Employer’s questions on its electronic application form for employment the subject of allegations of unlawful discrimination

Employer’s questions on its electronic application form for employment the subject of allegations of unlawful discrimination
Costco Wholesale Corp. v New York State Div. of Human Rights, 2015 NY Slip Op 04587, Appellate Division, First Department

The New York State Division of Human Rights [Division], after a hearing, found that Costco Wholesale Corporation [Costco] had violated the State Human Rights Law (Executive Law §296) when it included certain questions on its electronic application form for employment and ordered Costco to pay $40,000 in civil fines and penalties.

Costco appealed and the Appellate Division unanimously annulled the Division’s determination and the fine and penalties that it had imposed on Costco.

The Appellate Division said that the Division’s determination that Costco had violated Executive Law §296(15) and Article 23-A of the Corrections Law is not supported by substantial evidence as the evidence in the record did not show that Costco’s online employment application system automatically disqualified applicants with a prior criminal conviction.

The court said that the evidence showed that questions that could lead to an applicant’s “automatic” disqualification concerned the applicant’s “legal documentation to work in the United States,” his or her willingness to undergo a criminal background check and employment reference check, his or her willingness to submit to a drug test, whether the applicant states the he or she is able to perform the essential functions of the job, and whether the applicant is 18 years of age or older.

As to an applicant’s response to a question concerning his or her “prior conviction,” the Appellate Division commented that the question was specifically “not an automatic bar to employment, as stated in the application itself.“ The Appellate Division said that the fact that the complainant's application was designated as "pre-screened" indicating that it had passed through the online portion of the hiring process and “was not marked ineligible.”

Nor, said the court, was there any evidence that Costco’s grading criteria for applicants with convictions was used in connection with the online application. Instead, noted the Appellate Division, the evidence showed that this non-mandatory guideline was used only when an applicant had reached the background check stage of the hiring process.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04587.htm

The “law enforcement exemption” in POL §87(2) (e) (iv) is not applicable to FOIL requests for documents that might result in administrative disciplinary action

The “law enforcement exemption” in POL §87(2) (e) (iv) is not applicable to FOIL requests for documents that might result in administrative disciplinary action

2015 NY Slip Op 04356, Appellate Division, Third Department

Department of Taxation and Finance [Department] undertook a department-wide audit to identify employees who had overstated their job-related expense deductions on their personal income tax returns. As a result a number of employees [Petitioners] serving in the Department's Criminal Investigation Division, were issued notices advising them to — in accordance with the provisions of their union contract — submit to an official interrogation in order to determine whether disciplinary action was warranted.

Petitioners objected to the interrogation and filed a Freedom of Information Law [FOIL] request seeking "any and all documents, records, memoranda and files . . ., which relate, concern, were precipitated by, or respond to, directly or indirectly, to the . . . proposed interrogation of [Petitioners]."

The Department’s records access officer produced various documents but denied access to, among other things, 68 pages of documents containing proposed interrogation questions — citing the “law enforcement exemption” as justification for withholding those documents. Ultimately Petitioners initiated a CPLR Article 78 proceeding seeking disclosure of the remaining withheld documents. Following an in camera inspection, Supreme Court concluded that the 68 pages of proposed questions did not fall with the “law enforcement exemption” and ordered the release of those pages.

The Appellate Division affirmed the Supreme Court’s ruling, explaining that “Under FOIL, agency records are presumptively available for public inspection, without regard to the need or purpose of the applicant, unless the requested documents fall within one of the exemptions set forth in Public Officers Law §87(2)," citing Williamson v Fischer, 116 AD3d 1169, leave to appeal denied, 24 NY3d 904.

The court said that "[e]xemptions are narrowly construed, with the agency that seeks to prevent disclosure bearing the burden of demonstrating that the requested material falls squarely within an exemption by articulating a particularized and specific justification for denying access." In denying access to the 68 pages of proposed interrogation questions, the Department “relied exclusively upon Public Officers Law §87(2) (e) (iv), which exempts from disclosure "records or portions thereof that . . . reveal criminal investigative techniques or procedures, except routine techniques and procedures."

