Enlarging the probationary period

Enlarging the probationary period
Caruso v Ward, 546 NYS2d 853

The New York City Police Department decided to change the initial probationary period for police officers from eighteen months to two years. The Union challenged the decision and asked the Courts to annul the change.

The Appellate Division sustained the Department’s changing the term of the probationary period for newly appointed police officers, citing a number of reasons for its ruling.

The Court said that the Union:

(1) had failed to show that it had a clear legal right to the relief it sought [reversion to the 18 month probationary period] and

(2) it did not present any evidence of bad faith, illegality or arbitrary action by the Department in extending the maximum period of probation for new appointees to the force.

The Appellate Division then said that “the decision to enlarge the probationary period was rationally related to the goal of more thorough evaluation of [a] new officers’ fitness for duty” and denied the union’s appeal.

Employee’s “informal” comment that he or she “may need FMLA leave” may not be sufficient to trigger FMLA protections

Employee’s “informal” comment that he or she “may need FMLA leave” may not be sufficient to trigger FMLA protections
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2011. 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.

Upon learning that his wife was pregnancy and due in early 2008, Chad Wilson told his supervisor that he might need to take leave to care for his newborn if his mother-in-law was unavailable. Wilson was subsequently terminated for dismissing his supervisor's concerns about Wilson’s failure to follow the chain of command regarding a pay issue.

Wilson sued alleging that his termination was in retaliation for exercising FMLA rights. He argued that he engaged in FMLA-protected activity by requesting leave to care for his child. The FMLA provides that an employee must "provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave" [29 CFR 825.302(c)].

The Fifth Circuit found that Wilson failed to provide adequate notice of the need for FMLA leave. Wilson, the Court observed, " never informed Noble that he intended to take leave, only that he "might" need to take leave and that there was a "possibility" that he would need to take leave." The Court held that these comments were insufficient to make his employer aware that he needed FMLA-qualifying leave.

The Court also found that Wilson failed to notify his employer of the "anticipated timing and duration" of any leave. Wilson conceded that he did not get into any specifics as to who, what, when, or where of the leave. Telling his supervisor that he "might" need to take leave "early in the year after the baby was here" failed to inform the employer of the anticipated timing and duration of the leave, the Court held.

The Court held that Wilson failed to establish that his removal was in retaliation for requesting FMLA leave.

Wilson v. Noble Drilling Service, Inc., 10-20129 (5th Cir. Dec. 23, 2010)

Mr. Bosland Comments: While employees need not invoke the FMLA by name when requesting leave, they must provide their employer with sufficient information to alert the employer that FMLA leave may be needed.

Telling an employer that you "might" or "possibly" may need FMLA leave, even for an FMLA-qualifying reason, is not sufficient. To be a valid request, courts also want more specificity in terms of the timing and duration of the leave. Employees do not invoke the protections of the FMLA by telling your employer that you may need leave at unknown time in the future.

To invoke the FMLA, employees need to provide more specifics, not less, when requesting leave.

Added to NYPPL’s sidebar of Lawblogs

Added to NYPPL’s sidebar of Lawblogs

New York City Employment Lawyer has been added to NYPPL's listing of "Links to Other Useful Web Pages".

Focusing on “Employment Law for Attorneys, Employees, and the General Public” and authored by Josh Bernstein, Esq., the Internet address of this LawBlog is: http://jbernsteinpc.com/blog/

Mr. Bernstein's recent posts include the following:

Employee Tip of the Week: Take Your Personal Property With You

Toyota Whistleblower Slammed With $2.6 Million Dollar Arbitration Verdict For Disclosing Confidential Documents

Employee Tip of the Week: Be Direct, and Be Clear

Employee Tip of the Week: Make a Record

The New York City Human Rights Law’s Canon of Liberal Construction

Duties of the position assigned to employees in a different negotiating unit following the abolishment of the position

Duties of the position assigned to employees in a different negotiating unit following the abolishment of the position
CSEA Orange County Local 836 v PERB, 273 A.D.2d 626

The Local 836 case concerns an employee organization’s right to negotiate the impact of a legislative body’s eliminating a certain position and the duties previously performed by incumbent of the abolished position are to be performed by an employee in another collective bargaining unit.

On December 31, 1994, the Newburgh City Council eliminated positions of animal control officer for budgetary reasons. These positions were in the negotiating unit represented by CSEA Orange County Local 836. The City reassigned the duties being performed by the former incumbents of the abolished positions to uniformed City police officers -- who were in a different collective bargaining unit.

Local 836 filed charges alleging that the City committed an improper employer practice when it assigned the duties previously performed by the animal control officers to non-unit police officers. Ultimately, PERB said that the transfer of the work from the animal control officers to police officers necessarily resulted in a significant change in qualifications and that the propriety of the transfer was therefore to be determined under the balancing test set out in its ruling in Matter of the Niagara Frontier Transportation Authority, 18 PERB 3083.

