“Scam” Emails Involving Notices to Appear in Court

“Scam” Emails Involving Notices to Appear in Court

Source: New York State Unified Court System

It has come to the attention of the New York State Unified Court Systemthat scam emails, purporting to be coming from the New York State Court System, directing recipients to report to court and to open an attachment for more information, are infecting recipients’ computers with a virus.

The New York State Unified Court System has posted the following warning on the Internet::

“These scam emails typically instruct recipients to report to court on a specific day and time, and they often direct the recipient to bring documents and witnesses with them. They also typically warn that the court may proceed in their absence and that they will be sanctioned if they do not appear. The emails also instruct recipients to read a court notice that is attached. The attachment contains a computer virus. Do not open the attachment. Delete the email.

“Be on the alert. If you are not involved in a court proceeding and have not supplied the NYS courts with an email address for receiving court notifications, the courts do not communicate with you by email. The court system does not send unsolicited emails or requests for personal information. The court system does not send emails threatening sanctions if you do not appear in court. Nor does the court system send emails that ask you to open attachments in order to obtain additional information.

“If you have a question about a notice you have received from the New York State Unified Court System, please call 1-800-Court-NY.”

For more information about online scams, contact the NYS Office of the Attorney General:
http://www.ag.ny.gov/internet/common-online-scams

and/or the United States Federal Trade Commission:
http://www.consumer.ftc.gov/articles/0003-phishing

Remember, if you are unsure of the origin of a message, don’t open it, don’t reply to it and don’t click on any links within the message - delete the message.

Education Department posts proposed Probationary Appointments and Tenured Teacher Disciplinary Hearing Regulations

Education Department posts proposed Probationary Appointments and Tenured Teacher Disciplinary Hearing Regulations

EMERGENCY/PROPOSED RULE MAKING - NO HEARING(S) SCHEDULED
I.D. No. EDU-27-15-00006-EP filed June 6, 2015 effective June 23, 2015

The Education Department said that the proposed rule is necessary to conform the Commissioner’s Regulations to changes in the Education Law enacted in Subparts D and G of Part EE of Chapter 56 of the Laws of 2015, relating to probationary appointments and tenured teacher hearings.It is anticipated that the proposed rule will be presented for adoption as a permanent rule at the September 16-17, 2015 Regents meeting, which is the first scheduled meeting after expiration of the 45-day public comment period prescribed in the State Administrative Procedure Act for State agency rule makings.

Full text is posted at the following State website:

http://www.regents.nysed.gov/meetings/2015/2015-06/higher-education

The following is a summary of selected parts of the proposed rule:

§30-1.3 is amended to provide that for appointments of classroom teachers and building principals made on or after July 1, 2015, the board resolution must reflect that, except to the extent required by the applicable provisions of Education Law §§2509, 2573, 3212 and 3014, in order to be granted tenure, the classroom teacher or building principal shall have received composite or overall annual professional performance review ratings pursuant to Education Law §§ 3012-c and/or 3012-d of either effective or highly effective in at least three (3) of the four (4) preceding years and if the classroom teacher or building principal receives an ineffective composite or overall rating in the final year of the probationary period he or she shall not be eligible for tenure at that time.

The Title of Subpart 82-1 and §82-1.1 are amended to provide that Subpart 82-1 applies to hearings on charges against tenured school employees pursuant to §3020-a of the Education Law that are commenced by the filing of charges on or after August 25, 1994 and prior to July 1, 2015.

A new Subpart 82-3 is added, relating to hearings on charges against tenured school employees pursuant to §3020-a of the Education Law that are commenced by the filing of charges on or after July 1, 2015. §82-3.1, Application of this Subpart, provides that Subpart 80-3 applies to hearings on charges against tenured school employees pursuant to §§3020-a and 3020-b of the Education Law that are commenced by the filing of charges on or after July 1, 2015.

§82-3.10 establishes procedures for probable cause hearings related to suspensions without pay of employees charged with misconduct constituting the physical or sexual abuse of a student.

Other sections provide for requesting a hearing; sets forth the requirements andprocedures for requesting a hearing;  the appointment of hearing officer in standard andexpedited §3020-a proceedings and similar procedural matters addressing disciplinary actions taken against educators and administrators.

