Certain compensation paid to employees may be excluded in determine unemployment insurance benefits

Certain compensation paid to employees may be excluded in determine unemployment insurance benefits

2015 NY Slip Op 04552, Appellate Division, Third Department

A claimant [Worker] for unemployment insurance benefits challenged a decision of the Unemployment Insurance Appeals Board [Labor] holding that certain remuneration that claimant earned could not be used to establish entitlement to unemployment insurance benefits.

Worker, who had worked for multiple employers, filed for unemployment insurance benefits. During her base period, Worker’s employment included services performed as an election poll worker for the New York City Board of Elections.

Labor determined that Worker was entitled to unemployment insurance benefits, but that the remuneration received from the Board of Elections could not be considered in establishing her benefit rate because it did not constitute “covered employment.”

Worker had testified that she had responded to a card received in the mail from the Board of Elections asking if she was available to work on Election Day. She responded that she was available and subsequently received training. Worker was subsequently assigned to a polling place, where she worked as a poll worker or inspector on Election Day performing such duties as setting up and overseeing tables, signing in voters and instructing them on the use of the voting machines, keeping track of voting cards and printing a tally of votes at the end of the day, which were then reported to the Board of Elections.

The Appellate Division sustained the Board’s determination, noting that poll clerks, like election inspectors, are appointed, trained, compensated and perform duties as mandated by statute and overseen by the New York State Board of Elections.

Such individuals serving at polling places in New York City are compensated at a per diem rate established by the Mayor. Although the Board of Elections may have exercised some supervision over the poll workers and their training pursuant to the relevant, the Appellate Division said that “this is insufficient, by itself, to establish an employer-employee relationship, and the record is devoid of any proof that any such supervision exercised exceeded that required by law, or that additional duties or requirements were imposed beyond those provided by statute.”

The court also rejected Worker’s contention that she should have been deemed to be an employee “because taxes were withheld from her paycheck pursuant to a ruling by the Internal Revenue Service [IRS] that poll workers are considered employees for federal tax purposes” as such rulings by the IRS are not binding on the Board.

Finding that substantial evidence supported the Board's determination, the Appellate Division said that it would not be disturbed.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04552.htm

Adding parties to the litigation pursuant to the “relation-back" doctrine

Adding parties to the litigation pursuant to the “relation-back" doctrine

Crawford v City of New York, 2015 NY Slip Op 05267, Appellate Division, First Department

Barry E. Crawford initiated a lawsuit naming the City of New York and certain “John Does” as defendants. He later filed a motion to amend his complaint to substitute certain named New York City police officers in the place of the “John Does” initially named in his complaint relying on the "relation-back doctrine".*

Supreme Court granted Crawford’s motion; the Appellate Division reversed the lower court’s action “on the law.”

The Appellate Division ruled that Supreme Court “improvidently granted” Crawford’s motion to amend his complaint to add the individually named defendants in lieu of the "John Doe" defendants he had initially listed in his complaint after the statute of limitations expired under color of the relation-back doctrine. The court noted that Crawford did not deny that he was aware of the proper identity of these “John Doe” defendants four-and-one-half months prior to the expiration of the statute of limitations but waited another two years to move to amend his complaint after filing “a note of issue.”

The court explained that  there was no "mistake" by Crawford as to the proper identity of the parties within the meaning of the relation-back doctrine and that the “John Doe defendants" had every reason to believe that Crawford did not intend to sue them and that the matter had been laid to rest as far as these “John Doe” defendants were concerned.

* Essentially the application of the “relations back doctrine” permits something done “today” to be treated as if it were done at an “earlier” time, i.e., permitting a “later identified” individual to be sued in his or her own name rather than as an earlier named “John Doe” defendant.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05267.htm

Establishing a prima facie case of unlawful discrimination and, or, retaliation requires the complaints to set out the "protected activity" alleged to have been violated

Establishing a prima facie case of unlawful discrimination and, or, retaliation requires the complaints to set out the "protected activity" alleged to have been violated
2015 NY Slip Op 04937, Appellate Division, First Department

Supreme Court granted agency’s' motion for summary judgment dismissing the probationary employee’s [Probationer] complaint alleging gender discrimination in violation of the New York City Human Rights Law (Administrative Code of City of NY § 8-107[1][a]). The court ruled that Probationer failed to establish a prima facie case that she suffered an adverse employment action and that that action was taken under circumstances giving rise to an inference of discrimination. 

