Administrative Law Judge examination scheduled

Administrative Law Judge examination scheduled
Source: New York State Department of Civil Service

The New York State Department of Civil Service will hold an examination for Administrative Law Judge, NYS Workers Compensation Board, on February 5, 2011. This is an “SG-28 position, with a starting salary of $86,168.

Appointees working in the five boroughs of New York City or in Nassau, Suffolk, Rockland, or Westchester Counties will receive an additional $3,026 annual “downstate salary adjustment.” Appointees working in Dutchess, Orange, or Putnam Counties will receive an additional $1,513 annual “mid-Hudson salary adjustment.”

A $45 application fee is required.

N.B. The deadline for filing applications is January 3, 2011.

This examination open to all individuals meeting the minimum qualifications set out in the Examination Announcement.

There is an "ONLINE APPLICATION PROCESS" available at http://www.cs.state.ny.us/exams
For additional information, including a description of the duties of the position, and the minimum qualifications for this examination, go to: http://www.cs.state.ny.us/examannouncements/announcements/pdf/25-438.pdf
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Fruits of an undercover investigation used as a basis for disciplinary charges

Fruits of an undercover investigation used as a basis for disciplinary charges
DiGiovanni v Safir277 AD2d 36

May the appointing authority bring disciplinary action against an employee based on information obtained from undercover police officers. As the DiGiovanni decision indicates, such information can serve as a basis for filing disciplinary charges against an individual.

In this instance an undercover police officer and her supervisor testified that George DiGiovanni approached a police decoy and proposed oral sex for a fee.

DiGiovanni, as it turned out, was a New York City police officer. As a result of this episode, he was served with administrative disciplinary charges. The hearing officer found him guilty of soliciting sex and imposed the penalty of dismissal. DiGiovanni appealed only to have the Appellate Division unanimously affirm both the administrative determination that he was guilty of the charges filed against him and penalty imposed.

The Appellate Division decided that the evidence presented at the disciplinary hearing supported the finding that DiGiovanni was guilty of soliciting sex for money from a person believed by him to be a prostitute.

Turning to DiGiovanni’s objection to his being dismissed from his position, the court said that "[g]iven the gravity of the offense and [DiGiovanni’s] prior disciplinary history, the penalty imposed does not shock our conscience."

The court’s reference to DiGiovanni’s prior disciplinary history suggests that the department asked the hearing officer to consider DiGiovanni’s personnel history in determining the penalty to be imposed.

An employee’s personnel records may be considered by a hearing officer when the setting a disciplinary penalty provided the appointing authority has complied with the procedures set out by the Court of Appeals in Bigelow v Village of Gouverneur, 63 NY2d 470. The procedures to be followed in order to satisfy the Bigelow test:

1. The employee must be advised that his or her prior disciplinary record will be considered in setting the penalty to be imposed; and

2. The employee must be given an opportunity to submit a written response to any adverse material contained in the record or offer mitigating circumstances.
NYPPL

Modifying employee work schedules

Modifying employee work schedules
Maineri v Syosset CSD, 276 AD2d 793

Contract grievances involving changing an individual’s work schedule generally are resolved by interpreting the language set out in the collective bargaining agreement. Of equal importance in such situations is whether the contract is silent or sets out exclusions with respect to such changes as the Maineri case demonstrates.

David Maineri sued the Syosset Central School District after the district denied his grievance challenging a change in his working hours. A State Supreme Court justice dismissed his petition and Maineri appealed.

The Appellate Division, Second Department, affirmed the lower court’s ruling. The court said that dispute, which centered on Maineri’s working hours, was covered by the terms and conditions of the parties’ collective bargaining agreement and, therefore there is no further statutory duty to bargain collectively with respect to the matter.

On the merits, the court ruled that “the district did not violate the parties’ collective bargaining agreement by altering [Maineri’s] working hours since the agreement did not establish the his right and entitlement to specific hours of work.” In the words of the court, “in the absence of such entitlement there can be no violation of the contract by the alteration of those hours.”

In addition, the court said that “the school district, as a municipal entity, may not be estopped from changing the [Maineri’s] working hours to correct errors in those hours, since the challenged alteration concerns the performance of a governmental function.”

In another change of work schedule case, In the Arbitration between Sullivan County and Teamsters Local 445, 276 AD2d 861, Appellate Division, Third Department, [Motion for leave to appeal denied, 96 NY2d 703 ], the court overturned an arbitrator’s ruling that Sullivan County had violated the collective bargaining agreement when it unilaterally changed the work schedule of certain employees.

The individuals involved worked 35 hours per week as aides for the County’s Division of Health and Family Services. Their work schedule: Monday through Friday, between the hours of 9:00 A.M. and 5:00 P.M.

In response to a decline in the demand for home health aide services, the County changed all full-time aide positions to part-time positions. The aides filed a contract grievance and the arbitrator ruled that the change from full-time to part-time constituted a violation of the collective bargaining agreement. The arbitrator ordered the County to restore the aides to full-time status [i.e., 35-hours per week] with back pay.

