Loss of the license or other certification required for the performance of the duties of the position typically results in the termination of the individual’s employment

Loss of the license or other certification required for the performance of the duties of the position typically results in the termination of the individual’s employment
2015 NY Slip Op 04182, Appellate Division, Third Department

Although the loss of the license or the certification required to perform the duties of the position typically results in the termination of the individual’s employment, the courts have held that a termination for inability to produce proof of possession of a required license, permit or certificate is not a dismissal in the nature of discipline.*

However, an individual dismissed because he or she is unable to produce the required credentials to lawfully perform the duties of his or her position may also suffer another consequences following his or her termination - the Unemployment Insurance Appeal Board may determine that the Claimant was disqualified from receiving unemployment insurance benefits because he or she had  voluntarily left his or her employment “without good cause.”

In this instance Claimant had been employed as a full time heavy equipment operator by a municipality's highway department for more than four years . One of the conditions of his employment was that he maintain a valid commercial driver's license (CDL).

In the course of a traffic stop, Claimant “refused to submit to a breathalyzer test” and his CDL was automatically suspended as a result.

Although there was some discussion about Claimant’s continuing to work for the highway department as a laborer on a part-time basis, this did not occur and Claimant was unable to return to his job as a heavy equipment operator as a result of his CDL being suspended.

Claimant then applied for unemployment insurance benefits. Although Claimant’s application for unemployment insurance benefits was initially denied, on appeal an Administrative Law Judge ruled that Claimant was allowed to receive benefits. The Unemployment Insurance Appeal Board [Board], however, subsequently reversed this decision, concluding that Claimant was disqualified from receiving benefits because he had provoked his discharge.

Claimant appealed but the Appellate Division sustained the Board’s ruling. 

Citing Matter of Ramirez [Commissioner of Labor], 84 AD3d 1656 and other decisions, the court explained that applicants for unemployment insurance benefits “who have undertaken voluntary actions that have resulted in the forfeiture of their valid CDLs, a necessary condition of employment,” have been held to have provoked their discharge thereby disqualifying them from receiving unemployment insurance benefits.**

Rejecting Claimant’s argument to the contrary, the Appellate Division said that the appointing authority “was not obligated to offer [Claimant] a part-time position as a laborer,” following his termination from his heavy equipment operator position, citing Matter of Ramirez [Commissioner of Labor], 84 AD3d at 1657.

* See, for example, Matter of Cravatta v New York State Dept. of Transp., 77 AD3d 1399; Matter of Carr v New York State Dept. of Transp., 70 AD3d 1110.

** An applicant for unemployment insurance benefits who has left his or her position “without good cause” is typically held ineligible for such benefits. [See Hawkins v Commissioner of Labor, 71 AD3d 1215}.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04182.htm

The eight factors that a public agency or private employer must consider before rejecting an applicant for employment based on his or her criminal record

The eight factors that a public agency or private employer must consider before rejecting  an applicant for employment based on his or her criminal record

2015 NY Slip Op 04028, Court of Appeals

Distinguishing its decision in Acosta v New York City Board of Education [Board], in this action the Court of Appeals held that the Board’s denial of the application for certification as a school bus driver because of his prior criminal convictions was not arbitrary and capricious.

Here the applicant [Applicant] for certification as a school bus had disclosed that he had been convicted of two drug-related felonies as well as three theft-related misdemeanors, the most recent in 1993, when Applicant was 41 years old. Applicant explained that his criminal history was related to a past drug addiction, which he had overcome in the mid-1990s through a drug treatment program.

DOE withheld its certification as a school bus driver, advising Applicant’s employer that  the reason for the denial was that Applicant had been "convicted of an offense that render[ed] [him] unsuitable to perform duties associated with the transportation of school age children." As a result of petitioner's failure to receive certification, the bus company terminated Applicant's employment.

Applicant and other individuals who had been denied certification by the DOE based on criminal convictions commenced a proceeding pursuant to CPLR Article 78 challenging the denials. Supreme Court dismissed the proceeding. However, the Appellate Division modified Supreme Court's judgment, granted the petition to the extent of annulling the DOE's determinations, and remitted to the DOE, "to give petitioners an opportunity to review the information upon which DOE's determinations were based and to submit statements and documents pursuant to Chancellor's Regulation C-105."