The statute’s references criminal investigative techniques or procedures, and prevailing case law suggests that this exemption applies only to a FOIL request that, at the very least, has its genesis in an underlying criminal investigation or prosecution. As the records before the Appellate Division “makes no reference to a criminal investigation implicating [Petitioners}, nor does it suggest that state or local law enforcement officials would be involved in the proposed interrogation of them, the court found that the law enforcement exemption embodied in Public Officers Law §87 (2) (e) (iv) was inapplicable to the documents at issue .

Observing that the Department sought to question Petitioners in accordance with the provisions of their union contract for the purpose of gathering information that, in turn, potentially could result in the commencement of administrative disciplinary proceedings, the Appellate Division concluded that the Department’s reliance on the “law enforcement exemption” was misplaced. Further, the Appellate Division said that it was satisfied that “even assuming this exemption otherwise applied here, the questions at issue were routine in nature — the disclosure of which would not reveal detailed or specialized investigative techniques or procedures.”

The court noted two additional grounds advanced by the Department for denying disclosure of the proposed interrogation questions – the exemption of [1] the disclosure of records that "interfere with law enforcement investigations or judicial proceedings,” and the exemption of [2] pre-decisional, inter-agency or intra-agency materials from disclosure. For a number of procedural reasons set out in the opinion, the Appellate Division declined to consider these arguments

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04356.htm

Regular monthly meeting of the State Civil Service Commission for June 2015 scheduled

PUBLIC NOTICE

Department of Civil Service

PURSUANT to the Open Meetings Law, the New York State Civil Service Commission hereby gives public notice of the following:

Please take notice that the regular monthly meeting of the State Civil Service Commission for June 2015 will be conducted on June 16 and June 18 commencing at 10:00 a.m. This meeting will be conducted at NYS Media Services Center, Suite 146, South Concourse, Empire State Plaza, Albany, NY.

For further information, contact:

Office of Commission Operations,

Department of Civil Service,

Empire State Plaza, Agency Bldg. 1,

Albany, NY 12239 
 (518) 473-6598

An alleged past practice concerning compensation is not relevant to the parties' contractual rights and responsibilities absent a contractual provision requiring the continuation of the alleged past practices

An alleged past practice concerning compensation is not relevant to the parties' contractual rights and responsibilities absent a contractual provision requiring the continuation of the alleged past practices

Matter of Detectives' Endowment Assn., Inc. of the Police Dept. of the City of N.Y. v City of New York,125 AD3d 475

In this action the Appellate Division considered the viability of grieving an alleged violation of a claimed “past-practice” in the event the subject of the alleged past-practice is reflected in the terms and conditions of the collective bargaining agreement.

Supreme Court had granted the Detectives' Endowment Association’s [Association], petition to annul a determination of New York City Board of Collective Bargaining [Board] denying the Association’s demand for the arbitration of a grievance based on an alleged departed from a past practice related to salaries paid to detectives. Supreme Court annulled the Board’s decision and directed the parties to proceed to arbitration of the grievance.

The Board appealed and the Appellate Division reversed the lower court’s ruling.

The Board had found that the Association’s grievance was not arbitrable due to the lack of a reasonable relationship between the relevant provisions of the collective bargaining agreements and the claim that the New York City Police Department improperly departed from its past practice by paying salaries to detectives that were lower than those paid to officers.

The Appellate Division held that the Board “had a rational basis and was not arbitrary and capricious, citing NYC Dept. of Sanitation v MacDonald, 87 NY2d 650.

Although the Association had argued that its grievance alleged an "inequitable application" of the parties' contracts, thereby satisfying the contractual definition of an arbitrable grievance," the Appellate Division rejected that Association's argument concerning the relationship between the alleged past practice and the relevant provisions in the collective bargaining agreement. 

The court explained that Association’s contention that the contractually provided salary schedule improperly departed from the alleged past practice was not "relevant to the parties' contractual rights and responsibilities" in the absence of any contractual provision requiring or preserving the continuation of past practices as to salaries, citing Chenango Forks CSD v NYS  Public Employment Relations Board, 21 NY2d 255.

Further, said the court, the Association made no claim that the alleged past practice would have been relevant to any other contractual issue, such as the interpretation of an ambiguous provision.”

