From the Office of the State Comptroller

From the Office of the State Comptroller

DiNapoli: Fire District Mismanaged Funds

The Thiells–Roseville Fire District made more than $60,000 in questionable payments and inappropriate gifts, according to an audit released on May 24, 2012 by State Comptroller Thomas P. DiNapoli.


DiNapoli: DEC Employee Who Cheated Taxpayers Pleads Guilty

A former biologist with the state Department of Environmental Conservation Tuesday pleaded guilty to petit larceny in Albany County Court and paid $15,000 in restitution for spending several hours a week at a local bar instead of performing his work duties, State Comptroller Thomas P. DiNapoli said.


Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed the following audits: the Town of Bath; the Village of Bath; the Town of Lloyd; the Town of Moreau; the Town of Parish; the Town of Saugerties; the Town of Taghkanic.; the New York City Health and Hospitals Corporation; the State Education Department; and, the Department of Motor Vehicles .

Findlaw – Human Resources Newsletter

Findlaw – Human Resources Newsletter

Table of contents for the week of May 29, 2012

Please click on title to access the item.

DOES 'TOO HOT' WOMAN HAVE AN EEOC CLAIM IN AN 'AT WILL' EMPLOYMENT STATE? (Philadelphia Employment Law News) - Recently, Lauren Odes claimed that she was fired for being "too hot" from the lingerie wholesaler where she worked. The New York Magazine also reported that Odes, with the help of her attorney, Gloria Allred, filed an EEOC complaint charging gender and religious discrimination.

LOST YOUR JOB? WHO HASN'T? FINDLAW'S GUIDE HELPS YOU THROUGH (Philadelphia Employment Law News) - Well, it looks like the Sixers held on to their jobs against the Celtics. But not so lucky are Dexter Pittman and Udonis Haslem of the Miami Heat, who are suspended after a recent game.

WHAT DOES THE EEOC HAVE TO DO BEFORE IT CAN FIGHT DISCRIMINATION? (The Chicago Employment Law Blog) - Judge Ruben Castillo, of the U.S. District Court for the Northern District of Illinois, released an opinion last week that might just lead to the Supreme Court in a few years. The case stems from the Equal Employment Opportunity Commission's role as guardian of the discriminated and disabled.

FINDLAW POLL: PEOPLE PAD RESUMES, IT HURTS (The Chicago Employment Law Blog) - Here at FindLaw, we’re not just excellent explicators of existing law. We don’t just react to news stories. We also do original research.

EX-TIME WARNER EMPLOYEE SUES OVER PORN AT WORK (FindLaw's Law & Daily Life) - Time Warner Cable has been hit with another discrimination lawsuit, this time by a former employee in New York. Keith Reid worked in the company's New York City maintenance department for about 9 years before he was fired earlier this year.

JACK'S PLACE ROBBERY: A WORKERS' COMP CLAIM WORTHY OF A RAP STAR (The Houston Employment Law Blog) - While it seems like only stars in the hip hop world get paid if they survive a shooting, workers' comp insurance just might pay a regular Joe if he got shot at work.

BEST BUY CEO BRIAN DUNN GETS $6.6M SEVERANCE PACKAGE AFTER SCANDAL (FindLaw's In House) - Best Buy CEO Brian Dunn may have stepped down in early April, but we're only now learning about the intimate details of his relationship with a 29-year-old employee. And the amount of his severance package, of course.

WAITRESSES' 'NO FATTIES' LAWSUIT CAN GO TO JURY (FindLaw's Law & Daily Life) - Two former New York City waitresses will soon be meeting with a jury. A state appeals court has agreed that Kristen McRedmond and Alexandria Lipton can sue South Place Restaurant & Bar for retaliation and discrimination. They claim they were fired after complaining about the bar's "no fatties" policy.

Employee who failed to attend administrative disciplinary hearing tried in absentia

Employee who failed to attend administrative disciplinary hearing tried in absentia

OATH Index #871/12

The employee failed to appear at the disciplinary hearing and the employer proceed to  established charges alleging various acts of misconduct and, or, insubordination in absentia.*

OATH Administrative Law Judge Alessandra F. Zorgniotti noted that these acts, as well as the employee’s responses when questioned about them, demonstrated that the employee refused to acknowledge his supervisor’s authority over him and would not change his ways. 

Notwithstanding the fact that the employee had never previously been served with disciplinary charges, Judge Zorgniotti recommended termination of employment.