Regulation C-105 provides that "[i]f, prior to the conclusion of any background investigation, information of a derogatory nature is obtained which may result in denying the application for license, certification or employment, an applicant will be given an opportunity to review such information with [DOE's Office of Personnel Investigation] and to include in the investigatory file, any written statements or documents which refute or explain such information."

Although Applicant had submitted various documents to the DOE from a number of prior employers including the bus company, all which described Applicant as a reliable and responsible employee and a certificate of relief from disabilities with respect to his felonies issued by Supreme Court in 2002, DOE again denied his application.

Applicant again challenged DOE’s denial of certification to serve as a school bus driver.

Supreme Court granted Applicant’s petition to the extent of annulling DOE's determination, ordered the DOE to approve petitioner's application, and remanded. Supreme Court concluded that the DOE had "failed to consider all eight factors as set forth in section 753 of the Correction Law. . . . Respondent only considered petitioner's criminal history when reviewing his application and failed to consider his extensive evidence of rehabilitation. Petitioner's last conviction was eighteen years ago and he obtained a certificate of relief from disabilities" (see 2012 NY Slip Op 30552[U] [Sup Ct, NYCounty 2012]).

The Appellate Division reversed Supreme Court's judgment, holding that "[t]he DOE's May 4, 2011 determination that [Applicant’s] prior drug-related convictions as an adult bore on his fitness and/or ability to perform his school bus duties was rationally based, and it shows DOE gave due consideration to the relevant factors under Correction Law § 753 before denying his application. Although [Applicant] avers he has been drug free since 1994, and his crimes were directly related to his drug addiction at the time, the offenses were not youthful indiscretions (he was 41 years old), but were of a serious nature since each involved narcotics."

The Appellate Division granted Applicant leave to appeal to the Court of Appeals, certifying the question whether its order was properly made. The Court of Appeals affirmed the Appellate Division’s decision.

The Court of Appeals noted that the Correction Law sets out eight factors that a public agency or private employer must consider when deciding whether one of the §752 exceptions applies:

"(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.

(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.

(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his [or her] fitness or ability to perform one or more such duties or responsibilities.

(d) The time which has elapsed since the occurrence of the criminal offense or offenses.

(e) The age of the person at the time of occurrence of the criminal offense or offenses.

(f) The seriousness of the offense or offenses.

(g) Any information produced by the person, or produced on his [or her] behalf, in regard to his [or her] rehabilitation and good conduct.

(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public."

(Correction Law § 753 [1].)

and that "[a] failure to take into consideration each of these factors results in a failure to comply with the Correction Law's mandatory directive."

Referring to it decision in Acosta, the court explained that there it had reviewed DOE's denial of an application for a security clearance, filed by an individual who had been convicted of first-degree robbery when she was 17 years old. Although DOE contended that issuance of the security clearance would pose "an unreasonable risk to property or to the safety or welfare of specific individuals or the general public,” the Court of Appeals held that the DOE acted arbitrarily because the agency failed to consider each of the factors specified in Correction Law § 753 and, further, did not take into consideration all of the documentation that Acosta submitted in support of her application, and therefore violated Correction Law §753(g). The court said that it concluded that DOE's review amounted to no "more than a pro forma denial of petitioner's application on the basis of her prior criminal conviction,"

In his appeal, Applicant argued that “DOE has, once again, failed to review anything other than an applicant's criminal record.”

The Court of Appeals said that it disagreed with Applicant, holding that in contrast to Acosta, Applicant “adduces no evidence demonstrating that the DOE failed to consider the information he provided concerning his relevant employment history.”  Here, said the court, the record indicates that the DOE may simply have given "greater weight to . . . the fact and circumstances of [Applicant's] conviction[s] than to . . . his subsequent accomplishments," and in these circumstances the DOE's determination cannot be overturned without "engaging in essentially a re-weighing of the factors, which is beyond the power of judicial review.

