Validation requirements for civil service test

Validation requirements for civil service test

Guardians v. Civil Service Commission, 23 FEP Cases 909

The Circuit Court of Appeals for the 2nd Circuit (New York) has rejected a rigid and literal application of the EEOC Guidelines on test validation.

The Court adopted a “functional” approach, holding an acceptable content validation study may consist of a suitable job analysis, reasonably competent examiners, a relationship between the test content and the job and a scoring system which can be used to select from those better able to do the job.

In addition, the Court indicated that permissible use of rank ordering requires a demonstration that the point differences used reflect differences in job performance.

Negotiating job security provisions in the course of collective bargaining

Negotiating job security in the course of collective bargaining

Johnson City Professional Firefighters Local 921, 18 NY3d 32

Frequently an employee organization will attempt to include a “job security provision in the collective bargaining agreement by having a “no layoff” clause in the agreement. The impact of such a provision was considered by the Court of Appeals in the Johnson City Professional Firefighters Local 921 case.

The Village of Johnson City and Johnson City Professional Fire Fighters, Local 921 IAFF executed a collective bargaining agreement (CBA) containing a “no-layoff clause” that provided as follows:

     “A. The Village shall not lay-off any member of the bargaining unit during the term of this contract.

     “B. The Village shall not be required to 'back fill' hire additional members to meet staffing level of expired agreement."

The parties further agreed that disputes concerning the interpretation of this clause, and any other provision of the CBA would ultimately be subject to arbitration before the Public Employment Relations Board (PERB).

When the Village abolished a number of positions, including six firefighter positions due to “budgetary necessity,” the union, pointing to the no-layoff clause, filed a grievance with the Village. The Village denied the grievance and Local 921 sent the Village a notice of its intent to arbitrate. Local 921 then filed a petition seeking a court order barring the Village from terminating the six firefighters pending a determination through arbitration. Simultaneously, the Village brought a proceeding to stay any arbitration.

Supreme Court and the Appellate Division both held that the no-layoff clause was not subject to any prohibition against arbitration and that, given the CBA's broad grievance and arbitration provision, the issue was arbitrable (see 72 AD3d 1235, 1237-1238 [3d Dept 2010]). The Court of Appeals reversed the lower courts’ rulings.

The Court of Appeals agreed with the Village’s contention that the termination of the six fire fighters did not fall within the no-layoff clause and therefore was not arbitrable under the contract. Citing Matter of Board of Educ. of Yonkers City Sch. Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268, the court explained that “Not all job security  clauses are valid and enforceable, nor are they ‘valid and enforceable under all circumstances’"

In Yonkers Fedn. of Teachers, the Court of Appeal held that a "job security clause that provided that "During the life of this contract no person in this bargaining unit shall be terminated due to budgetary reasons or abolition of programs but only for unsatisfactory job performance and provided for under the Tenure Law, was ”explicitin its protection of the [workers] from abolition of their positions due to budgetary stringencies."

In contrast, in Yonkers School Crossing Guard Union of Westchester Ch., CSEA v City of Yonkers [Crossing Guard Union], 39 NY2d 964, the Court of Appeals concluded that the CBA’s clauses providing that "Present members may be removed for cause but will not be removed as a result of Post elimination" did not constitute a "job security" provision similar to those used Yonkers Fedn. of Teachers, and held the language in Crossing Guard Union was ambiguous.

Similarly, in the Local 921 case the Court of Appeals concluded that the no-layoff clause in its CBA was not arbitrable because it was not “explicit, unambiguous and comprehensive.”

The Court of Appeals explained that as a matter of public policy, "job security clauses must meet a stringent test. In the event a municipality bargains away its right to eliminate positions or terminate or lay off workers for budgetary, economic or other reasons, the parties must explicitly agree that the municipality is doing so and the scope of the provision must evidence that intent. Otherwise, said the court, a municipality's budgetary decisions will be routinely challenged by employees, and its ability to abolish positions or terminate workers will be subject to the whim of arbitrators.

The Court of Appeals set out the following three prongs test that must be met in order to demonstrate that the job security  provision in a collective bargaining agreement does not violate public policy.

1. The provision is "explicit;"

2. The CBA extends for a "reasonable period of time;" and

      3.  The CBA was "negotiated in a period of a legislatively declared financial emergency between parties of unequal bargaining power." 

As the clause relied upon by Local 921 did not explicitly protect the firefighters from the abolition of their positions due to economic and budgetary stringencies, the court ruled that it was ambiguous and thus did not constitute an “explicit” provision barring such layoffs.

In the words of the Court of Appeals, “Simply put, because the clause [was] not explicit, unambiguous and comprehensive, there is nothing for the Union to grieve or for an arbitrator to decide. Having concluded that this dispute is not arbitrable for reasons of public policy, we need not reach the issue of whether the parties agreed to arbitrate.”

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Use of section 64(3) of civil service law limited

Use of section 64(3) of civil service law limited

Coxen v. Meyer, 81 A.D.2d 1044

When Suffolk County dismissed its consulting firm supervising the construction of a sewer project, the State and Federal governments threatened to cut off funds unless the County provided for the required supervision of the project.

Using Section 64.3 of the Civil Service Law, the County hired an inspection staff without resorting to available eligible lists which the Court found could have been used for the appointments.

Holding that exceptions to the general civil service policy of filling vacancies in the classified service from appropriate eligible lists is to be strictly construed, the 64.3 appointments were declared unlawful. While 64.3 permits appointments without the use of eligible lists, such appointments are authorized only in exceptional cases.

The provision requires that it would not be practical to hold an examination of any kind to fill the vacancy. The fact that suitable eligible lists were already available was critical as it obviated any argument that it would not be practical to hold the test.

Claim for back pay denied

Claim for back pay denied

Golomb v. Board of Education, 106 Misc. 2d 264, 92 A.D.2d 256

A probationary teacher was terminated by the principal. One year later she was reinstated by the Chancellor of the Board of Education, City of New York because he did not agree with the recommendation to terminate.

The teacher then sued for back salary.

The Court denied the award of back pay stating that the teacher “has no basis for her claim to entitlement of back pay upon her reinstatement...An employee who has not worked has not delivered consideration for the payment of wages. Thus in the absence of a statute requiring the payment of back pay upon reinstatement, a public body is not required to pay back wages since such a payment would be an unconstitutional gift of funds.”

 It should be noted, however, that where there has been an unlawful removal from service, back pay is authorized upon reinstatement. In these cases the Court found that the teacher had no independent right to permanent employment. Her termination was viewed as lawful and therefore she was not entitled to back salary.

Adding days to probationary period lawful

Adding days to probationary period lawful

Hongisto v. Fisher, 76 AD2d 97

The state employee was to serve a 52-week probationary period. He was absent 24 days due to an injury while on the job. He was then advised that his probationary period was extended “24 days”. Later he was dismissed for failure to satisfactorily complete the probationary period.

The Court rejected the argument that the employee became permanent at the end of 52 weeks, holding that the Rules for the Classified Service for state employees provided that the “Maximum period of probationary term of any employee shall be extended by the number of work days of his absence which ... are not counted as time served in the probationary term.*

“The rationale of the regulation is to add to the expiration date of the probationary period the same period of time that the (employee) had missed during his probationary period, so that his performance of duty could be fully observed and evaluated for an entire 52 week period.

* The absence involved appears to be 16 workdays, not 24 days.