Text of rule and any required statements and analyses may be obtained from: Kirti Goswami, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov

Data, views or arguments may be submitted to Peg Rivers, State Education Department, Office of Higher Education, Room 979 EBA, 89 Washington Ave., Albany, NY 12234, (518) 486-3633, email: regcomments@nysed.gov

Public comment will be received until 45 days after publication of this Notice. [Notice was published in the NYS Register dated July 8, 2015.]

Recent decisions by New York City’s Office of Administrative Tribunals and Hearings Administrative Law Judges

Recent decisions by New York City’s Office of Administrative Tribunals and Hearings Administrative Law Judges

The material highlighted inblue links to the full text of the decision

Absence on Family Medical Leave - In 2008 respondent was granted leave under the Family Medical Leave Act (FMLA) and was instructed to provide a certificate of clearance from his doctor before returning to duty. After his leave was exhausted, respondent failed to return to work. He was charged with being AWOL and was demoted without a hearing. Respondent subsequently reported to work in 2009 and presented medical documentation that he was fit to return to work. Respondent was advised that he was not cleared for duty and that the agency would get back to him. Five years later, the agency charged respondent with being AWOL between 2009 and 2014. Administrative Law Judge Alessandra F. Zorgniotti found that the agency did not prove the charges because respondent made several attempts to return to work and that the agency left his employment status in an indeterminate state.   DOITT v. Anonymous, OATH Index No. 051/15.

Off-duty assault - Respondent, a civilian employee working as a cement mason in a City jail, was charged with misconduct for two alleged off-duty assaults. Respondent presented testimony from his therapist showing that he suffers from bipolar disorder, and he has taken substantial steps to keep his disorder under control with medication and therapy. Administrative Law Judge [ALJ]. Kevin F. Casey found that only one of the assaults was proven. ALJ Casey found that termination of employment would be excessive, since misconduct was attributable to respondent's disability. He recommended a 45-day suspension without pay, with credit for time served.   Dep't of Correction v. A.A., OATH Index No. 2757/14.

Use of excessive force by a correction officer -  A correction officer was charged with using excessive force against an inmate on two occasions. Administrative Law Judge John B. Spooner found that one set of charges was barred by the 18-month statute of limitations in the Civil Service Law. Regarding the second set of charges, which were timely, the Department proved that the officer hit an inmate in the head, while escorting him on a gurney, and had submitted a false report denying that he had used force. The recommended penalty was a forty-day suspension without pay.   Dep't of Correction v. Arias, OATH Index No. 920/15, [adopted.] 

Making a false statement - A correction officer was charged with failing to comply with the Department's undue familiarity rules and making false statements. Respondent notified the Department that a "family member" was housed in a City jail and that she would be posting his bail and sending mail and money to him. The inmate was later transferred to a state prison and, for a year, respondent failed to notify the Department that she would have similar contact with the inmate while he was in the state facility. At trial respondent acknowledged that the inmate is her significant other with whom she had lived with for more than seven years. Administrative Law Judge [ALJ] Tynia D. Richard recommended that false statement charges be sustained but the undue familiarity charges be dismissed. The ALJ found that respondent provided sufficient notification to comply with the undue familiarity rules, and her identification of the inmate as a "family member" was not misleading since Department rules do not require a more detailed description. The ALJ recommended a penalty of 15-day suspension for false statements.   Dep't of Correction v. Caldwell, OATH Index No. 2702/14.

Throwing an object at a co-worker - An employee was charged with raising her voice to a co-worker stating "you messed up" and "I am tired of this", and throwing a binder clip at the co-worker. The employee admitted that she had raised her voice and that she threw the binder clip in the co-workers' direction, but did not mean to hit her with the clip. Administrative Law Judge [ALJ] Kara J. Miller found the employee's testimony to be credible and ruled that she could only be disciplined for throwing the binder clip in the co-workers' direction. Statements made during the argument did not constitute misconduct as it was not shown that the disagreement, which was brief, disrupted the office. ALJ Miller recommended a five-day suspension, with credit for time served in pre-hearing suspension.   Dep't of Education v. Collins-Jackson, OATH Index No. 832/15. 

