Excessed employees in Japan are assigned to “the chasing-out room”

Excessed employees in Japan are assigned to “the chasing-out room”

Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2013, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, New York Law School, All rights reserved.

“Sony, [the] employer of [the] individual for 32 years, consigned him to a room because [it] can’t get rid of him. Sony had eliminated his position at the Sony Sendai Technology Center, which in better times produced magnetic tapes for videos and cassettes. But the individual, now age 51, refused to take an early retirement offer from Sony in late 2010 — his prerogative under Japanese labor law.

“So there he sits in what is called the “chasing-out room.” He spends his days there, with about 40 other holdouts.”

The full text of the article is posted on the Internet at: http://nyti.ms/14UNtAQ 

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The employer is required rebut the statutory presumption that the applicant for accidental disability retirement benefits suffered a World Trade Center-related post-traumatic stress disorder with competent medical evidence

The employer is required rebut the statutory presumption that the applicant for accidental disability retirement benefits suffered a World Trade Center-related  post-traumatic stress disorder with competent medical evidence

Ginther v Kelly, 2013 NY Slip Op 05967, Appellate Division, First Department

§13-252.1 of New York City’s Administrative Code, was amended by adding a new provision, §13-252.1[1], the so-called “World Trade Center Law.” This amendment established a rebuttable presumption that "any condition or impairment of health . . . caused by a qualifying World Trade Center condition" as defined in the Retirement and Social Security Law, "shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident . . . unless the contrary be proved by competent evidence."

Mary Gintherfiled a petition pursuant to CPLR Article 78 challenging the New York City Police Commissioner’s denying her application for World Trade Center accidental disability retirement benefits. Supreme Court dismissed Ginther’s petition and she appealed.

The Appellate Division unanimously reversed the lower court’s ruling “on the law” and annulled the Commissioner’s decision, remitting the matter to the Police Board of Trustees for recomputation of the appropriate level of benefits to be awarded to Ginther.

The Appellate Division said that the Kelly respondents “failed to meet their burden of providing competent evidence rebutting [Ginther’s] medical evidence that she suffered from post-traumatic stress disorder and depression following her service as a police officer at the World Trade Center site from September 12, 2001 until November 28, 2001.

Citing Samadjopoulos v New York City Employee’s Retirement System, 104 AD3d 268,* the Appellate Division explained that while “the Medical Board is empowered to resolve conflicting evidence, it may not ignore medical evidence and speculate as to other causes of disabling medical conditions in order to rebut the statutory presumption.”

According to the decision, the Medical Board had rejected the conclusion of Ginther’s doctors based on her delay in seeking diagnosis and treatment for her medical condition, and concluded, instead, that Ginther had suffered from a personality disorder. However, said the Appellate Division, the Medical Board did not cite any credible or competent medical evidence support of its diagnosis.

Further, said the court, the Medical Board failed to provide credible evidence or research concerning the onset of a personality disorder in middle age, a conclusion disputed by Ginther's doctor.

* The Samadjopoulos decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2013/2013_01901.htm

The Ginther decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05967.htm

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The Unemployment Insurance Appeals Board is bound by the disciplinary hearing officer's "factual findings” and his conclusion that the employee had been insubordinate in determining if the individual’s behavior constituted disqualifying misconduct

The Unemployment Insurance Appeals Board is bound by the disciplinary hearing officer's "factual findings” and his conclusion that the employee had been insubordinate in determining if the individual’s behavior constituted disqualifying misconduct
2013 NY Slip Op 05942, Appellate Division, Third Department

A school custodian [Employee] was served with disciplinary charges pursuant to Civil Service Law §75 alleging that he was guilty of misconduct, incompetence and insubordination. The disciplinary hearing officer found Employee guilty of charges of misconduct and insubordination involving numerous incidents, including Employee’s sleeping while on duty and Employee’s “using vacation days” without giving proper notice or obtaining authorization to do so.

The hearing officer also determined that Employee was guilty of misconduct and insubordination with respect to his behavior after being served with the initial disciplinary charges and specifications brought against him by “verbally abusing his supervisor and failing to immediately leave the premises after being directed to do so.”*

Noting that Employee had violated an earlier "last chance" agreement specifying that dismissal was appropriate if he engaged in any future misconduct, the hearing officer recommended that Employee be terminated from his position.

The appointing authority adopted the hearing officer’s findings and recommendation and dismissed Employee from his position.