* The Appellate Division noted that the collective bargaining agreement included an "inequitable application" provision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01183.htm

Courts apply a “two-part” test to determine if a dispute founded on an alleged violation of a collective bargaining agreement is arbitrable

Courts apply a “two-part” test to determine if a dispute founded on an alleged violation of a collective bargaining agreement is arbitrable
Matter of County of Greene (Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Greene County Unit 7000, Greene County Local 820), 2015 NY Slip Op 04709, Appellate Division, Third Department

In March 2010 the Green County Civil Service Commission (Commission) adopted a resolution amending its rule governing the probationary term required of new employees to provided that the probationary term shall be a minimum of  8 weeks to a maximum of  52 weeks rather than from a minimum of 8 weeks to a maximum of 26 weeks. The Commission's resolution was approved by the State Civil Service Commission in February 2011.*

In February 2012, Green County (County) and Green County CSEA Unit 7000, Local 820 [CSEA], executed a collective bargaining agreement (CBA) pursuant to Article 14 of the Civil Service Law, the so-called "Taylor Law.". The CBA, in pertinent part, provided that "[a]n employee in the competitive, noncompetitive or labor classes shall be on probation for a period of twenty-six (26) weeks from the date of appointment."**

Subsequently CSEA filed a grievance contending that the County had violated the CBA by requiring unit members to serve a probationary period in excess of the 26 weeks on unit members. In response to the Greene County Administrator’s denial of the grievance on the grounds that the Civil Service Probationary Rules for Greene Countycontrolled. CSEA filed a demand for arbitration. The County then filed a petition pursuant to CPLR 7503 seeking to stay arbitration; CSEA cross-moved to compel arbitration.

Supreme Court granted the County's application and denied CSEA's cross application. CSEA appealed the court’s ruling.

Citing Chautauqua County v CSEA Local 1000, 8 NY3d 513, the Appellate Division said that "The threshold determination of whether a dispute is arbitrable is well settled. Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance. If no prohibition exists, we then ask whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement. If there is a prohibition, our inquiry ends and an arbitrator cannot act."

The Appellate Division then noted that "[w]hen a county civil service commission, possessing the requisite authority, promulgates a rule establishing the length of a probationary term of service that rule has the effect of law … the public employer and the union cannot negotiate a contrary provision in a CBA.”

The court however, concluded that the provision in the COB did not offend the Commission’s rules, explaining that:

1. The CBA executed by the County and the Union long after the Commission modified the probationary term; and

2. The provision in the CBA “is not inconsistent with the new Commission rule, as the probationary term negotiated by the parties falls squarely within the range promulgated by the Commission.”

As to the first test -- was there a statutory, constitutional or public policy prohibition against arbitration of the grievance -- the Appellate Division said that it discerned “no statutory or public policy bar to arbitration of the grievance in the first instance.”

As to the second test – did the parties actually agreed to arbitrate this particular dispute – the court said that the relevant CBA “contains a broad arbitration clause, which encompasses ‘any claimed violation, misrepresentation or improper application’ of the CBA.” The inclusion of such language, said the Appellate Division, “persuaded [it] that the Union's grievance falls within the scope of disputes that the parties agreed to submit to arbitration.”

The Appellate Division reversed the Supreme Court's order, denying the County's application to stay arbitration and granting the Union's cross application to compel arbitration.

* Civil Service Law §20.2 provides, in pertinent part, that “The rules and any modifications thereof adopted by a county civil service commission or county personnel officer or by a regional civil service commission or regional personnel officer shall be valid and take effect only upon approval of the state civil service commission.”

** This provision in the collective bargaining agreement may prove to be a demonstration of the Doctrine of Unintended Consequences. The CBA language cited in the Appellate Division's opinion provides that a new employee "shall be on probation for a period of twenty-six (26) weeks from the date of appointment." Reading this language narrowly, it could be argued that the minimum period of probation is identical to the maximum period of probation. This would result in the individual having attained "instant tenure" in the position in view of the fact that case law provides that a probationary employee is entitled to "notice and hearing" in the event the appointing authority wishes to terminate the individual during his or her minimum period of probation [see McKee v. Jackson, 152 AD2d 54]. In contrast, a probationary employee may be removed from the position without notice and hearing after completing his or her minimum period of probation and prior to the completion of  his or her maximum period of probation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04709.htm

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