The Appellate Division affirmed the Supreme Court’s ruling.

The Appellate Division said that with the exception of her termination from her probationary employment, her complaints amounts to no more than "petty slights and trivial inconveniences" from which not harm resulted rather than her having suffered adverse employment action. The court explained that “While termination is indisputably an adverse action,” Probationer’s conclusory claim that her termination was motivated by a gender-related bias is insufficient to establish acts of unlawful discrimination as “stray derogatory remarks” without more, does not constitute evidence of unlawful discrimination.

Probationer also failed to raise an issue of fact whether the employer’s evidence of a legitimate, independent, and nondiscriminatory reason for her termination was pretextual and the real reason was gender discrimination. In the words of the Appellate Division, Probationer “does not dispute that she kept a departmental vehicle for nine consecutive days, during which time she used it only once for the authorized purpose of driving to a facility being audited, and that she inaccurately reported, in a daily log, the vehicle's use and overnight location.”

As to Probationer’s allegations of “retaliation,” the court said that Probationer failed to establish a prima facie case of retaliation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04937.htm

Free Webinar addressing the taxation of accumulated sick and leave pay for retiring employees

Free Webinar addressing the taxation of accumulated sick and leave pay for retiring employees

Source: Federal, State and Local Government Newsletter [IRS]

Webinar to be held on July 30, 2015; 2 p.m. (Eastern)

Topics to be addressed:

Determining when accumulated sick and vacation pay are subject to federal employment taxes

Determining when taxation can be deferred to a later year

Defining an elective employee contribution

Defining a non-elective employer contribution

Click here to Register for this event.

NOTE: You will use the same link to attend the event.

If you have any questions or comments, click her to send us an e-mail.

Another free Webinar:: Don’t forget to register for the webinar, Taxability of Fringe Benefits Part Three: Other Compensation and Payments to Employees on July 9, 2015; 2 p.m. (Eastern) Click here to Register

Expunging materials from an employee’s personnel file

Expunging materials from an employee’s personnel file

2015 NY Slip Op 05257, Appellate Division, First Department

In 2011 a New York City firefighter [Firefighter] and the New York City Fire Department [FDNY] entered into an agreement settling disciplinary charges filed against him.

Firefighter subsequently initiated an Article 78 action in Supreme Court seeking to compel FDNY “to expunge all materials placed in [Firefighter's] personnel file concerning a finding that he violated [FDNY’s] Equal Employment Opportunity policy” or, in the alternative, a court order compelling FDNY to grant Firefighter “a full and fair opportunity to challenge the allegations that he violated the policy.”

Supreme Court dismissed Firefighter’s petition, which ruling was affirmed by the Appellate Division.

The Appellate Division explained that Firefighter had waived any rights to the relief he now sought, the expungement of the certain materials from his personnel file or an opportunity to be heard on the allegations, when he and FDNY entered into the agreement settling the disciplinary charges that had been filed against him. Further, said the Appellate Division, Firefighter’s argument that the waiver provisions set out in the settlement agreement were inapplicable was improperly raised for the first time in a reply brief submitted by Firefighter.

Although Firefighter cited D’Angelo v Coppetta, 19 NY3d 663, in support of his claims for relief, the Appellate Division noted that his reliance on D’Angelo was misplaced “as there was no waiver [issue] in that case.” In D’Angelo the Court of Appeals concluded that “that the letter issued to [D’Angelo and placed in his file] constitutes a formal reprimand under [New York City’s] Administrative Code §15-113.” The D'Angelo court then ruled that because the appointing authority denied D’Angelo his right to due process by placing the letter in his file without conducting a hearing, “the letter was properly expunged from D’Angelo’s permanent EEO file.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05257.htm

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