A State Supreme Court judge vacated the award on the grounds that the arbitrator had misread the Taylor Law agreement. The Appellate Division affirmed the lower court’s ruling.

First the Appellate Division noted that judicial review of an arbitration decision is limited and such a decision will not be disturbed unless it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power, citing Matter of the Town of Callicoon, 70 NY2d 907. Here, however, the court concluded that the arbitrator erroneously applied Section 408 of the agreement to the aides’ positions and, therefore, his decision was irrational.

The agreement did, in fact, set out the workday, workweek and overtime for certain workers. The decision notes that Section 401 of the agreement defined the normal work week and indicates that [e]xcept as hereinafter provided, the work week of all employees shall be five (5) days, Monday through Friday, seven (7) hours per day, thirty-five (35) hours per week [and] [t]he hours of employment shall be 9:00 A.M. to 5:00 P.M.

The agreement also sets a 40-hour work week for certain of workers, and further provides that [n]otwithstanding anything to the contrary contained in this Article, employees who work a five (5) day, forty (40) hour week, excluding time off for lunch, Monday through Friday, shall continue [Section 408 of the agreement].

The court said that the aides worked a 35-hour workweek prior to the reduction of their hours. It agreed with the Supreme Court’s conclusion that Section 408 relates only to employees who work 40 hours per week and cannot reasonably be interpreted as applicable to the aides’ positions.

Since there was not other provision in the agreement preventing the County from unilaterally reducing the hours of the aides due to business necessity, the Appellate Division concluded that the arbitrator’s award was properly vacated.

The Appellate Division also commented that:

"Indeed, Section 2502(d) [of the contract] expressly vests [the county] with the authority [t]o relieve employees from duties because of lack of work or other legitimate reason. Taking the above into consideration and applying Section 2103 of the agreement that specifically prohibits modification of its provisions by arbitration, we conclude that Supreme Court properly vacated the award."
NYPPL

Employee disciplined for disruptive behavior alleges charges were based on the employer's perception of a disability

Employee disciplined for disruptive behavior alleges charges were based on the employer's perception of a disability
Robinson v NYS Division of Human Rights, 277 AD2d 76

The appointing authority orders an employee who is exhibiting disruptive behavior to report for a drug test or for a physiological evaluation. Does such a directive constitute unlawful discrimination on the grounds that the employer has a perception that the employee has a disability? Such directives were the basis for New York City corrections officer Michael Robinson filing discrimination complaints against the New York City Department of Corrections.

According to the decision by the Appellate Division, First Department, Michael Robinson had a number of disciplinary problems over a period of time. In 1984 he accepted a command discipline penalty of two pass days for being absent without leave. This disciplinary action was followed by a pattern of lateness, unexcused absences and volatile behavior, including use of excessive force against inmates and verbal abuse of superiors and fellow officers.

Robinson was ordered to submit to urinalysis and to undergo psychiatric evaluation in connection with charges of attendance and conduct deficiencies during 1984 and 1985, as well as the investigation of an automobile accident on December 19, 1984.

As a result, Robinson filed a complaint with the New York State Division of Human Rights [DHR] contending that DOC had discriminated against him on the basis of perceived disabilities. Robinson subsequently filed additional allegations of unlawful discrimination, claiming that DOC had retaliated against him in response to Dorr’s finding of probable cause by first suspending and then terminating him.

The New York State Division of Human Rights found that DOC had unlawfully discriminated against Robinson by creating a hostile work environment based upon a belief that Robinson was mentally unstable or under the influence of drugs. It awarded Robinson $75,000 in compensatory damages and directed DOC to reinstate him to his former position.

Although the Appellate Division vacated Dorr’s decision for technical reasons based on timeliness, it commented that were it to have to decide on the case on its merits, it would find Robinson’s allegations of harassment to be baseless.

The Appellate Division explained that “[t]here is ample evidence of [Robinson’s] erratic and hostile conduct to warrant subjecting him to physical and psychological evaluation.”

The fact the test results were negative were apparently not considered relevant as the court commented that it noted that Robinson’s behavior continued to be erratic.

The court concluded that “considering DOC’s responsibility for the safety of its officers as well as the inmates they oversee and its exposure to liability for any injury that might result ... its precautions cannot be viewed as unreasonable or discriminatory.”
NYPPL

New York State Register

New York State Register
Source: New York State Department of State

The New York State Register provides notice of proposed new administrative rules and amendments to existing administrative rules. It also posts emergency rules and other information.

Also available is the revised Rule Making in New York manual. The manual outlines the procedures for preparation of SAPA notices for the New York State Register and for Filing adopted rules for publication in the official NYCRR. You may download PDF version of the manual by clicking here (218kb 74 pages).

To access the New York State Register on the Internet, go to: http://www.dos.state.ny.us/info/register.htm

The Department of State’s site also provides a fully searchable "rule making" database starting with postings from 2007. Postings are provided in a PDF format.

You may subscribe to a free weekly State Register email alert using a link provided on the site. that will notify subscribers when new postings are available.