After applying the Niagara test, PERB held that when weighed against a mere loss of unit work, Newburgh’s managerial concerns clearly prevail and thus the transfer of duties was not a mandatory subject of collective bargaining. Accordingly, Newburgh was not required to negotiate its decision to transfer “unit work” and PERB dismissed the charge. The Appellate Division affirmed PERB’s determination.

The court said that because of the special employment qualifications required of, and possessed by, police officers and firefighters, the substitution of civilian employees for uniformed officers would of itself constitute a substantial change in job qualifications. It necessarily follows that the converse is true and that a substitution of police officers for civilian employees will also involve the requisite significant change.

The Appellate Division ruled that PERB rationally concluded that the transfer of job functions from civilian to uniformed employees effected a significant change in job qualifications without reference to the actual duties performed by the two classes of employees.

As to the balancing test applied by PERB, the court agreed with view expressed by PERB that because the animal control officer positions had been previously eliminated as the result of the City’s legislative action, the loss of those jobs was not a factor that entered into the test.

Accordingly, the loss of the jobs in the unit represented by Local 836 was not a consequence that flowed from the City’s reassignment of the non-emergency animal control duties to the police, it is the action that precipitated the assignment of unit work to non-unit employees.

The court’s conclusion: The loss of jobs under such circumstances cannot be a part of the balancing test to determine whether the City’ s action in transferring the unit work to nonunit employees violated the [Public Employees’ Fair Employment Act (Civil Service Law Article 14) because it did not occur as a result of the transfer of unit duties and thus the impact of this change was not a mandatory subject of collective bargaining.

What is the balancing test scenario used in situations involving the type unilateral transfer of unit work referred to in the Newburgh case?

First there must a determination as to whether the work been performed by unit employees exclusively and, second, a determination as to whether the reassigned tasks substantially similar to those previously performed by unit employees.

If the answer to both of these questions is yes, there has been a violation of Article 14 unless the qualifications for the job have been changed significantly.

If there is no such change in the qualifications for the position, the loss of unit work to the group is sufficient a detriment to support a finding of a violation.

If, however, there has been a significant change in the job qualifications and the change has not been mandated by the appropriate legislative body, then a balancing test is used and the respective interests of the public employer and the unit employees, both individually and collectively, must be weighed against each other.

Unemployment insurance and Section 75 disciplinary finding

Unemployment insurance and Section 75 disciplinary finding
Dimps v NYC Human Resources Administration, 274 A.D.2d 625

Dimps had been found guilty of 12 of 20 specifications of misconduct by an administrative law judge [ALJ] following a disciplinary hearing pursuant to Section 75 of the Civil Service Law.

The ALJ recommended that Dimps be dismissed and HRA adopted the hearing officer’s findings and recommendation regarding the penalty to be imposed. The New York City Civil Service Commission affirmed HRA’s Section 75 determination and the penalty imposed.

Dimps then applied for unemployment insurance benefits, which were denied on the ground that her employment was terminated due to her misconduct. A hearing was scheduled and an Unemployment Insurance Administrative Law Judge allowed Dimps to explain nine of the specifications on which she was found guilty.

HRA objected, contending that the doctrine of collateral estoppel should apply to the findings of fact made at the disciplinary hearing with respect to Dimps’ appeal of her disqualification for unemployment benefits.

Ultimately the ALJ agreed with HRA’s argument and did not consider Dimps’ explanation in making his determination. The ALJ ruled that Dimps was ineligible for unemployment insurance benefits because she had been terminated for misconduct.

The Unemployment Insurance Appeals Board ruled that Shirley Dimps was disqualified for unemployment insurance benefits because she had been terminated for misconduct. Dimps appealed the Board’s decision to the Appellate Division.

Was the application of the doctrine of collateral estoppel appropriate in Dimps’ case before the Unemployment Insurance Appeals Board? The Appellate Division, Third Department, ruled that it was and dismissed Dimps’ appeal.

In the words of the Appellate Division:

... inasmuch as claimant was given a full and fair opportunity to litigate the issue of misconduct at the disciplinary hearing, the ALJ at the unemployment insurance hearing properly accorded collateral estoppel effect to the ensuing factual findings.

The court noted that at the disciplinary hearing, Dimps was represented by counsel, testified on her own behalf, cross-examined the employer’s witnesses and had the opportunity to present and examine relevant evidence.

As an alternative, Dimps argued that the Unemployment Insurance Board’s determination was not supported by substantial evidence. The Appellate Division said that it found to the contrary and that there was substantial evidence supporting the Board’s determination that Dimps committed disqualifying misconduct, i.e., she continuously refused to abide by reasonable directives of her supervisor....