Videotape evidence - Administrative Law Judge [ALJ] Faye Lewis found that a correction officer used unnecessary and excessive force against an inmate. Videotape evidence, documentary proof of the inmate's head injuries and testimony from an officer who witnessed the incident, proved that the officer struck the inmate in the head without provocation and stomped the inmate's head two times while he was lying on the floor. Respondent's claim that he used force because he reasonably believed that the inmate had a weapon and he feared for his life, was not supported by any evidence other than respondent's testimony, which ALJ Lewis found to be incredible. Termination of employment was recommended.   Dep't of Correction v. Victor, OATH Index No. 388/15, [adopted,]

Claiming and denying benefits available pursuant to General Municipal Law §207-c

Claiming and denying benefits available pursuant to General Municipal Law §207-c

2015 NY Slip Op 05476, Appellate Division, Second Department

This decision by the Appellate Division illustrates some of the procedural elements involved in claiming and providing benefits available to law enforcement personnel injured in the performance of his or her official duties.

The genesis of the case was the Town’s adopting the findings and recommendations of a hearing officer that a Town Police Officer [Officer] was [1] not physically able to perform his regular police duties and [2] that his continuing left knee complaints were not related to a certain line-of-duty incident. The Town adopted the hearing officer’s findings and terminated the Officer’s General Municipal Law §207-c, benefits. The Town also declined to re-credit Officers leave credits that used to remain on the payroll while absent from work under color of his having a work-connected disability.

Ultimately the Appellate Division found that Officer had been injured in the line of duty and received benefits pursuant to General Municipal Law §207-c. However the court also found that an orthopedic surgeon appointed by the Town to examine Officer subsequently concluded that Officer had a preexisting "condition" involving his left knee that was the proximate cause of his present knee condition, and that Officer was fit for full duty.

The Appellate Division’s decision states that when the Town's Chief of Police directed Officer to report for full duty he protested and the Chief then directed him to return to work in a "transitional, restricted-duty" capacity. Officer’s treating orthopedic surgeon submitted a letter disputing the Town’s medical examiner’s conclusion that Officer was fit to return to full duty but opined that Officer was fit for a light duty assignment that would accommodate his physical limitations.

When directed to report for restricted duty, Officer requested a hearing in order to challenge the Town discontinuing his General Municipal Law §207-c benefits as was his right under the controlling the collective bargaining agreement between the Town and the Officer's employee organization. Officer then returned to work in a restricted-duty capacity. The Town denied Officer’s request for a hearing.

The Officer’s employee organization then demanded that the issue of Officer’s right to a hearing be submitted to arbitration. The arbitrator ruled that Officer did have a right to a hearing concerning the termination of his General Municipal Law §207-c benefits. Upon receipt of the arbitrator's award Officer “advised his superior officer of his position that he was not required to report for work in any capacity until the conclusion of the hearing.”

Officer’s superior, in turn, advised Officer that he was required to continue his "light duty" assignment in accordance with provisions set out in General Municipal Law §207-c and that his failure to report for duty would be  considered being absent from duty without proper authorization. Officer elected to absent himself from work and used his accumulated leave credits [1] in order to be continue on the payroll in lieu of General Municipal Law §207-c payments to cover his absence from work pending the hearing and [2] to avoid disciplinary action.

The hearing officer appointed to determine if Officer was physically able to perform his regular duties and whether his continuing disability, if any, was related to the line-of-duty incident found that Officer:

[1] Was not physically able to perform his regular duties and

[2] His inability to perform his regular duties was not the result of any work-related incident.

The Town Board adopted the hearing officer's findings of fact and recommendations and terminated the Officer’s General Municipal Law §207-c benefits. The Town also determined that Officer was not entitled to be re-credited with any of the leave credits he used during his absence from work after being told to report for duty by his superior.

Officer next commenced a proceeding pursuant to CPLR Article 78 to review the Town’s determinations. The Supreme Court granted that part of Officer’s petition providing for the annulment of the Town’s determination not to re-credit Officer’s leave time he used from January 17, 2012, to November 20, 2012 and the Town was directed to re-credit him with that leave time. The court then transferred the proceeding to Appellate Division.

