Class actions challenging administrative decisions

Class actions challenging administrative decisions
Holcomb v Westchester County, 255 AD2d 383

“Class action” relief is rare in the public sector because courts have traditionally viewed expanding the “plaintiff class” to all members of a certain group unnecessary due to the legal principle called stare decisis (to abide by past decisions).

Stare decisis is the judicial doctrine that once a court has laid down a principle of law applicable to a certain set of facts, that principle will be applied in future cases involving the same facts. For example, if a public employee wins the right to overtime as a result of a court’s interpretation the Civil Service Law, all similar situated public employees would have an identical right to overtime under stare decisis.*

However, there can be exceptions to this general rule about the inappropriateness of class actions by public employees. The Appellate Division’s consolidated decision in Holcomb and Hetherington cases illustrate such an exception.

Michael Holcomb and Helen E. Hetherington sued Westchester County, contending that their positions were improperly abolished by the county. They argued that because the County Board of Legislators had not amended the county’s budget to reflect the abolishment of their positions, their positions could not be abolished by “administrative action” taken by the County Executive.**

Holcomb and Hetherington also asked for “class certification” in order to include some 300 other Westchester County employees whom they claimed had also been unlawfully terminated when their positions were abolished by “administrative action.” A state Supreme Court justice granted their motion for class certification, and the county appealed.

The county argued that class certification was unnecessary under stare decisis; the final determination in a court proceeding involving a governmental operation would be controlling in future litigation involving the same issue.

The Appellate Division disagreed with county and upheld the Supreme Court’s determination. The Appellate panel said the Supreme Court did not abuse its discretion because consolidating claims into a class action was a less cumbersome way for the courts to handle these claims as the 300 potential litigants were only seeking “relative small sums of damages” and were clearly part of a “large, readily definable class.”

Further, court observed that the central issue -- whether the county legislature’s failure to amend the budget meant that positions were improperly abolished -- was appropriate for class-based consideration.

* Typically the doctrine of stare decisis is not applied in arbitrations. For example, City School District of Tonawanda v Tonawanda Education Association, 63 NY2d 846, involved a situation in which the same facts considered by two different arbitrators but involving two different employees produced different results. The school district had made layoff decisions that adversely impacted on two employees. Both individuals grieved. The grievances were considered by two different arbitrators. The first arbitration decision handed down ruled in favor of the employer while in the second case, heard by a different arbitrator and handed down after the first arbitrator had made a ruling, the employee prevailed. The school district claimed that the first arbitrator's decision should be adopted by the second arbitrator since the same facts were involved and thus the second arbitrator was bound by the first arbitrator's findings. The Court of Appeals rejected Tonawanda's theory, holding that both arbitration decisions were to stand.

N.B. Would Tonawanda have been disposed to argue that the second arbitrator was bound by the first arbitrator's award had it gone the other way? It is prudent to consider the future impact of an instant position under alternate circumstances in such situations.

** Holcomb and Hetherington appear to be arguing that the Doctrine of Legislative Equivalency, i.e., “a position created by a legislative act can only be abolished by a correlative legislative act,” controls in this action [see Matter of Torre v County of Nassau, 86 NY2d 421].
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Discontinuing workers’ compensation benefits

Discontinuing workers’ compensation benefits
Waters v City of New York, 256 AD2d 680

Sometimes an individual who is receiving workers’ compensation benefits will seek damages from a third party alleged to have caused his or her injury while on the job.

However, an “unauthorized settlement” could jeopardize an employer’s right to recoup benefit payments for which it is, or may become, liable. Therefore, the employer or its insurer must consent to any third party settlement. The failure of the employee to obtain this consent generally results in his or her workers’ compensation benefits being discontinued. However, there may be exceptions to this general rule, as the Waters case demonstrates.

Mary Waters was injured in an automobile accident in the course of her employment. She applied for, and was granted, workers’ compensation benefits based on a finding that she had suffered “a 10% schedule loss of the use of her left leg.”

Waters subsequently “commenced a third party action” against the owner/driver of the automobile and obtained a $5,000 settlement. However, because Waters had not obtained the city’s consent [New York City self-insures itself for workers’ compensation] the Workers’ Compensation Board affirmed the discontinuation of her “scheduled loss award.”

