Governor Cuomo announces administration appointments

Governor Cuomo announces administration appointments

Source: Office of the Governor

Governor Andrew M. Cuomo announced the following nomination and new appointments within his administration on January 14, 2014..

Corinda Crossdale

Governor Cuomo will nominate Ms. Crossdale to be Director of the State Office for the Aging (“NYSOFA”). Pending her confirmation by the New York State Senate, Ms. Crossdale will serve as Acting Director, where she will lead NYSOFA’s efforts to improve access to cost-effective non-medical support services for older individuals to maximize their ability to age in their community and avoid higher levels of publicly-financed care. Ms. Crossdale served as Assistant Secretary for Health since February 2013. Ms. Crossdale previously served as Executive Deputy Director of NYSOFA and as Director of the Office for the Aging in Monroe County. Ms. Crossdale earned a Master’s Degree in Social Work from Syracuse University and a B.S. from SUNY Brockport.


Rose Duhan

Ms. Duhan will serve as Assistant Secretary for Health. Ms. Duhan previously served as Director of Government Programs at the New York Health Plan Association. She also served as a Senior Budget Analyst for Albany County. Ms. Duhan earned a Master’s Degree in Public Health Policy and Administration from the University of Michigan and a B.A. from Wesleyan University.


Eric Madoff

Mr. Madoff will serve as Executive Director of the State Insurance Fund. Mr. Madoff previously served as Chief of Staff at the NYS Department of Financial Services, where he was responsible for the operation of the agency and its 1,400 employees. During his distinguished career, Mr. Madoff served as Chief Investment and Strategy Officer for the New York Liquidation Bureau, a Vice President at Goldman Sachs, and a Captain in the U.S. Army, stationed in Greece and Hawaii. Mr. Madoff earned an M.B.A. from Harvard and a B.S. from the United States Military Academy.
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Oral assurance of reemployment given to an educator found sufficient to defeat her claim for Unemployment Insurance benefits

Oral assurance of reemployment given to an educator found sufficient to defeat her claim for Unemployment Insurance benefits

2013 NY Slip Op 07241, Appellate Division, Third Department

A full-time special education teacher [Teacher] was laid off from her position as a full-time special education teacher by her employer during the 2009-2010 academic year. She, however, remained on the employer's payroll at a reduced salary for the following academic year as a coach and per diem substitute teacher.

In June, prior to the end of the academic year, Teacher received a telephone call from the employer offering her a full-time position as a special education teacher for the new academic year at a salary 5% higher than her former full-time employment.

Although Teacher orally accepted the position, she nevertheless filed a claim for unemployment insurance benefits effective July 11. In August Teacher received a memorandum confirming her employment. Ultimately, the Unemployment Insurance Appeal Board ruled that Teacher was ineligible to receive benefits because she had received a reasonable assurance of continued employment pursuant to Labor Law §590(10).*

In addition, the Board said that Teacher was subject to a recoverable overpayment with respect to the unemployment benefits that had been paid to her.

Teacher appealed the Board’s determination.

The Appellate Division affirm the Board’s ruling, explaining "A professional employed by an educational institution is precluded from receiving unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment."

The question of whether a teacher received a reasonable assurance of reemployment for the following academic year is a question of fact and, if the Board's findings that the teacher had, in fact, received such an assurance that is supported by substantial evidence, they will not be disturbed.

Here, said the court, the Board specifically credited teacher's testimony that she was informed prior to the end of the academic year that a position was available at the beginning of the upcoming semester. Although Teacher did not receive formal notice in writing until August, the Appellate Division said that it found no basis to conclude that the oral assurance that teacher received in June was not sufficient and reliable within the meaning of Labor Law §590[10].

* Labor Law §590(10) addresses the terms and conditions of eligibility for unemployment insurance benefits available to professional employee with educational institutions, including the State University of New York, the City University of New York and public community colleges.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07241.htm
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Penalty imposed for absence from work after employee told “she could not take those days off” - termination from employment

Penalty imposed for absence from work after employee told “she could not take those days off”  - termination from employment

2013 NY Slip Op 07912, Appellate Division, Third Department

The school district was closed from April 11 to 15, 2011 for spring recess. Employee, a special education aide, was approved to be absent on April 19 and 20, 2011 for religious observances. In addition, Employee asked for approval from her principal to April 18 and 21, 2011. By taking time off on April 18 and 21, 2011, Castle would effectively be absent from the classroom for two weeks.

