Termination recommended as the penalty to be imposed on employee found guilty of theft of employer’s funds

Termination recommended as the penalty to be imposed on employee found guilty of theft of employer’s funds

NYC Department of Education v Hendricks, OATH Index #153/12

A custodian engineer [custodian] employed by the New York City Department of Education was charged with theft of funds from the custodial bank account, and fraud.

OATH Administrative Law Judge Ingrid M. Addison sustained the charges based on testimony from the director of school facilities, who was the custodian’s supervisor, an investigator with the Special Commissioner of Investigation for the New York City School District, and documentary evidence which included copies of checks drawn against the custodial account which the custodian had issued to himself and others.

Judge Addison found that the evidence established that the employee withdrew over $17,000 from the custodial bank account for non-school expenses, including tuition fees for his children’s private school, life insurance premiums and a political contribution. The evidence revealed that the individual had forged endorsements on checks and accepted kickbacks from others he had hired.

The employee, said the ALJ, also violated the Chancellor’s regulations and the City Conflicts of Interest Law by hiring and supervising his sister. ALJ Addison noted that the funds the custodian stole were intended to enhance the learning environment of children by ensuring that the school was safe and clean.

Because a custodian has unfettered access to the custodial bank account solely for those uses, the position demands someone whose honesty is beyond reproach and who is extremely ethical. Accordingly, for the proven charges, ALJ Addison recommended that respondent be terminated from his employment.  

The decision is posted on the Internet at:   

http://archive.citylaw.org/oath/12_Cases/12-153.pdf

Revised APPR Provisions New York State Teacher and Principal Evaluation 2012-13

Revised APPR Provisions New York State Teacher and Principal Evaluation 2012-13

Source: New York State Department of Education 

A Summary of revised APPR provisions captioned "New York State Teacher and Principal Evaluation 2012-13 and Beyond", and reflecting the anticipated changes resulting from enacting amendments to Education Law §3012-c proposed in February 2012 in the Executive Budget and the "Settlement of Litigation," has been posted on the Internet at:

http://engageny.org/wp-content/uploads/2012/03/nys-evaluation-plans-guidance-memo.pdf


N.B.: The posting states that "To the extent that the language in this memo differs from the regulatory language ultimately adopted to conform to the statute, the language in the Regulation controls."

Disclosing FMLA medical information to supervisors, human resource personnel and union representative

Disclosing FMLA medical information to supervisors, human resource personnel and union representative

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.

Joanne Holland was employed as a nurse at the Dallas Veterans Affairs Medical Center ("Dallas VA").  She requested FMLA leave for a variety of stress-related ailments incident to her filing an EEO complaint against her supervisor, Cathy Clellan.  Holland supported her request for FMLA leave with medical documentation.  Holland made the request to Associate Director of Patient Care Services Sandra Griffin.  Griffin notified Dallas VA personnel, including McClellan, of Holland's request for FMLA leave. 

Holland had asked that Griffin not be involved with her request for FMLA leave.  It was subsequently determined that Griffin, as her immediate supervisor, had to approve of Holland's request for FMLA leave.  Holland subsequently submitted her FMLA leave request to McClellan.  Griffen held two telephonic conferences with Holland and other members of the Dallas VA staff to discuss Holland's request, which was approved. 

Holland sued, alleging that the disclosure of her medical information to McClellan and other Dallas VA personnel violated the FMLA's medical confidentially requirements of 29 CFR 825.500(g).  In relevant part, the regulation states that "[r]ecords and documents relating to certifications, recertifications or medial histories of employees or employees' family members, created for purposes of FMLA, shall be maintained as confidential medical records."   The federal district court disagreed.

The court initially noted that it is not entirely clear whether an aggrieved individual can file a civil lawsuit for violation of the medical confidentially provisions.  Assuming, without deciding that a private right of action does exist, in awarding summary judgment in favor of the Dallas VA, the court found that Holland had failed to establish a violation.  While the Dallas VA did release and discuss her medical information supporting her request for FMLA leave, the court found that such disclosure fit within the regularly exception that "[s]upervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations."  29 CFR 825.500(g)(1). 

The court noted that the discussion regarding Holland's FMLA leave request was limited to McClellan, Griffin, Mariamma Kurian, Holland's second-line supervisor, Holland's Human Resource representative, Chris Seaton, and Richard Shaw, Holland's union representative.  

Mr. Bosland comments:  The decision reminds employers that FMLA medical information is confidential and should be shared only with those individuals with a legitimate need to know.  In this case, the court found that the employer had the right to share Holland's FMLA medical information with her initial and second-line supervisors and a company human resource representative in order to consider her leave request. That is, these managers and supervisors had a legitimate reason for the information.  The limited exception allowing disclosure confidential FMLA medical information would not, for example, apply in the event one of these managers and supervisors were to share the information with a colleague as idle gossip.    

Interestingly, the decision included disclosure of Holland's medical information with her union representative.  As written, the exception to the medical confidentially provisions of the FMLA include "supervisors and managers," not union officials.  Unfortunately, the decision does not address whether the union official was part of the conversation at Holland's request, which would likely be construed as a limited waiver of the FMLA's confidentiality requirements.   