The Appellate Division was troubled by this result, however, commenting that in deciding a nearly identical case, the board had applied an exception to this rule.

In UHS Home Attendants, WCB 08916873, the board held that a claimant who was granted a scheduled award of 30% permanent loss of the use of her left leg “was not precluded from continuing to receive benefits even though she failed to obtain the consent of [UHS Home Attendants’] compensation insurance carrier to her settlement of her third-party action in which she had received $6,010.”

The court ruled that “given the factual similarities in the current case” to those present in the UHS Home case, it was incumbent on the board to either (1) follow the precedent established by its decision in UHS Home Attendants or “provide an explanation for its failure to do so.” Accordingly, the Appellate Division remanded [returned] the case to the board for its further consideration.
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Two-year suspension without pay imposed on teacher found guilty of “immoral conduct”

Two-year suspension without pay imposed on teacher found guilty of “immoral conduct”
Decisions of the Commissioner of Education 14025

New York City School teacher Norman P. Kaminowitz was found guilty of charges that he had sexually abused students, having “engaged in a continuing pattern of making inappropriate remarks, and otherwise engaged in immoral conduct.”

Kaminowitz, among other things, was alleged to have sat next to a student and rubbed her leg with his “in a suggestive manner” and touched a student with his hand “at or near her genital area.”

Concluding that Kaminowitz’s conduct constituted “neglect of duty, incapacity to teach and immoral conduct,” the hearing panel unanimously recommended that he be suspended for two years without pay. The City Board of Education appealed, asking the Commissioner to substitute his judgment for that to the panel with respect to the penalty imposed and authorize it to dismiss Kaminowitz.

Kaminowitz also appealed, asking the Commissioner to overturn the panel’s determination on the grounds that the evidence at the hearing did not support such a finding. In the alternative, Kaminowitz asked the Commissioner to reduce the penalty imposed on the grounds that it was “disproportionate to the offense.”

The Commissioner said that Kaminowitz’s conduct “is disgraceful and cannot be condoned.” He declined, however, to change the penalty imposed by the panel “based on the record as a whole.”

Among the factors cited by the Commissioner in support of his determinations were the following:

(a) [T]he only “blemish” in Kaminowitz’s 25-year teaching career prior to these incidents “appears to be the warning given to him by his building principal ten years before” and no charges were filed at that time; and

(b) [T]here were no indications of any other warnings by his current supervisors, or any history of complaints in the record.

The Commissioner said that a two-year suspension without pay was proportionate to the offense and “sufficient to impress upon [Kaminowitz] that the behavior for which he was found guilty is completely unacceptable and must not be repeated.
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Social Media - its use by employers in pre-employment, employment and post-employment situations

Social Media - its use by employers in pre-employment, employment and post-employment situations
Source: Article by Eileen Morgan Johnson, Esq. of Whiteford, Taylor Preston [emjohnson@wtplaw.com ]. Copyright 2010 Eileen Morgan Johnson, All rights reserved.

Part I - Social Media and Pre-employment Situations
Part II - Social Media and the Workplace
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Part I

The use of social media in pre-employment situations

Pre-employment screening

Employers are taking advantage of the free information on social media websites and communication tools to screen applicants or to perform pre-offer due diligence on successful applicants. It's not just people in their 20's and 30's who have online profiles and the use of social media by human resource professionals is not a passing fad.

There are a variety of resources that can be consulted such as LinkedIn®, MySpace™ and Facebook. Users of these three sites create an individual profile that can include information about their work history, extracurricular activities, and contacts. Other sites such as Twitter™ and YouTube can also yield information on applicants that might be valuable in making a decision to extend or withhold an offer of employment. For those employers who are unsure about using social media sites, a simple search using Google™ or some other search engine can also yield potentially interesting information.

