Applying an employer’s anti-fraternization policy

Applying an employer’s anti-fraternization policy

Source: Portland [Maine] Press Herald news report

OATH Administrative Law Judge John B. Spooner sustained charges that a correction officer engaged in undue familiarity with an ex-inmate and made false statements about the relationship and recommended that the correction officer be dismissed. [See http://www.publicpersonnellaw.blogspot.com/2012/02/hearing-officer-recommends-correction.html ]

The arbitrator in another “prohibited association” case came to a different conclusion and ruled that a State of Maine Bureau of Insurance insurance examiner who married a woman who worked for an insurance company should not have been terminated from his position.

According to Portland [Maine] Press Herald, the examiner told his supervisor that “he might want to date” a woman that he had noticed while performing an audit of an insurance company. His supervisor told the examiner not to socialize with the woman while he was conducting the audit. The examiner complied with his superior’s instruction but after completing the audit the examiner contacted the woman and ultimately they married.

When his supervisor directed the examiner to conduct another audit of the insurance company he declined, contending that it constitute a conflict of interest for him to do so. Ultimately Anne Head, commissioner of the Maine Department of Financial and Professional Regulation wrote the examiner, stating that "Your marriage to an insurance company manager represents a conflict of interest. As a result of this determination, your employment with the Bureau of Insurance will cease."

The arbitrator ruled that “the State did not have grounds to fire [the insurance examiner] simply because he got married.” The arbitrator found that there was no evidence that “the bureau considered any alternatives to termination, in terms of assignment of other duties.” Ruling that the examiner should not have terminated from his employment by the Bureau, the arbitrator directed that the examiner be reinstated to his former position with back pay.

Failure to exhaust administrative remedy held a bar to seeking judicial relief

Failure to exhaust administrative remedy held a bar to seeking judicial relief
Holzman v Commission on Judicial. Conduct, 2012 NY Slip Op 01577, Appellate Division, First Department

Surrogate Court Judge Lee L. Holzman sought a stay of disciplinary proceedings brought against him by the Commission on Judicial Conduct pending the resolution of the criminal prosecution of a witness to the disciplinary proceedings.

Supreme Court denied issuing the stay and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division said that the denial of the petition and dismissal of the proceeding was warranted because Judge Holzman had failed to exhaust the administrative remedy available to him pursuant to Judiciary Law §44(7).*

Further, said the court, Judge Holzman “has not demonstrated that doing so would be futile or that irreparable harm would occur absent judicial intervention,” commenting that the "possibility of reputational harm" claimed by Judge Holzman “does not constitute irreparable injury warranting the relief sought by him.”

* The history to date of these proceedings is posted on the Internet at:

http://www.cjc.ny.gov/Pending.Proceedings/Holzman.htm

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2012/2012_01577.htm

Confusion regarding date of return from FMLA leave decided against the employer

Confusion regarding date of return from FMLA leave decided against the employer

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.

Carl Thom worked as a molder for American Standard for 36 years before his discharge on June 17m 2005.  Prior to his discharge, Thom requested and was approved FMLA leave for the period April 27, 2005 through June 27, 2005 for shoulder surgery.  Because his shoulder healed more quickly than anticipated, Thom submitted medical documentation indicating that he could return to work on "light duty" on May 31, and set June 13 as the date Thom could return to full duty.  American Standard denied Thom's request to return to work earlier than approved, albeit on light duty as against company policy.  Thom did not return to work on June 13.

When contacted the next day, Thom explained that he did not return to work because he was experiencing increased shoulder pain, but would return on June 27, the end date of his approved leave.  American Standard discharged Thom for unexcused absences from June 13-17.

Thom sued alleging that his discharge violated the FMLA.  The district court awarded partial summary judgment in favor of Thom on his FMLA interference claim.  Thom argued that American Standard failed to adequately notify him of its method for calculating FMLA leave because it did not notify him in writing or otherwise that company policy was to use a "rolling" method of leave rather than the calendar method. 

Under the rolling period method, the 12 weeks of leave is calculated "backward from the date an employee uses any FMLA leave.  Under this method, Thom's FMLA leave would have expired on June 13.  Under the calendar year method, Thom's leave would have extended through July 14.  The only written document Thom received from the company stated that his leave would expire on June 27.  American Standard firs notified Thom that it had accelerated his return-to-work date on June 14, a day after it had elapsed.  American Standard first notified Thom that it used the "rolling period" method for calculating the 12-month FMLA leave year after Thom filed his lawsuit.

American Standard argued that it had always used the "rolling period" method of calculating FMLA leave, and that Thom should have known this fact.  It further argued that Thom was on constructive notice through its union that the company used the rolling" method.   

The Sixth Circuit held that, even if notice to the union of the employer's method for calculating the FMLA leave-year can be imputed to an employee, that is not the case where, as here, American Standard officially approved Thom's leave through June 27- 10 work days in excess of what would have been permitted by the "rolling" method.  In short, the Court opined that "actual notice of a particular return-to-work date trumps constructive notice of another." The Sixth Circuit affirmed the decision of the district court that American Standard interfered with Thom's FMLA rights.  The Court also affirmed the award of $104,354.85 in back pay, and an equal amount in attorney fees and costs.

Mr. Bosland comments: Employer's can choose one of four methods for determining the 12-month period in which the 12 or 26 weeks of must be taken: (1) calendar; (2) other fixed leave year; (3) rolling back method; and (4) measured forward method.  See 29 CFR 825.200.  Employers are also required to notify the employee of the applicable method for calculating the 12-month leave year as part of the rights and responsibilities notice.  29 CFR 825.300(c)(1).  The case reminds employers that they need to clearly notify their employees of the FMLA leave year method they have selected.  

