Pre-employment physical examination not employment

Pre-employment physical examination not employment

Rastaetter v. Charles S. Wilson Memorial Hospital, 436 N.Y.S.2d 47

An individual undergoing a required pre-employment physical examination is not to be considered an employee within the meaning of the Workers’ Compensation Law in the event the person is injured during the physical examination.

In Rastaetter the Appellate Division held that the principal factors to be considered in determining whether an employer-employee relationship exists under such law are the right to control, the method of payment, who furnishes the equipment, the right to discharge and the relative nature of the work.

The court then said “Clearly, these factors demonstrate that a pre-employment physical examination would not be covered by the Workers’ Compensation Law.”

The court also held that this was not a “try-out” situation, as the individual was not “trying out” for employment by working in any manner citing Matter of Smith, 4 AD2d 12 and Matter of Bode, 9 AD2d 969.

Court upholds appointing authority's rejection of hearing officer findings concerning employee's residence

Court upholds appointing authority's rejection of hearing officer findings concerning employee's residence

In the Matter of Linda Ziehm, 90 A.D.2d 677, Affd, 59 N.Y.2d 757

When the Commissioner of Administration rejected a hearing officer’s recommendation that an employee be reinstated to her position, the Union sued on behalf of the employee.

The case arose following the finding by the Commissioner that Ziehm (who was now living in Lackawanna) had forfeited her position by failing to maintain a permanent residence in the City of Buffalo (Buffalo City Ordinance, Chapter 1, Section 4,).

The question before the hearing officer was whether Ziehm came within the provisions of a Taylor Law contact which excused “any employees presently living outside the City” (adopted effective January 1, 1977) from the requirements of the Ordinance.

Although the hearing officer found that she was living outside the City on January 1, the Commissioner held that she was a resident of the City on that date. This determination made the contact provision inapplicable to her.

The Appellate Division concluded that the record contained substantial evidence affording a rational basis for the Commissioner’s finding that Ziehm was a City resident from 1973 until June 1979 and that she did not qualify for the exemption contained in the collective bargaining agreement and upheld his determination.

Do it now grieve it later rule applied in a challenge to an administrative decision

Do it now grieve it later rule applied in a challenge to an administrative decision

Hurwitz v. Regan , 90 A.D.2d 659, Motion for leave to appeal denied, 58 N.Y.2d 609

As a general rule in labor relations, when there is a supervisor/employee difference of opinion concerning an assignment, unless a dangerous situation exists, the employee should “do it now; grieve it later.”

Apparently the same rule will apply in connection with some administrative decisions as well.

When a former member of the New York State Employees’ Retirement System [ERS] was re-employed by a public employer, he sought to reinstate his former Tier I ERS membership.

ERS said no, explaining that he had cease to be a member of ERS in 1970 and had to rejoin as a Tier II member. He finally joined the System as a Tier II member in late 1975.

When the Retirement and Social Security Law was amended in 1977 (C. 973; L. 1977) to allow Tier II members who had been Tier I members who “rejoined within five years” to get back into Tier I, the employee again attempted to regain his Tier I membership. He, again, was refused by ERS and sued.

The Appellate Division noted that the employee had not rejoined ERS until more than five years had passed.

Had he filed a Tier II application in 1974 while contesting the ERS determination concerning the denial of his application for Tier I status, presumably he would have met the requirement of the 1977 amendment.

Probably it is best to do something “under protest” and argue about it later, especially when the consequences of inaction may cause even greater problems.

Court of Appeals rules on seniority for layoff

Court of Appeals rules on seniority for layoff

Hondzinski v. County of Erie, 57 NY2d 715

As more and more jurisdictions cut back in personnel, seniority for layoff purposes becomes a critical issue. The Court of Appeals recently decided a case involving the crediting of seniority upon the “grandfathering” of an employee into the competitive class.

The decision indicates that when a “civil” deputy sheriff position was, by local law, placed in the competitive class* an incumbent who had been in the position for more than one year proceeding the change in jurisdictional classification was entitled to seniority for layoff purposes from the date when the position was placed in the competitive class.

Hondzinski, however, had claimed that his seniority should run from the date of his original appointment as a civil deputy in 1960.

Actually there would be two dates for seniority for the purposes of layoff in this type of situation.