Considering these elements and the relevant statutes, the Court of Appeals, Chief Judge Lippman dissenting, said that under these circumstances “we cannot conclude that the DOE's determination, declining to grant the certification despite the certificate of relief from disabilities, was arbitrary and capricious.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04028.htm

A reminder from the Internal Revenue Service

A reminder from the Internal Revenue Service

Free Webinars

1. Taxability of Fringe Benefits Part Two: Commonly Provided Fringe Benefits 

When: June 11, 2015; 2 p.m. (Eastern) [ [Did you miss Part One? See #3 below.]

How: Register for this event. You will use the same link to attend the event.

Learn about:

Cell phone usage

Payments In-Lieu of Insurance

Moving expense reimbursements

Meal allowances and reimbursements

Employee vehicles used for employer’s business

Employer provided vehicles

What else: Don't forget to register for these IRS Webinars:

2. Compliance Self-Assessment Tool for Government Entities

May 14, 2015; 2 p.m. (Eastern)

Register

3. Taxability of Fringe Benefits Part One: What Is A Fringe Benefit and When Is It Taxable?  

May 19, 2015; 2 p.m. (Eastern)

Register  

Employers must provide a disabled individual with a reasonable accommodation of his or her disability in contrast to providing the accommodation preferred by the individual

Employers must provide a disabled individual with a reasonable accommodation of his or her disability in contrast to providing the accommodation preferred by the individual
2015 NY Slip Op 03936, Appellate Division, First Department

The Appellate Division agreed with Supreme Court’s finding that the City of New York as the employer [Employer] had demonstrated that it had engaged in a good faith interactive process through which it had provided Complainant with a reasonable accommodation to address her vision and reading disabilities.

However, said the court, neither the New York State’s Human Rights Law [Executive Law § 296] nor New York City’s Administrative Code [Administrative Code of City of NY § 8-107] requires that an employer provide a disabled individual with the specific accommodation he or she preferred, citing Pimentel v Citibank, 29 AD3d 141, leave to appeal denied, 7 NY3d 707.

Further, said the Appellate Division, Employer had established that the Complainant’s preferred additional accommodation would not have addressed the non-visual disabilities that were impacting her job performance and preventing her from satisfying the essential requisites of her job.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03936.htm

A requests for reconsideration of a final administrative decision does not toll the running of the Statute of Limitations

A request for reconsideration of a final administrative decision does not toll the running of the Statute of Limitations

2015 NY Slip Op 03929, Appellate Division, First Department

In 2006 the New York City Teachers' Retirement System (TRS) calculated a teacher’s [Retiree] total service credit and found her to be ineligible for an early retirement incentive (ERI) program.

In 2013 Retiree, after making multiple unsuccessful efforts to get TRS to rectify its allegedly erroneous determination, filed an Article 78 petition seeking a court order directing TRS to “correct” its decision regarding Retiree’s eligibility for the ERI.

Supreme Court dismissed Retiree’s petition  challenging TRS's calculation of her total service credit and its determination finding her ineligible for the ERI program as time barred. The Appellate Division agreed with Supreme Court’s ruling.

The Appellate Division said that TRS's determination became final and binding for statute of limitations purposes upon Retiree’s receipt of TRS's letter dated September 15, 2006 calculating her total service credit and explaining that she was ineligible to participate in the ERI program. Retiree did not dispute her having received this letter within five days after it was mailed on September 15, 2006. Further, said the court, there is no evidence in the record to substantiate Retiree’s claims that TRS misled her or undermined the “finality of the letter.”

The Appellate Division explained that Retiree’s many efforts to get TRS to rectify its purported error were, in effect, “requests for reconsideration, which do not serve to toll the statute of limitations,” citing Cauldwest Realty Corp. v City of New York, 160 AD2d 489. Thus, said the court, because Retiree commenced her Article 78 proceeding in 2013, well beyond the four-month statute of limitations, her challenge was time-barred.

Addressing another claim advanced by Retiree, credit for “uncompensated annual leave and cumulative absent reserve time” allegedly withheld by the Department of Education of the City of New York (DOE), the Appellate Division said Retiree’s claim was barred by the doctrine of laches  as she had waited more than 10 years after she retired from her employment with DOE to demand such relief, and Retiree provided no excuse for the delay. Laches is typically defined as "an unreasonable delay by the plaintiff in bringing the claim."

Further, said the court, under these circumstances, DOE was not required to show that it was prejudiced by Retiree's delay in bringing her claim.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03929.htm