* Courts have held that the employer may proceed with the disciplinary action even though the employee is not present. The hearing may proceed and the employee tried in absentia provided the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-0871.pdf

Alteration of an employee’s duties and responsibilities standing alone not sufficient to establish a prima facie case of discrimination within the meaning of the Human Rights Law

Alteration of an employee’s duties and responsibilities standing alone not sufficient to establish a prima facie case of discrimination within the meaning of the Human Rights Law

After a “literacy coach” was reassigned to a classroom teacher position, the employee filed a complaint alleging the reassignment constituted an unlawful adverse employment action. The Appellate Division disagreed, concluding that none of the employment actions complained of by the employee rose to the level of an adverse employment action.

The court said that the transfer from the position of literacy coach to a classroom teacher was "merely an alteration of [the educator's] responsibilities" and not an adverse employment action, pointing out that apart from a change in the nature of her duties, the individual "retained the terms and conditions of her employment, and her salary remained the same."

As to the teacher’s allegation that she was the victim of unlawful discriminated after her transfer back to the classroom teaching position because she was subjected to ”a relentless stream of reprimands,” the Appellate Division ruled that this was not sufficient to establish a prima facie case of unlawful discrimination. The court noted that “Notwithstanding the frequent reprimands, the teacher received a satisfactory end-of-year performance rating and none of the reprimands resulted in any reduction in pay or privileges."

Addressing the teacher’s complaint of unlawful discrimination based an alleged failure of the employer “to reasonably accommodate her disabling condition,” the court said that the teacher “concedes that [the employer] provided her with a ‘satisfactory’ accommodation in the form of moving her classroom from the fourth to the second floor, with ‘no escort duty.’"

Finally, the Appellate Division said that the teacher had failed to show that her "workplace was permeated with ‘discriminatory intimidation, ridicule and insult’ that [was] sufficiently severe or pervasive to alter the terms or conditions of' employment, so as to make out a claim for hostile work environment.”

Finding that the employee's allegations of unlawful discrimination was properly dismissed as none of the employer’s actions complained of constituted an adverse employment action, the Appellate Division affirmed the Supreme Court’s order granting the City’s motion for summary judgment dismissing the complaint.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03935.htm

The Retired Public Employees Association, Inc., asks State Supreme Court Justice George Ceresia, Jr. to rule that the decrease in the State’s percentage of its contribution towards the health insurance premiums paid by State retirees unlawful

The Retired Public Employees Association, Inc., asks State Supreme Court Justice George Ceresia, Jr. to rule that the decrease in the State’s percentage of its contribution towards the health insurance premiums paid by State retirees unlawful

Source: RPEA e-mail

The Retired Public Employees Association, Inc. [RPEA], referring to a front page article captioned “Did the State Legislature give away its power to control how much money state employees pay toward their health care?” by Rick Karlin that appeared in the Albany Times-Union dated Thursday, May 24, 2012, reports that on Wednesday, May 23, 2012 it asked  State Supreme Court Justice George Ceresia, Jr. to find that the State’s reduction of the percentage of its contribution towards the health insurance premiums paid by pre-October 1, 2011 retired State employee violates Civil Service Law §167.1(a).

Essentially RPEA argued:

1. This action was brought by RPEA on behalf of those individuals who retired from the State as the employer prior to the effective of date of regulations promulgated by the President of the New York State Civil Service Commission [October 1, 2011] under color of the 2011 amendment to CSL Section 167.8. 

2. The 2011 amendment to Civil Service Law Section 167.8 must be applied in a manner consistent with the doctrine of legislative equivalency, whereby the provisions of Section 167.1(a) control except as otherwise specifically authorized to reflect a term and condition of employment set out in a collective bargaining agreement. City of Plattsburgh v Local 788, 108 AD2d 1045 is an example of the application of the doctrine. In Plattsblurgh the Appellate Division held that the procedure for determining an individual’s seniority for the purposes of layoff as set out in §80.1 of the Civil Service Law can neither be diminished nor impaired by the terms of collective bargaining agreements in contrast to the Legislature’s amending §80 providing for an alternate means of determining such seniority with respect to police officers employed in certain police departments as set out in subdivisions 1-a through 1-d of §80.* 

3. Prior to its 2011 amendment, Section 167.8 authorized extending any “negotiated increases” in the State’s cost of premium or subscription charges for health insurance to employees then in active service not subject to a collective bargaining agreement - i.e., unrepresented employees in the Executive, Legislative and Judicial branches of government. Significantly said Section 167.8 specifically provided that such “negotiated increases” shall not be provided to State employees already retired nor upon the retirement of any said unrepresented employees and, unless otherwise specifically otherwise provided in the collective bargaining agreement, employees in the relevant collective bargaining unit retiring during the life of the collective bargaining agreement. The State’s contribution rates to be made on behalf of all such retirees was, and continues to be, set out in Civil Service Law Section 167.1(a). 

