Testing positive for alcohol at the workplace

Testing positive for alcohol at the workplace

OATH Index No. 1405/12

OATH Administrative Law Judge Tynia D. Richard recommended a 30-day suspension* for a sanitation worker who tested positive for alcohol in a random workplace test.

The employee contended that the positive test was caused by ingestion of herbal supplements that unbeknownst to him contained alcohol.  

Judge Richard found that there was no evidence that the amount of alcohol in the supplements was sufficient to trigger a positive breath test, particularly when the confirmatory test administered  22 minutes after the initial screen test also was positive. 

The decision is posted on the Internet at: 

Dep’t of Sanitation v. Anonymous (in PDF), OATH Index No. 1405/12

* The Commissioner imposes followup drug/alcohol testing in addition to the 30-day suspension.

Governor Cuomo signs legislation on public disclosure of teacher evaluations that protects teachers' right to privacy and parents' right to know

Governor Cuomo signs legislation on public disclosure of teacher evaluations that protects teachers' right to privacy and parents' right to know

Chapter 68 of the Law of 2012

On June 25, 2012 Governor Andrew M. Cuomo signed legislation that will require the public disclosure of teacher evaluation data. The Governor said that this new law, which takes effect July 1, 2012, “ensures that parents and the general public can assess how schools across New York are performing.”

According to the Governor, this new law requires school districts and BOCES to fully disclose their evaluation results to the public and require requires the State Education Department to post and make widely available important data that will allow the public to analyze and compare how schools are performing. School districts and BOCES will also be required to notify and fully disclose to parents and legal guardians the final specific ratings and composite evaluation scores of the teachers and principals to which their student is assigned.

The law amends §3012-c of the Education Law by adding a new subdivision, Subdivision 10, to read as follows:

10. Each school district and board of cooperative educational services shall fully disclose and release to the public and the department the final quality ratings and composite effectiveness scores from the annual professional performance reviews of its teachers and principals as provided in this subdivision.

 a. The commissioner shall fully disclose professional performance review data for teachers and principals in each school district and board of cooperative educational services on the department website and in any other manner to make such data widely available to the public. Such data shall be suitable for research, analysis and comparison of professional performance review data for teachers and principals. Such public disclosure shall include but not be limited to the final quality ratings and composite effectiveness scores by school district for principal evaluation data, by school building for teacher evaluation data and, within each district and school building, by class, subject and grade; final quality ratings and composite effectiveness scores by region, district wealth, district need category, student enrollment, type of school (i.e. elementary, middle and high school), student need (e.g., poverty level), and district spending; final quality ratings and composite effectiveness scores by the percentage or number of teachers and principals in each final quality rating category, moving to a higher rating category than the previous year, moving to a lower rating category than the previous year, and retained in each rating category; and data on tenure granting and denial based on the final quality rating categories.

b. Each school district and board of cooperative educational services shall fully disclose and release to the parents and legal guardians of a student the final quality rating and composite effectiveness score for each of the teachers and for the principal of the school building to which the student is assigned for the current school year upon the request of such parents and legal guardians. The governing body of each school district and board of cooperative educational services shall provide conspicuous notice to parents and legal guardians of the right to obtain such information. Parents and legal guardians may review and receive such data in any manner, including by phone or in person; shall receive an oral or written explanation of the composite effectiveness scoring ranges for final quality ratings; and be offered opportunities to understand such scores in the context of teacher evaluation and student performance. Reasonable efforts shall be made to verify that any such request is a bona fide request by a parent or guardian entitled to review and receive such data pursuant to this paragraph.

c. The department and each school district and board of cooperative educational services shall ensure that any release to the public of annual professional performance review data, or any other data that is used as a component of annual professional performance reviews, does not include personally identifying information for any teacher or principal, provided, however, that nothing shall impair the right of parents and legal guardians to review and receive the final quality rating and composite effectiveness score of individual teachers and principals as provided in paragraph b of this subdivision. Annual professional performance reviews of individual teachers and principals shall not be subject to disclosure pursuant to article six of the public officers law.

d. Nothing in this subdivision shall prohibit the department from collecting such data and materials from school districts and boards of cooperative educational services as is necessary to carry out its functions and duties, including its responsibilities related to the federal Race to the Top program.

Disagreement with a superior’s directive not a defense to disciplinary charges alleging insubordination

Disagreement with a superior’s directive not a defense to disciplinary charges alleging insubordination

OATH Index No. 196/12

OATH Administrative Law Judge Faye Lewis found that a correction officer had been insubordinate on two dates and recommended a 10-day suspension.

In the first instance, the employee refused to open a security gate when ordered to do so by a superior officer. He also he refused to relinquish his post to another officer when ordered.

The correction officer disagreed with the order to report to a different post, but ALJ Lewis found this was not a defense because respondent was required to follow direct orders. 