What are employers looking for? Social media profiles can provide a lot of valuable information. While an employer should not rely solely on these sites to verify information on employment applications, they can be used to discredit applicants or to provide another view of the person behind the resume or online application. Online profiles can provide information on the person's:

Professional credentials
Career objectivesMaturity and judgment
Abuse of drugs or alcohol
Current employment status

Red flags

A June 2009 CareerBuilder survey of 2,600 hiring managers found that 45% of them use social media in the hiring process. That was double the number of hiring managers that reported such use in 2008. What's more, 11% planned to start using social media for prescreening. Eighteen percent or almost one in five hiring managers surveyed reported finding information online that encouraged them to hire candidates:

Profile - good feel for personality and "fit"- 50%
Profile supported professional qualifications - 39%
Candidate was creative - 38%
Solid communication skills - 35%
Candidate well rounded - 33%
Good references posted by others - 19%
Candidate received awards - 15%

However, twice as many (35%) hiring managers reported finding information that led them to not hire a candidate, including:

Inappropriate photos or postings

- 53%Postings on drinking or drug use
- 44%Bad-mouthing previous employer, co-workers or clients
- 35%Poor communication skills
- 29%Discriminatory comments
- 26%Lied about qualifications
- 24%Shared confidential information from previous employer - 20%

Potential pitfalls of screening

Screening with social media has some drawbacks. It can provide too much information about job applicants, including some information that cannot be considered in the employment decision. Some online content can be questionable in terms of its origin or truthfulness. Moreover, some employers are concerned about invading applicants' privacy.

Too much informationCertain information that can be found in an applicant's online profile cannot be used as the basis for an employment decision. These include information on the applicant's race, religion, national origin, age, pregnancy status, marital status, disability, sexual orientation (some state and local jurisdictions), gender expression or identity (some state and local jurisdictions) and genetic information. While it is best to avoid obtaining or even seeing this information, it is often prominently displayed on social networking profiles.

A potential solution is to assign one person to review the social media sites who is not part of the decision making process. That person should filter out any information regarding membership in a protected class and only pass on information that may be considered in the hiring process. The most fundamental way to protect against discrimination claims in using information gleaned from social media sites in the employment decision process is consistency. Employers should keep records of information reviewed and used in any employment decision.

Quality of information

Online information is not always reliable. The first rule is to make sure that the person whose profile you are viewing is actually your job applicant. It is not unusual for people to have similar names or even the same name. If you have confirmed the identity of the applicant, keep in mind that there is a possibility that not all of the information in the profile is correct. Profile information might have been deliberately falsified by the applicant or a friend or significant other with access to the profile login information.

Employers should also recognize that any site provides a limited picture of the individual. Remember the intended audience. On sites like LinkedIn, the intended audience is other professionals. However, on Facebook and MySpace, profiles are often developed for close friends and family. And some people enjoy creating a new persona for their online life, one that has no relationship to who they are in real life.

Invasion of privacy

Employers have little risk that viewing applicants' profiles, blogs or other online postings will give rise to invasion of privacy claims. Users of social networking sites usually have the option to set privacy settings on their personal pages. Their personal pages can be available to any user of the network, or can be restricted to only individuals authorized by the user. A critical question to ask in evaluating an invasion of privacy claim is whether there was a reasonable expectation of privacy. To avoid the potential for liability, employers should avoid attempts at circumventing the privacy settings put in place by users. Only view information that is readily accessible and intended for public viewing.

Google™ and other search engines

In a recent Monster.com report, 77% of employers surveyed reported performing a "Google" search on job applicants. Google is popular for the amount of information that can be discovered and the ease of use. In addition to the concern noted above that a Google search might return too much information, there are additional concerns about the quality of the information retrieved. The breadth of information that a Google search can produce has its own drawbacks including difficulty in identifying sources of search results.

As of now, employers are unlikely to incur liability based on Google searches of job applicants. To further protect against liability, employers should be consistent in their search practices, recognize the limits of online searches, and be sure the information they find actually relates to their applicants.

Current law on reviewing social media sites

There are no court decisions yet imposing liability for an employer's review of a social networking site in the pre-employment context. This is not a guarantee that such liability will not be imposed in the future. For now, the potential for liability is minimal in the absence of misconduct or discrimination by the employer. The potential for liability can be further reduced by:

- Being consistent in prescreening all applicants for certain positions or only those already selected for interviews
- Having someone other than the decision maker filter out protected class information if possible
- Keeping records of the basis for each employment decision
- Not circumventing privacy settings established on applicants' networking sites

If employers have any questions about whether information found through pre-employment screening should be used in the decision making process, they should consult employment counsel before using that information.

Part II - Social Media in the Workplace

The use of social media in employment and post-employment situations.

Social media is changing communications between employers and employees and among co-workers.

