Filing disciplinary charges against an individual is a condition precedent for a demand to an administrative disciplinary hearing

Filing disciplinary charges against an individual is a condition precedent to a demand for an administrative disciplinary hearing

2015 NY Slip Op 00587, Appellate Division, Third Department

Following an investigation, New York State’s Division of Human Rights [SDHR] issued a determination of no probable cause to believe that the employer, a school district [District] had engaged in unlawful discriminatory practices with respect to the compliant filed with it by a former District employee [Complainant]. Complainant challenged SDHR’s determination.

Supreme Court dismissed Complainant’s Article 78 petition; the Appellate Division sustained the Supreme Court’s ruling.

One of the issues considered by the Appellate Division was Complainant’s argument concerning her request for a disciplinary hearing pursuant to Education Law §3020-a.

While the Appellate Division said that this issue was “unpreserved because she did not raise it before SDHR or Supreme Court,” it observed that Complainant’s argument “lacks merit because the [District] never filed formal disciplinary charges against her.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_00587.htm

Pension Fund’s use of Social Security Administration’s decision to determine an applicant’s eligibility for disability pension benefits permitted

Pension Fund’s use of Social Security Administration’s decision to determine an applicant’s eligibility for disability pension benefits permitted

USCA, Second Circuit, Docket #14-877

The Federal District Court dismissed an ERISA action brought by a pension plan participant seeking a pension on the basis of permanent disability. The applicant had challenged the Pension Plan Fund’s [Fund] reliance on a determination made by the Social Security Administration [SSA] as to his eligibility for disability pension benefits available to enrollees in the Plan.

The U.S. Circuit Court of Appeals affirmed the District Court’s ruling, explaining that the terms of the pension plan at issue gave the Fund discretion to determine an applicant's eligibility for benefits under the plan and the Fund reliance on the Social Security Administration’s determinations with respect to applicant’s disability and eligibility for disability retirement benefits in accordance with the Plan’s policies and procedures was neither arbitrary nor capricious.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/01595904-aa2e-47ce-84fb-00511c19d71f/1/doc/14-877_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/01595904-aa2e-47ce-84fb-00511c19d71f/1/hilite/

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