Employee applied for unemployment insurance benefits. The Unemployment Insurance Appeal Board determined that Employee's behavior “did not rise to the level of disqualifying misconduct" and awarded him unemployment insurance benefits.The employer appealed the Board’s decision.

The Appellate Division reversed the Board’s ruling, explaining that although the Board was free to make "independent additional factual findings" and draw its own independent conclusion as to whether Employee's behavior rose to the level of disqualifying misconduct for purposes of entitlement to unemployment insurance benefits, it was also bound by the disciplinary hearing officer's "factual findings” with respect to Employee’s conduct and the hearing officer's conclusion that Employee was guilty of insubordination.

As the Board failed to consider whether some of the established instances of misbehavior constituted disqualifying misconduct, and improperly contradicted other factual findings of the disciplinary hearing officer, the Appellate Division remanded the matter to the Board “so that it may reconsider” its ruling consistent with the court’s decision.

* Presumably the initial disciplinary charges served on Employee were amended or supplemented to reflect these additional allegations of misconduct.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05942.htm
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The appointing authority may disregard a resignation submitted by the employee when disciplinary charges have been, or are about to be, filed against the individual

The appointing authority may disregard a resignation submitted by the employee when disciplinary charges have been, or are about to be, filed against the individual

OATH Index No. 2041/13

The New York City Human Resources Administration initiated disciplinary action against an employee alleging the employee was AWOL based on the individual's long-term absence from work. The employee’s absence from work resulted from the individual’s incarceration and conviction of a crime.

The employee resigned soon after the disciplinary hearing was held and asked that the OATH Administrative Law Judge to refrain from issuing a decision.*

ALJ Joan R. Salzman ruled that the employer has the right to request a determination on the merits of the charges “for the legitimate purpose of assessing future public employment under Civil Service Law.”

Judge Salzman found the employee guilty of misconduct but made no penalty recommendation in consideration of the individual’s resignation. 

* 4 NYCRR 5.3(b), which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides, in pertinent part, “when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.. A number of local civil service commissions have adopted a similar rule applicable to employees appointed by public entities subject to its jurisdiction.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-2041.pdf
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Benefits available to State employees and employees of a political subdivision of the State ordered to military service

Benefits available to State employees and employees of a political subdivision of the State ordered to military service

§§242 and 243 of New York State’s Military Law

Ronald Miller, Esq., in an item posted in CCH’s Blog Employment Law Daily,* reports that a “city was denied summary judgment against an employee’s claim that it refused to reemploy her as a building custodian following her return from active duty with the National Guard (Sanderson v City of Farmington Hills, EDMich, September 17, 2013).”

Mr. Miller commented that: “A federal district court in Michigan rejected the city’s contention that the employee’s failure to report to work as requested, or to submit an application for reemployment, precluded her claim. Moreover, the court determined that the requirement of 38 USC Sec. 4311, that an employee show discrimination based on military service, was not triggered because she was never reemployed.”

§§242 and 243 of New York State’s Military Law grants certain rights to public officers and employees ordered to military duty.

§242 sets out the rights of public officers and employees absent on military duty as members of the organized militia or of reserve forces or reserve components of the armed forces of the United States. §243 addresses the rights of a public officer or employee while on ordered military service and his or her rights to reinstatement following his or her release from such ordered military service.

Essentially every public officer or employee is entitled to absent himself or herself for ordered military service** and is deemed to have a leave of absence from his or her duties or service as such public officer or employee while engaged in the performance of ordered military duty and while going to and returning from such duty.

As to reinstatement to his or her position, §243.2, in pertinent part, provides “Such public employee shall be reinstated to his position as soon as possible provided he [or she] makes application for such reinstatement within ninety days after the termination of his [or her] military duty, or at any time during his [or her] terminal leave. Thereafter, he [or she] may be so reinstated, at any time after such ninety-day period and within one year after the termination of his [or her] military duty, in the discretion of the appointing officer or body.”

§§242 and 243 also provide other benefits to officers and employees absent on military leave such as "pay for military duty;" the ability to elect to contribute to his or her pension or retirement system while on military duty; protecting his or her status on an eligible list, crediting military service towards completing probationary service requirements and rights related to placement on special military lists and military "reemployment lists" under certain circumstances.

* The full text of Mr. Miller’s item is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/employers-claim-that-national-guard-member-failed-to-comply-with-userras-requirements-for-reemployment-fails/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WKL%26B+WorkDay%29

** N.B. §243.1(b) requires police officers to obtain the prior consent of their public employer before absenting themselves from their position for military service in order to be eligible for certain benefits.

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