The decision is posted on the Internet at:  

Dep’t of Correction v. Joseph (in PDF)

The filing of a timely a notice of claim -- a “condition precedent” when suing a school district – must be pleaded in the complaint

The filing of a timely a notice of claim -- a “condition precedent” when suing a school district – must be pleaded in the complaint
Munro v Ossining Union Free School Dist., 55 AD3d 697

Dianne Munro was employed as the Purchasing and Accounts Payable Manager by Ossining Union Free School District. In April 2007 she commenced this action against the District under New York State's Human Rights Law (Executive Law §296) seeking to recover damages for alleged employment discrimination on the basis of race and sex.

The District filed a pre-answer motion to dismiss Munro’s petition on the grounds that the claims were barred by the statute of limitations (see Education Law §3813[2-b]) and that she had failed to timely serve a notice of claim (see Education Law §3813[1]). Munro opposed the District’s motion and cross-moved for permission to serve a late notice of claim. The Supreme Court granted the District's motion to dismiss the complaint and Munro’s motion to for leave to serve a late notice of claim. Munro appealed.

The Appellate Division first addressed the notice of claim issue, observing that an entity wishing to sue a school district for violations of the Human Rights Law must serve a notice of claim on the district within three months after accrual of the claim. Further, compliance with this requirement is a condition precedent to such a lawsuit and must be pleaded in the complaint.
In the event the entity has not served a timely notice of claim, if the one-year statute of limitations applicable to such actions has not run, the entity may seek permission to serve a late notice of claim in accordance with Education Law § 3813[2-a]).

A court, in determining whether, in its discretion, to grant such an application, must consider (1) whether the district had actual knowledge of the essential facts constituting the claim within the time required for service of a timely notice of claim or a reasonable time thereafter, (2) whether the claimant had a reasonable excuse for failing to serve a timely notice of claim, and (3) whether the school district would be substantially prejudiced in its defense on the merits if the application were to be granted.

Further, the statute requires that the court consider "in particular," the first factor, and, accordingly, that factor is entitled to the greatest weight, but none is determinative.
Here Munro argued that the District had actual knowledge of the essential facts constituting her claim because she allegedly reported various incidents. However, Munro did not provide any details about the substance of her alleged reports that would permit a record-based conclusion that the District was thereby put on notice of the essential facts underlying her current claims under the Human Rights Law.

Further, the Appellate Division said that Munro offered no excuse at all for failing to serve a timely notice of claim.

Accordingly, even if the District would not be prejudiced were the application to file a late notice of claim granted, the Supreme Court did not improvidently exercise its discretion in denying Munro leave to serve a late notice of claim.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07886.htm

Union rather than officers or board members to acknowledge it does not assert the right to violate the Taylor Law

Union rather than officers or board members to acknowledge it does not assert the right to violate the Taylor Law
New York City Tr. Auth. v Transport Workers Union of Am., AFL-CIO, 55 AD3d 699

Supreme Court [see 18 Misc.3d 414] issued an order conditioning the reinstatement of the Transport Workers Union’s right to payroll deductions for union dues from the paychecks of their members employed by the New York City Transit Authority by requiring affidavits from the President and each individual member of the Executive Board of Local 100 of Transport Workers Union of America, AFL-CIO, stating that “the Union does not assert the right to strike against any government, to assist or participate in any such strike, or to impose an obligation to conduct, assist, or participate in such a strike, and that the Union has no intention, now or in the future, of conducting, assisting, participating, or imposing an obligation to conduct, assist, or participate in any such strike, or threatening to do so, against the [Transit Authority] or any governmental employer.”

The Union appealed and the Appellate Division modified the lower court’s order “on the facts and in the exercise of discretion, by requiring “the Union submit a duly-authorized affirmation stating unequivocally that the Union does not assert the right to strike against any government, to assist or participate in any such strike, or to impose an obligation to conduct, assist, or participate in such a strike, and that the Union has no intention, now or in the future, of conducting, assisting, participating, or imposing an obligation to conduct, assist, or participate in any such strike, or threatening to do so, against the [Authority] or any governmental employer” rather than require the Union’s president and board members to so state.

The Appellate Division explained that the Civil Service Law Article 14, [the Taylor Law], prohibits public employees and public employee organizations from engaging in, or causing, instigating, encouraging, or condoning, a strike and in the event this prohibition is violated, the Public Employment Relations Board or the Supreme Court may order the forfeiture of the organization's right to have union dues automatically deducted from the paychecks of its members.

However, said the court, the Supreme Court improvidently exercised its discretion in requiring that each member of the Union's Executive Board submit an affidavit containing the same statement that the Union does not assert the right to violate the Taylor Law. Reinstating the automatic deduction should depend, not only on the Union's full compliance with the appropriate orders of the court but “also on its willingness to state that it has no intention of engaging or supporting illegal strikes now or in the future.”

Accordingly, it is the Union, rather than its officers or board members, which is required to undertake this obligation.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07887.htm

See, also, MTA Bus Co. v Transport Workers Union of Am., AFL-CIO, 55 AD3d 695, decided the same by the Appellate Division, Second Department concerning the same issue. The text of the MTA decision is posted on the Internet at:
thttp://www.courts.state.ny.us/reporter/3dseries/2008/2008_07883.htm