 The case is interesting as it leaves open the possibility of imputing notice to the union of the leave year method selected to the employee. Arguably, the DOL's requirement that employer's include notice of the method of leave year calculation in the rights and responsibilities notice should foreclose the viability of such constructive notice.  Employer's would be well advised to publish clear notice of the FMLA leave year method they have selected to all employees and avoid the much riskier constructive notice argument altogether.   

  

The decision, Thom v. American Standard, Case No. 09-3507/3508  (6th cir. January 20, 2012), is posted on the Internet at: http://www.ca6.uscourts.gov/opinions.pdf/12a0016p-06.pdf

The Sixth Circuit covers Kentucky, Tennessee, Ohio, and Michigan.

Contract between State and NYSCOPBA law enforcement members ratified

Contract between State and NYSCOPBA law enforcement members ratified

Source: Office of the Governor

On March 2, 2012 Governor Andrew M. Cuomo and New York State Correctional Officers and Police Benevolent Association (NYSCOPBA) President Donn Rowe announced the ratification of the contract between the state and NYSCOPBA law enforcement membership. The contract was ratified by NYSCOPBA members by a vote of 996 to 62.

The contract includes zero percent wage increases for 2011-2013, ensures protections against layoffs, and offers health benefits commensurate with other state bargaining units. The contract provides for a 2% increase in both 2014 and 2015, 9 days of deficit reduction leave, and adjustments to the health insurance premium.

"The contract that was overwhelmingly ratified by NYSCOPBA ensures competitive benefits and protects the jobs of New Yorkers in law enforcement, all while helping to secure the financial future of our state," Governor Cuomo said. "By continuing to work together, we will emerge from these difficult financial times with a stronger New York. I congratulate NYSCOPBA for the success of the contract ratification and I thank President Rowe for his leadership."

Donn Rowe, President, New York State Correctional Officers and Police Benevolent Association, Inc. (NYSCOPBA), said, "Our law enforcement members perform some of the most dangerous jobs in New York, and they have never asked for more than their fair share. The overwhelming vote in favor of this contract clearly shows that these members also recognize New York's fiscal situation. Governor Cuomo deserves credit for acknowledging the difficult job our law enforcement members have and the valuable service they perform for the public everyday."

NYSCOPBA represents over 26,000 New York State employees and retirees from the Security Services Unit. The contract applies to law enforcement members who are not eligible for arbitration.

The agreement follows the pattern of contracts negotiated over the past year and includes:

· Zero percent wage increases for 2011-2013, a 2% increase in both 2014 and 2015
· The agreement includes 3% and 4% wage increases for 2009-2010, the same pattern as other units; these increases were previously reserved for in the state financial plan
· A $1,000 retention bonus paid out $775 in the third year and $225 in the fourth year
· Deficit Reduction Leave of five days this fiscal year and four days next fiscal year, saving $4.3 million; the total deduction for the days comes from the retro pay for 2009-11
· Employees will be repaid the value of 4 days in equal installments starting at the end of the contract term
· Retroactive payments that are scheduled to be paid in two installments next fiscal year
· A 2% increase in health insurance premium contributions for Grade 9 employees and below, making the share 12% for individuals and 27% for family premiums; and 6% increase for Grade 10 employees and above, making the share 16% for individuals and 31% for family premiums
· A health plan opt-out so officers can opt-out through a spouse/partner to a non-state health plan
· All changes to health benefits, including premium shifts, will save $8.2 million over the contract period and $2 million annually after 2016
· A labor/management committee to review all leave taken by officers, including annual, personal, sick, workers compensation, and the manner of such use; recommendations will be made to the President of NYSCOPBA and the GOER Director for implementation
· Officers will receive broad layoff protection; workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations, or material or unanticipated changes in the state's fiscal circumstances are not covered by this limitation

If there is no statutory, constitutional or public policy bar to arbitrating a contract grievance, the arbitrator decides whether the grievance is arbitrable

If there is no statutory, constitutional or public policy bar to arbitrating a contract grievance, the arbitrator decides whether the grievance is arbitrable

Mariano v Town of Orchard Park, 2012 NY Slip Op 01026, Appellate Division, Fourth Department

Supreme Court denied the Town of Orchard Park's motion to stay the arbitration of a grievance filed by the Orchard Park Police Benevolent Association [PBA] that alleged that the Town’s changing health care coverage for retired Town police officers was a violation of the relevant collective bargaining agreement.

In opposing the PBA's motion to compel arbitration of a grievance it had filed on behalf of the affected retired members; the Town argued that as the retired members were no longer members of the PBA they had no right to file a grievance, much less seek to arbitrate the grievance.

Supreme Court denied the Town’s cross-motion to stay the arbitration and the Appellate Division affirmed the lower court decision.

The Appellate Division said that when determining whether a claim is arbitrable in the public sector, courts must conduct a two-step inquiry.

First, a court must determine "whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." If it decides that there is no such bar, the court then determines if the parties agreed, by the terms of their particular arbitration clause, to refer their dispute to arbitration.

Finding that the question had passed the first test, the court, in applying the second test, held that the fact that the retirees are not members of the PBA or represented by it in collective bargaining negotiations “is not determinative in a threshold arbitrability analysis.”

Rather, said the court, “issues concerning the PBA's relationship to retired employees, issues concerning whether retirees are covered by the grievance procedure, and issues concerning whether the clauses of the contract support the grievance are matters involving the scope of the substantive contractual provisions and, as such, are for the arbitrator” to determine.

Commenting that New York's public policy encourages arbitration of labor disputes involving public employees, the Appellate Division decided that Supreme Court “ did not err in granting [the Union’s] cross motion to compel arbitration.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01026.htm