Employee communications

The employee newsletter is out and the company Facebook group is in. Employees of the 21st century want a different relationship with their employer and co-workers than that of prior generations. They are used to receiving information that is current and relevant to them, and they expect the same ability to preselect and customize the information they receive in the workplace. Employees want to be able to ask questions and provide feedback to management. With more employees teleworking or working from multiple locations, they want the ability to communicate with their co-workers. Today's workers like to create their own news in their personal lives and share it with others electronically, and they expect to be able to do the same with their work lives.

The International Association of Business Communicators Research Foundation & Bucks Consultants surveyed 1,500 employers in June 2009. An astonishing 97% of the employers said that they frequently use social media to communicate with their employees. Of these, 19% reported occasional use, with only 1% reporting that they used social media rarely or never. Whether by company emails, an intranet website, Facebook group or other tools, clearly social media have become critical to employer/employee communications.

Social media usage policies

Just as employers adopted Internet and computer use policies in the 1990's, now they are developing social media usage policies. These policies can be part of the company's electronic communications usage policy or a stand-alone policy. The key to an effective social media usage policy is frequent adaptation to new technologies and programs, new legal requirements related to both technology and the workplace, and communication with employees.

Distractions and productivity

Employers worry about lost employee productivity due to the distractions of social media in the workplace. The temptations to communicate with their friends and family members are everywhere. Text messaging, cell phones and instant messaging provide near instantaneous dialogue which can be more interesting than the daily work assignments.

Twitter feeds and other alerts are used to notify blog followers when a new posting has been added. Younger workers are used to multitasking. They made their way through high school and college with laptops, iPods, and cell phones, and can write a paper, text a friend, and download music simultaneously while watching television and talking with friends. They want their work lives to function the same way their personal lives do with constant stimulation and communication.

Do employers have the right to force their employees to focus on the task at hand and not use social media while at work? The courts are still working that issue out, but at least one federal court has suggested that employers might have the right to prevent employees from accessing blogs while at work. Nickolas v. Fletcher, 2007 U.S. Dist. Lexis 23843 (E.D. Ky. 2007).

Monitoring

An employer might want to monitor its employees' online conduct while at work. The argument goes something like this: "The employee is on my time, in my facility, and using my computer equipment. Why shouldn't I be able to monitor what's going on?"

Any monitoring should be done with care. In Pietrylo v. Hillstone Restaurant Group, 2008 WL 6085437 (D.N.J. 2008), a Newark jury found that the employer violated the federal Stored Communications Act by secretly monitoring employees' postings on a private password-protected Internet chat room. This followed an earlier case, Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), where the court also held that secret monitoring by an employer of a password protected website visited by an employee while at work violated the federal Stored Communications Act.

However, earlier this year, the U.S. Supreme Court unanimously held that a public employer's review of an employee's text messages on an employer-issued device was a reasonable search under the Fourth Amendment. City of Ontario v. Quon, No. 08-1332, 560 U.S. ___ (2010). This case involved the use of a pager issued to the employee by the employer. The employer authorized a set number of text messages per month and allowed employees to pay for any overage. Employees were not prohibited from using the pager to send and receive personal text messages. The employer noticed that one employee had an excessive number of text messages and asked its service provider for copies of the text messages from that employee's phone. It found messages to the employee's wife and girlfriend. The employee claimed that his privacy had been violated. The lower court had held that the service provider violated the Stored Communications Act when it provided the employee's text messages to the employer. The Supreme Court reversed, holding that the employer had a right to see text messages sent and received on the employer's pager. While this case involved a public employer (and courts have typically allowed greater employer control of public employees), the court clearly stated that employees do not have an expectation of privacy when using equipment provided by the employer.

Other Worries

Employers have more serious potential issues than lost productivity to worry about. Social media tools present an easy method of accessing and communicating information. This can include the unauthorized disclosure of confidential information. While the concerns about unauthorized disclosure using social media tools are similar to unauthorized disclosure in more traditional ways, now the disclosure is at the click of a mouse to multiple recipients. Unauthorized disclosure can include the business plans and information of clients as well as those of the employer.

Unfortunately, social media tools can also be used to harass co-workers. What might be a harmless exchange of jokes or photos between friends can take on a new life when they are spread around the office. The seemingly innocent friend request on Facebook from a co-worker can take on new meaning. How does a female employee respond to a "friend" request from her male supervisor?

