon their retirement.

In January 1995 the school board adopted a resolution requiring all employees to pay 10 percent of the cost of their health insurance. The superintendent advised all retirees that they, too, would be required to pay 10 percent of the cost of their health insurance. The retirees filed a contract grievance complaining that the imposition of such a payment violated the terms and conditions of Section 16.14.

Ultimately the matter was submitted for arbitration. The arbitrator first found that the grievance was arbitrable. In the arbitration that followed, the arbitrator concluded that the district had violated the agreement when it unilaterally imposed a “co-pay for the health care plan for its retirees.” The district was directed to refund any contributions for premiums made by retirees.

Next the district filed an Article 75 action to vacate the award. Supreme Court granted the district’s petition, finding that the arbitrator “exceeded his authority,” and that the award was contrary to law. The Association appealed the decision. At the Appellate Division the district argued that the retirees were neither members of the negotiating unit nor employees as defined in the collective bargaining agreement and thus the arbitrator exceed his authority in ordering it to refund the retirees’ contributions.

The Appellate Division said that what the district was really arguing was that “the arbitrator did not have the power to decide the question at issue and, therefore, there was nothing to arbitrate.” The court ruled that such an argument cannot be raised in a motion to vacate the arbitration award; it must be raised in a motion to stay the arbitration in the first instance.

As to whether or not the arbitrator exceeded his authority, the decision notes that an arbitrator exceeds his or her power “only if he or she gave a completely irrational construction to the provision in dispute and, in effect, made a new contract for the parties.”

Here, said the court, the agreement provides for employee contributions for health insurance but is silent with respect to such contributions by retirees. The arbitrator considered the parties’ past practice and concluded that the district “inappropriately required its retirees to contribute to the cost of their health care ... a determination ... [the arbitrator] was well within his right to make.”

Pointing out that the fact that a different construction might have been given to Section 16.14 does not mean that the arbitrator rendered a completely irrational interpretation and thereby crafted a new contract for the parties, the Appellate Division denied the district’s application to vacate the award.