Query whether an employer could disclose confidential FMLA medical information to the union over the objection of an employee without violating the FMLA?  A union may have an independent contractual and legal right to be present at a management-employee interview, and to demand relevant information for purposes of a grievance and/or to "police" the collective bargaining agreement regardless of an employee's wishes. Because of the obvious Hobson's choice facing employers - of violating the FMLA, the CBA, or federal/state labor laws by releasing or not releasing requested medical information - courts will likely permit an employer to disclose FMLA medical information to the union provided such disclosure is required by the CBA and/or labor laws. 

Needless to say, employers should exercise great care when discoursing FMLA medical information to the union even where it is required.  While it likely can't be required as a condition, the employer might ask the union to sign a confidentiality provision prior to releasing the information.  Alternatively, the employer could provide the information with a memorandum emphasizing the highly confidential nature of the information being provided and the union's need to keep the information confidential.  The employer may also want to address how the information will be stored, returned or disposed of.  The union might tell the employer that is none of their business, but at least the employer is on record of addressing the issue in the event the matter results in a jury trial.   

The union receiving the information would be well-advised to treat FMLA medical information as highly confidential.  Simply tossing the information into an unsecured grievance file would likely be a "bad" move.  While a union's mishandling of FMLA medical information secured from an employer would not give rise to an FMLA violation, it may be the basis for a costly and embarrassing lawsuit on alternative grounds.  The proper handling of confidential employee medical information, including FMLA certifications, is an area where the union and employer should seriously consider reaching agreement. 

The decisions is Holland v. Shinseki, No. 3: 10-CV-00908 B (N.D. Tex.), https://ecf.txnd.uscourts.gov/cgi-bin/sHWo_PUbliC_DoC?2010cv0908-55

Unsatisfactory performance of assignments does not always equate to misconduct for the purposes of disqualifying an individual for unemployment insurance benefits

Unsatisfactory performance of assignments does not always equate to misconduct for the purposes of disqualifying an individual for unemployment insurance benefits
Matter of Marc (Commissioner of Labor), 2012 NY Slip Op 01726, Appellate Division, Third Department

Andre F. Marc was employed as a head teacher but was terminated for failure to complete overdue paperwork, despite prior warnings. An Unemployment Insurance Administrative Law Judge upheld the initial determination finding that Marc was disqualified from receiving unemployment insurance benefits because he had lost his employment through misconduct.

The Unemployment Insurance Appeal Board reversed that decision, concluding that Marc’s job performance, while unsatisfactory, did not rise to the level of misconduct that would disqualify him for unemployment insurance benefits.

Commenting the "Whether a claimant lost his or her employment through disqualifying misconduct presents a factual issue for the Board, and its resolution thereof will not be disturbed if supported by substantial evidence," the Appellate Division said that in Marc’s case the Board found that he:

1. Was only afforded a minimal period of time during the week to complete his paperwork;  

2. He did not fall significantly behind until he had to take on the additional paperwork responsibilities of a fellow employee who was on vacation; and

3. The Board noted that he still managed to complete a significant amount of the backlog prior to his termination.

Thus, said the court, while the proof of claimant's inefficiency may have justified his discharge, there is, nonetheless, substantial evidence supporting the Board's finding that claimant's poor work performance did not rise to the level of misconduct.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01726.htm

Employees served with disciplinary charges alleging time and attendance violations

Employees served with disciplinary charges alleging time and attendance violations

NYC Department of Sanitation v Alves, OATH Index #402/12
NYC Department of Corrections v Sharon Jackson-Crawford, OATH Index #2710/11

The Alves Case

OATH Administrative Law Judge Alessandra F. Zorgniotti recommended a 47 day suspension without pay as the penalty to be imposed after finding a NYC Sanitation Department worker guilty of being AWOL on 15 occasions in about a one-year period and being habitually late in violation of Department rules.

Although the tardiness was typically less than four minutes, Judge Zorgniotti noted that the Department’s rules did not allow any “grace period” with respect to lateness. While the employee contended that clock used to record the 6:00 a.m. start time was not accurate, the ALJ said that the employee “was on notice that her timeliness was being monitored and should have synchronized her time piece to that clock.”

As to the penalty recommended, Judge Zorgniotti said although the Department seeks to terminate the individual or, in the alternative ten days for each AWOL and three to five days for each lateness, despite the employee’s very poor record, “I find that the penalty of termination is excessive under the circumstances.” Also, said the ALJ, “a suspension of 140 days would be disproportionate to the misconduct and would also be shocking to one’s sense of fairness.”

Still, the Judge agreed that a stern penalty is warranted, hence her recommendation that the employee be suspended without pay for 47 days.

The ALJ also commented that “The Department has a right to a work force that it can rely on. There can be no doubt that if [the employee] continues to have time and leave issues, [the employee] will be terminated from her employment.”


The Jackson-Crawford case

In another “time and attendance” case, Department of Corrections v Jackson-Crawford, OATH Index #2710/11, OATH Administrative Law Judge John B. Spooner recommended the termination of employment of a correction officer who had spent 250 days on sick leave since September 2009.

The officer testified that the absences were due to a work-related injury. ALJ Spooner, however, found that the connection between the absences and a work-related injury was tenuous and that the number of absences violated department rules by a substantial margin. The ALJ also noted that the officer had a pattern of using excessive sick leave for a number of years, including 95 days in 2006, 199 days in 2007, and 171 sick days in 2008.

The NYS Sanitation Department decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-402.pdf 

The NYC Department of Correction decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2710.pdf

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