As this absence would involve an extension of an existing school holiday, Employee was told that her request required the approval of the District Superintendent. Ultimately Employee request to absent herself on April 18 and 21 was denied and she was notified "that she could not take those days [off] under any circumstances" and she was specifically told  "[D]on't take sick time…”

 Employee went to the Dominican Republic on April 10 through April 22, 2011. While there, Employee notified the school via email that she was taking April 18 and 21, 2011 off as "family sick" days.

The school district subsequently filed Civil Service Law §75 disciplinary charges against Employee alleging misconduct, insubordination and being absent without permission [AWOL]. The hearing officer found Employee guilty of all of the charges filed against her and recommended that she be terminated from her employment with the school district.

The Board of Education adopted the findings and recommendations of the hearing officer and Employee filed an Article 78 petition challenged the decision to dismiss her from her position.

The Appellate Division said that as Employee’s “primary challenge on review is directed to the propriety of the penalty imposed,” its is to determine "whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness" i.e., the “Pell standard.”* Further, said the court, “it is not the role of this Court to either "second-guess the administrative agency or substitute its own judgment for the action taken" even if "a lesser penalty may have been more appropriate."

Addressing Employee’s claim that neither the Hearing Officer nor the Board gave due consideration to the mitigating factors present here — namely, hers consistently positive performance evaluations, her lack of a prior disciplinary record, her family's dependence upon her employment as a source of income/health insurance and the fact that she made arrangements for a substitute to cover her classes on the days she elected to be absent, the court said the record reflects that both the hearing officer and the Board considered these factors.

However, said the Appellate Division, "even a long and previously unblemished record does not foreclose dismissal from being considered as an appropriate sanction" for demonstrated misconduct,” citing Matter of Rogers v Sherburne-Earlville Cent. School Dist., 17 AD3d 823, “particularly where, as here, an employee openly defies an employer's express directive”

Finding that there was ample evidence to support the finding that Employee’s absence "was a well-planned event taken in direct contravention of a direct order," the court sustained the Board’s imposing the penalty of termination. **

* Pell v Board of Education, 34 NY2d 222

** See, also, Decisions of the Commissioner of Education, Decision 14,280, in which the Commissioner considered disciplinary action taken against and educator alleged to have abused the school district’s leave provisions, posted at: http://www.counsel.nysed.gov/Decisions/volume39/d14280.htm

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The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07912.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

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Employee’s failure to “opt-out” after reading an e-mail and webpage resulted in an arbitration agreement

Employee’s failure to “opt-out” after reading an e-mail and webpage resulted in an arbitration agreement

Source: Employment News from WKL&B WorkDay

The employer had implemented an arbitration program to resolve disputes between it and its employees.. Its notice to employees included the statement : “If you do not opt out by the deadline, you are agreeing to the arbitration process set forth in the Agreement.”

An employee who received a notice of the arbitration agreement and accessed the relevant “webpage” failed to “opt-out” by not declining to use the arbitration process by the deadline indicated on the web site. The court granted the employer’s motion to compel arbitration of the employee’s discrimination claims, holding that the employee, by failing to opt-out in a timely manner, had agreed to submit the matter to arbitration.

The text of the article by Lorene D. Park, J.D, writing for Wolters Kluwer, is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/email-and-webpage-suffice-as-arbitration-agreement-employee-agreed-by-not-opting-out/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WKL%26B+WorkDay%29

The text of the federal district court’s decision is posted on the Internet at:

http://hr.cch.com/ELD/KarzonAT&T.pdf

NYPPL Comment: As the employee had alleged that that employer had subjected him to a hostile work environment and unequal discipline, and unlawfully terminated his employment based on his national origin, it could be argued that the employee had a vested statutory right to litigate his complaint[s] that could only be obviated if he affirmatively elected submit the matter to arbitration.  

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Employment Law 2013

Employment Law 2013

Source: FindLaw blog site

Anne C. O'Donnell of Findlaw has authored a summary of significant employment law court rulings handed down during 2013 that sets out "highlights and developments from the land of employment law during the past year."

Ms. O’Donnell’s Review is posted on the Internet at:

http://corporate.findlaw.com/human-resources/2013-year-in-review-employment-law.html?DCMP=NWL-pro_top

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