4. The 2011 amendment to Civil Service Law Section 167.8 provided that a collective bargaining agreement between the State and an employee organization could modify such State costs – i.e., the State’s cost could be either increased or decreased – and the President of the State Civil Service Commission, with the approval of the Director of the Budget, could extend the modified state cost of premium or subscription charges for employees or retirees not subject to such an agreement and was authorized to promulgate the necessary rules or regulations to implement this provision with respect to employees in service on or after the effective date of such regulation. 

5. It is well settled that any employee of the State as the employer who retired prior to the effective date of any such agreement is not an individual within the relevant collective bargaining unit and would not be subject to any negotiated terms and condition of employment set out therein.** Accordingly, at best the only individuals to whom the provisions of Civil Service Law Section 167.8 as amended could apply with respect to the State’s contributions for health insurance are [1] employees of the State in the relevant collective bargaining unit currently in active service; [2] unrepresented employees of the State to whom the provisions of the collective bargaining agreement modifying the State’s contributions have been extended at the discretion of the President of the Civil Service Commission with the approval of the Director of the Budget currently in active service; and [3] employees of the State described in [1] and [2] above who retired, or become retired, during the life of the relevant collective bargaining agreement. In contrast, State’s contribution for health insurance on behalf of employees of the State who retired from State service prior to the effective date of said Regulations are set out in Civil Service Law Section 167.1(a), which provision have not been amended by the State Legislature. 

6. Any effort by the State to amend the provisions of Section 167.1(a) insofar as individual who retired from the State as the employer prior to October 1, 2011, the effective date of a regulation implementing the terms and conditions of a collective bargaining agreement with respect to the State’s contributions towards health insurance premiums and subscription charges, is a nullity insofar as such retirees are concerned as a rule or regulation may not amend provisions of law set out in a statute but may merely provide for its lawful administration and application. So said the Court of Appeals in Torre v County of Nassau, 86 NY2d 421, wherein the court, noting the doctrine of legislative equivalency, held that a position created by a legislative act can be abolished only by a correlative legislative act. Applying the doctrine in this instance means that the State's rates of contributions for health insurance, having been set out in Civil Service Law Section 167.1(a) by the State Legislature, may only be changed by a legislative act by the State Legislature. Such was the case when the Legislature so acted in 1983*** and amended Civil Service Law Section 167.1(a) mandating a lower rate of contributions by the State for individual coverage on behalf of State employees retiring on or after January 1, 1983.

N.B. In Bransten v State of New York, 40 Misc 3d 512 , an action involving the impact of Section 167.8 as amended on compensation of judges, the court, in part, held: "... More importantly, while the terms of the agreement giving rise to plaintiffs' increase in contributions were negotiated between the State and the union, plaintiffs are unrepresented, and not eligible for collective bargaining, and were, like the judges affected by the Social Security tax in Hatter [U.S. v Hatter (532 US 577], left without a choice and required to contribute. That the Legislature did not single out judges for special treatment in order to influence them is thus irrelevant (see Hatter, 532 US at 577).

“Moreover, defendant negotiated its reduction in contributions in order to avoid the layoffs of thousands of State employees, none of which include judges or justices, because Judges and Justices are not subject to "layoffs." Thus, the increased cost of health insurance borne by plaintiffs bears no relation to the purpose of the State's reduction in its contributions.”

A similar argument could be advanced with respect to non-judicial retirees of the State as the employer, i., in  increasing the cost of Health Insurance to retirees of the State as the employer by decreasing the percentage of the State's contribution on behalf of such retirees bears no relation to the stated purpose of the State's reduction of its percentage of its contributions on behalf of its active employees – to avoid layoffs.

* Legislation extending similar procedures to certain members of other police agencies in the event of a layoff is pending in the Assembly [A9887-2011] and in the Senate [S7075-2011]. See http://publicpersonnellaw.blogspot.com/2012/04/legislation-proposed-to-provide-for-new.html for a NYPPL summary of these bills.

** http://publicpersonnellaw.blogspot.com/2012/04/health-insurance-benefit-enjoyed-by.html summarizes a  State Supreme Court decision in which the court held that health insurance benefits enjoyed by retired individuals are not subject to collective bargaining between the employer and the employee organization absent the consent of all the parties [DiBattista v County of Westchester, 35 Misc3d 1205].

*** Chapter 14, Laws of 1983, retroactive to December 15, 1982 to accommodate the premiums due effective January 1, 1983.

Mr. Karlin’s article is posted on the Internet at:

Read more:  http://www.timesunion.com/local/article/State-retirees-ask-judge-to-roll-back-health-3581516.php#ixzz1vn6qcyB7