The technology behind social media presents another new challenge to employers, the inability to effectively respond to misinformation. A fleeting complaint lingers forever and can be accessed or rebroadcast by other employees or those outside of the company. Information remains in cyberspace indefinitely. The employer's response to misinformation or even a later retraction by the defaming party is unlikely to reach all who received the initial communication. Any communication issued by an employee is seemingly valid, even when the employee is a self-appointed company "spokesperson."

Employers might consider charging employees who misuse social media at the workplace with using company equipment inappropriately and follow appropriate disciplinary measures. The social media usage policy should provide for discipline for abuse of the policy and explicitly state that social media may not be used to violate other employer policies, including harassment and non-discrimination policies.

Internal investigations

In a June 2009 survey, Proofpoint asked US employers to report on internal investigations at their companies in the past 12 months. The results of the survey show that employers do have a reason to be concerned about leaks of confidential or proprietary information. Employers reported conducting investigations of leaks by:

Email - 43%
Blog or message board - 18%
Video - 18%Facebook and
LinkedIn - 17%Twitter or SMS texts - 13%

The same employers also reported on the results of their investigations, with a substantial number finding violations of company policies. The rates of employees disciplined or terminated for policy violations were:

Email - 31% terminated
Blog or message board - 17% disciplined, 9% terminated
Video - 15% disciplined, 8% terminated
Social networks - 8% terminated
Twitter/SMS texts - no reported actions

Employer responses

Employers can take a number of measures to reduce the problems that can arise from the use or misuse of social media. As a first step, employers should remind their employees that they have no expectation of privacy when using the employer's electronic equipment or network. This includes employer supplied smart phones, voice mail, and email. Next, employers should review and update as necessary their Internet usage policies to include the use of social media and clearly state what employee actions will result in discipline or even termination.

To address the potential misuse of social media, a social media usage policy should prohibit the use of the employer's name by employees outside of official company communications. The policy also should discipline employees for posting any negative statements about the employer or any derogatory comments about the employee's co-workers or supervisors.

Whether it is two pizza parlor employees abusing food for their YouTube video or anonymous misstatements on a blog about a company's products or services, an employer's reputation can be easily and speedily damaged through the misuse of social media tools. Postings favoring the employer's competitors or slamming its customers, or, in the case of associations, its members, can also be detrimental and the intentional disclosure of confidential employer information can be devastating.

Employer social media policies should prohibit:Disclosure of confidential employer information

Discrimination against or harassment of co-workersUsing the employer's trademarks Infringing the intellectual property rights of othersMaking statements adverse to the employer's business interests or reputationCriticism of customers or business partnersStatements supporting competitorsObscenity

Legal limitations

Multijurisdictional employers may face inconsistent laws when trying to establish uniform policies for their employees. Some states prohibit an employer from acting with respect to employee activity that is not related to the employer or is not on working time. In addition, there are laws that protect concerted activity by employees - the protected right of employees to discuss common issues related to the workplace (these are the laws protecting labor unions). There are also laws that protect complaints related to the violation of workplace laws such as state and federal whistleblower laws. However, employees do not have a right to engage in activity injurious to the employer that does not fall within these limited exceptions. Employers should consult with counsel before establishing policies or taking steps to address the misuse of social media by their employees.

Off- duty conduct

Employers can tread over the line when they attempt to discipline employees for their off-duty conduct. Many states have off-duty conduct laws that prohibit employers from basing employment decisions on legal activities of employees outside of work time. Employers need to be aware of the state laws applicable to each of the jurisdictions where their employees are located to avoid violating these laws.

Postings complaining about the employee's work, the employer, supervisors, or co-workers or postings critical of the employer's product or service can be grounds for disciplinary action up to and including termination. For example, a teacher who was fired for an inappropriate MySpace page sued the employer and lost in Spanierman v. Hughes, 576 F. Supp. 2d 292 (D. Conn. 2008). Even when the conduct does not rise to the level of disciplinary action, it can cause the employer to question the employee's maturity or judgment.

Post-employment

Former employees who left on their own or maintain a positive relationship with their former employer, supervisor and co-workers rarely raise concerns about the potential for harm to the employer through their online activities. However, the disgruntled former employee is a different story. Just as they are not concerned about the bridges they burn, these employees are not worried about the potential consequences of the statements they publish online or their tweets about their former employer, supervisor and even co-workers. The potential for a defamation claim against the former employee can be great. Alas, the opportunity to collect damages is not great.