The “1973” date would control in determining seniority for the entire work force, thereby protecting the rights of all competitive class employees.

The original date of appointment of Hondzinski as a civil deputy could be used to determine seniority for the “grandfathered” deputy sheriffs “as among themselves.”

Section 45 of the Civil Service Law provides for such a dual test with respect to the employees of a private employer upon its acquisition by government.

 If a layoff affects a “1973 grandfathered” deputy sheriff, then a further determination as to the least senior of these “1973 deputies” based on their original date of appointment as civil deputies could be made for the purposes of determining which “1973 deputy” has greater rights “as among themselves” to retention in the face of a layoff. In effect, there would be a “seniority list” within a “seniority list.”

* So-called Flaherty deputy sheriffs -- civil deputies, as distinguished from "criminal deputies" --had been exempted from the civil service system on the grounds that the sheriff who had hired them was personally liable for any misconduct or negligence of his or her civil deputies. The term "Flaherty deputies" was applied to such employees of the sheriff following a decision by the Court of Appeals holding that the fact that the sheriff was personally liable for the acts of the civil deputies required their exemption from the civil service system of selection, appointment and promotion (Flaherty v Milliken, 193 NY 564). The New York State Civil Service Department decided that Flaherty no longer applied following a 1990 amendment to the State Constitution that deleted the words "The county shall never be made responsible for the acts of the sheriff." As the amendment allowed a county to assume liability for the acts of a sheriff's civil deputies, the department reasoned that where the county assumed such liability the rationale for the exemption of Flaherty deputies from the civil service law was no longer valid. Accordingly, it was determined that effective January 1, 1990, Civil Service examinations would be required for the appointment and promotion of these civil deputies.

Firefighter injured in an altercation with another firefighter during a New Year’s party at the firehouse denied accidental disability retirement benefits

Firefighter injured in an altercation with another firefighter during a New Year’s party at the firehouse denied accidental disability retirement benefits

Matter of Matter of Walsh v Scoppetta, 2011 NY Slip Op 09160, Court of Appeals

A New York City Fire Department firefighter got into a "loud and heated" argument with a fellow firefighter in the kitchen of the firehouse in the course of a New Year’s Eve party. Their dispute, as characterized by the Court of Appeals was ”fueled by the prohibited consumption of alcohol [and] escalated from mutual taunting and provocative insults to assault when the other firefighter hit Walsh over the head from behind with a metal chair, knocking him to the floor.”

Walsh was subsequently diagnosed with a postconcussional disorder, entailing "sensory nerve dysfunction on his face and leg, headaches, and memory, concentration and sleep disturbance" and the New York City Fire Commissioner ultimately filed an application for ordinary disability retirement* on his behalf. Walsh, however, filed an application for accidental disability retirement,** which provides greater benefits than ordinary disability retirement.

The Medical Board recommended that the New York City Fire Department Pension Fund’s Board of Trustees grant Walsh ordinary disability retirement benefits rather than accidental disability retirement benefits.

As the Board deadlocked on the question of approving Walsh’s application for accidental disability retirement, he was retired with ordinary disability retirement benefits.

 

Walsh then filed an Article 78 petition seeking to annul Board's denying him a line-of-duty accidental disability retirement. Supreme Court dismissed Walsh’s petition, which ruling was affirmed by the Appellate Division (see 73 AD3d 1192).

The Court of Appeals affirmed the lower courts’ rulings, explaining that “We may not set aside the Board of Trustees' denial of accidental retirement on the basis of a tie vote "[u]nless it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident.”

Noting that Walsh’s injuries resulted solely from an altercation with a fellow firefighter rather than his performance of any job duties, the Court said that it need not consider and did not decide whether, or under what circumstances, injuries caused by the intentional act of a third party are accidental within the meaning of §13-353 of the New York City Administrative Code.

* §13-352 of the New York City Administrative Code, Retirement for ordinary disability, is posted on the Internet at:

http://codes.lp.findlaw.com/nycode/ADC/13/3/2/13-352

** §13-353 of the New York City Administrative Code, Retirement for accident disability, is posted on the Internet at: http://codes.lp.findlaw.com/nycode/ADC/13/3/2/13-353

The decisions is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09160.htm