Having the full record before it, the Appellate Division, “in the interest of judicial economy,” decided to consider the case “on the merits.”

The court said:

1. A disabled officer receiving General Municipal Law §207-c benefits is entitled to a due process hearing before those benefits may be terminated when the officer submits medical evidence contesting the finding of a municipality's appointed physician that the officer is fit for duty.

2. Once such evidence has been submitted, an "order to report for duty may not be enforced, or benefits terminated,” pending adjudication of the individual's claim in an administrative hearing, which hearing decision itself is subject to review under CPLR Article 78.

3. Where the municipality's physician is of the opinion that the officer is able "to perform specified types of light police duty," payment of the full amount of salary or wages may be discontinued should the officer refuse to perform such light police duty if an appropriate assignment "is available and offered to [the officer]" and enables him or her "to continue to be entitled to his [or her] regular salary or wages."

4. If an officer who refuses to return to light duty fails to provide medical proof that he or she is unable to do so, the municipality may discontinue his or her §207-c benefits without a hearing.

Here, said the Appellate Division, there is no dispute that Officer [a] was able to perform a light-duty assignment; [b] received and followed an order to return to work and perform a restricted duty assignment, for which he received his full salary; [c] refused an offer to continue performing this light-duty assignment, although he remained able to so; [d] the granting of a General Municipal Law §207-c hearing did not excuse Officer from performing his light-duty assignment; and [e] received an unequivocal order to return to his light-duty assignment, which her refused to obey, electing instead to use his accumulated leave time in order to remain on the Town's payroll.

The Appellate Division concluded that when Officer refused to return to his light-duty assignment, the Town was entitled to discontinue his §207-c benefits without a hearing. Accordingly, the Town's determination not to re-credit the accumulated leave time he used to remain on the payroll was not arbitrary and capricious and must be sustained.

The court also commented that the hearing officer's determination that Officer’s disability was not causally related to the line-of-duty incident was supported by substantial evidence. The hearing officer, said the Appellate Division, was free to credit the testimony and reports of the Town's medical expert over the conflicting opinion of the Officer's treating orthopedic surgeon.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05476.htm

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Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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Unpaid interns may be deemed employee depending on the beneficiary of their services

Unpaid interns may be deemed employee depending on the beneficiary of their services

Glatt et al. v. Fox Searchlight Pictures, Inc. et al., USCA, 2^nd Circuit, #13-4478

In a class action brought by unpaid interns claiming compensation as employees under the Fair Labor Standards Act [29 USC 207-06] and New York Labor Law [§652], the Circuit Court of Appeals said that when determining when is an unpaid intern entitled to compensation as an employee under the FLSA, the proper question is whether the intern or the employer is the primary beneficiary of the relationship.

The U.S. Department of Labor Division of Wages and Hours Fact Sheet #71 addresses Internship Programs under the Fair Labor Standards Act. This fact sheet provides general information to help determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act for the services that they provide to “for-profit” private sector employers.

Interns in the “for-profit” private sector who qualify as employees rather than trainees typically must be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek

However interns who receive training for their own educational benefit may not fall within the ambit of the FLSA if the training meets certain criteria.  The determination of whether an internship or training program meets this exclusion depends upon all of the facts and circumstances of each such program.

Fact Sheet #71 states that the following six criteria must be applied when making this determination:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2. The internship experience is for the benefit of the intern;

3. The intern does not displace regular employees, but works under close supervision of existing staff;

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of the factors listed above are met, an employment relationship does not exist within the meaning of the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern.  This exclusion from the definition of employment is necessarily quite narrow because the FLSA’s definition of “employ” is very broad.

Fact Sheet #71 is posted on the Internet at:

http://www.dol.gov/whd/regs/compliance/whdfs71.htm

The Circuit Court of Appeals decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/b92372d4-7346-4577-8924-55627b066916/2/doc/13-4478_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b92372d4-7346-4577-8924-55627b066916/2/hilite/