Some employers have a real concern that confidential information will be released by disgruntled former employees. Requiring employees with access to confidential information, as a condition of employment, to sign a confidentiality and nondisclosure agreement which remains in effect following the termination of the employment relationship is one way to address this potential problem.

Social media non-compete

Employers who sanction employee blogs, Facebook groups, Twitter accounts, and other means of communicating through social media often do not think through the consequences of setting up these accounts with one employee as the face of the company.

What happens when the employee who has been regularly posting blogs on behalf of the company decides to leave? Who owns the profile? Who owns the content? More importantly, who owns the followers? Even if the now former employee does not object to the employer taking over his blog, what if the employer does not have the login name and password?
To address these issues, savvy employers are having their employees sign social media non-competition agreements. Under these social media non-competes, the profile, content and followers of a blog or other communication tool belong to the employer. These agreements are more akin to a non-solicitation agreement than a traditional non-compete.

They are difficult (if not impossible) to enforce but they clearly define the intent of the parties if the employer sees litigation (or alternative dispute resolution) as a necessary step to protect its brand or marketing position.

Conclusion

The now widespread use of social media in and outside of the workplace is not the end of the world as we know it. True, the situations employers can face are different, and small problems can very quickly magnify and multiply. But the sensible employer will respond appropriately, working with its employees to identify appropriate social media usage policies and exploiting the communication benefits that social media can bring to the workplace of the 21st century.

Eileen Morgan JohnsonCounselWhiteford, Taylor & Preston, L.L.P.3190 Fairview Park Drive, Suite 300 Falls Church, VA 22042t: 703-280-9271 f: 703-280-8947 m: 202-615-0894 emjohnson@wtplaw.com Bio vCard http://www.wtplaw.com/
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N.B. A relevant item, NY Ethics Committees Tackle Social Media Mining has been posted on Nicole Black's Law Blog Sui Generis--a New York law blog . It addresses the issue of the ethics of attorneys using social media and cites the New York City Bar’s opinion (Formal Opinion 2010-2) Ms. Black can be reached at nblack@nicoleblackesq.com .
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Proposed amendment of 4 NYCRR 73.2 addresses the disqualification of individuals from participating in the New York State Health Insurance Plan

Proposed amendment of 4 NYCRR 73.2 addresses the disqualification of individuals from participating in the New York State Health Insurance Plan Source: NYS Register, November 24, 2010

The New York State Department of Civil Service has proposed amending 4 NYCRR 73.2 with respect to the disqualification of individuals from participating in the New York State Health Insurance Plan (‘‘NYSHIP’’) and receiving NYSHIP benefits

Text of proposed rule: That subdivision (e) of Section 73.2 of Part 73 of the Regulations of the Department of Civil Service (President’s Regulations) is amended to read as follows:

(e) Disqualification. The president may disqualify from participation in the health insurance plan and from receiving benefits thereunder any employee or retired employee or dependent of an employee or retired employee who has secured or attempted to secure participation in the health insurance plan or benefits under the plan for himself or another by fraud, deception or a false statement of a material fact, or who has accepted benefits for himself or another knowing he was not entitled thereto. No person shall be disqualified or denied benefits pursuant to this subdivision unless he is first given a written statement of the reasons therefor and afforded an opportunity to make an explanation and submit facts in opposition to such action. Such employee, retired employee or dependent of an employee or retired employee may be restored to eligibility for coverage under the plan only on approval of the president and subject to such conditions as may be imposed by the president, including repayment of sums expended for benefits obtained by fraud, deception or false statement of a material fact, or accepted by the employee with knowledge that he was not entitled thereto.

Public comment will be received until: 45 days after publication of the notice. Data, views or arguments concerning the proposed amendment may be submitted to Judith I. Ratner, Deputy Commissioner and Counsel, NYS Department of Civil Service, Albany, NY 12239, (518) 473-2624, email: judith.ratner@cs.state.ny.us

The text of the proposed amendment and related information is posted on the Internet at:
http://www.dos.state.ny.us/info/register/2010/nov24/pdfs/rules.pdf
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