From the Blogs - Posted by Employment Law News, WK WorkDay

From the Blogs - Posted by Employment Law News, WK WorkDay

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DOL fact sheet lays out joint employer responsibilities under FMLA

Posted: 02 Feb 2016 06:24 AM PST

Business owner can’t show fired employee unlawfully retaliated via zoning ordinance enforcement

By Dave Strausfeld, J.D.

Police chief gets qualified immunity despite retaliation for union employee’s criticism

By Ronald Miller, J.D.

Walmart pharmacist fired after reporting legal and safety concerns wins $31.2M verdict 
By Pamela Wolf, J.D.

ERIC comments critique EEOC’s proposed GINA wellness regulations

Posted: 01 Feb 2016 06:16 AM PST

Overzealous matchmaking by mother of CEO supports employee’s Title VII claims

By Lorene D. Park, J.D.

EEOC proposes electronic submission of compensation data in EEO-1 Report

By Cynthia L. Hackerott, J.D.

Restoration of leave credits used by employees electing to remain on the payroll while on Workers’ Compensation Leave pursuant to Civil Service Law §71

Restoration of leave credits used by employees electing to remain on the payroll while on Workers’ Compensation Leave pursuant to Civil Service Law §71

Galuski v New York State Div. of Military & Nav. Affairs, 2016 NY Slip Op 00562, Appellate Division, Third Department

Ruth A. Galuski sustained a work-related back injury on November 29, 2011and was out of work from December 5, 2011 until January 3, 2012. During this time, the Division of Military and Naval Affairs [DMNA] paid her full wages, as she had accumulated enough leave credits to cover the entirety of her absence.

Galuski also applied for workers' compensation benefits, and a Workers' Compensation Law Judge (WCLJ) issued a decision that granted her application, awarded her compensation and directed DMNA's insurance carrier to reimburse DMNA for wages it had paid to Galuski during her injury-related lost time from work.

Although DMNA’s insurance carrier reimbursed DMNA within 10 days of the WCLJ's decision, DMNA failed to restore Galuski's accrued leave credits until February 2013. 

Contending that DMNA’s restoration of Galuski’s leave credits was untimely within the meaning of Workers’ Compensation Law §25(3)(f), Galuski sought imposition of a penalty. After a hearing, the WCLJ declined to impose a penalty, and a panel of the Workers' Compensation Board upheld that decision. Galuski appealed.

The Appellate Division sustained the Board’s determination, explaining that the terms of the WCLJ's initial award provide for Galuski's direct compensation, which was paid in advance by DMNA when she received her full wages, as well as an express requirement that the carrier reimburse DMNA for the wages it had paid to claimant.

However, said the court, the award makes no mention of any obligation on DMNA’s part to timely restore Galuski's sick leave credits and as “restoration of leave time was not included in the terms of the award,” the Appellate Division concluded that the Board properly upheld the WCLJ's decision and declined to impose a penalty on DMNA.

It should be noted that certain Workers’ Compensation Leave benefits are provided to employees of the Division of Military and Naval Affairs in a negotiating unit covered by the collective bargaining agreement between the State and the Civil Service Employees Association, Inc., for the period April 2, 2011 to April 1, 2016. The relevant provision of this agreement, Article 11, Workers’ Compensation Benefits,  is posted on the Internet at: http://www.goer.ny.gov/Labor_Relations/Contracts/Current/cseadmna/2011_16_DMNA_Contract.pdf

Employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, the rules for the Classified Service provide as follows with respect to Workers’ Compensation Leave applicable the employees in a collective bargaining unit:*

4 NYCRR 21.8 (d) provides for Workers’ Compensation Leave with pay as follows:

“(d.) (1) The appointing authority upon finding that the employee is in fact disabled from the performance of his duties, may grant the employee full pay during such leave not exceeding cumulatively six months. Such full pay may be granted irrespective of the employee's accrued credits under this Chapter.

“(2) Except when on full pay status under paragraph (1) of this subdivision, the employee may draw accrued vacation, overtime and sick leave credits, subject to the provisions of this Chapter pertaining thereto.

“(3) If not drawing full pay under paragraph (1) or paragraph (2) of this subdivision, an employee may, in the discretion of the appointing authority, be allowed to draw personal leave and sick leave at half pay for which he may be eligible under this Chapter.”

Further, with respect an employee’s use of his or her leave credits while on Workers’ Compensation Leave, 4 NYCRR 21.8(g) provides for the “Restoration of leave credits” as follows:

“(g) Leave credits, including sick leave at half pay, used by an employee during a period of absence for which an award of compensation has been made and credited to the State as reimbursement for wages paid shall be restored to him in full; provided, however, that no restoration shall be made for any absence of less than a full day. Credits so restored may not again be used for future absences attributable to the same injury. In the event that the employee dies, resigns, retires or continues absent beyond one year without further leave, cash payment for vacation and overtime credits, including any credits restored under this subdivision, shall be made in accordance with the appropriate provisions of this Chapter. In any other case, an employee restored to service after absence on leave under this section shall have one year from the date of such restoration to reduce his accrued leave credits to the limits prescribed in this Chapter.”

Attendance Rules for officers and employees designated Managerial or Confidential within the meaning of Article 14 of the Civil Service Law [the Taylor Law] serving in New York State Departments and Institutions are set out in 4 NYCRR Parts 27 through 33.

* N.B. 4 NYCRR 26.3 provides in the event there a collective bargaining agreement between the State and an employee organization the provisions these rules and the rules set out in the collective bargaining agreement shall “shall both be applicable” except that in the event “the provisions of the agreement are different from the provisions of [these] attendance rules, the provisions of the agreement shall be controlling.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00562.htm

Body piercings and dress codes

Body piercings and dress codes

From the Blogs - Posted by Employment Law News, WK WorkDay, A service provided by Wolters Kluwer Legal & Regulatory U.S.

Noting that during the 21st century, body piercings, tattoos, and long beards have come into vogue and become commonplace, and arbitrator recently sustained a grievance filed by a union member seeking to quash her employer’s written disciplinary warnings issued for her failure to remove facial piercings (Amalgamated Transit Union, Local 1070 and Indianapolis Public Transportation Corp., Nov. 18, 2015, Daniel Zeiser, Arbitrator).

In 2009, prior to being hired as a bus driver in 2013, the grievant elected to receive three micro dermal piercings in her cheek. The process involved the insertion of an anchor through a hole in the cheek created by a thin needle. The anchor included a flat base and an arm that extended through the skin, into which could be inserted a jewel or a stone.

She chose to undergo this permanent process because it reminded her of something her mother wore when she was young. Her cheek, however, rejected one of the piercings, leaving two implants and a scar where the third implant failed.

The bus company that hired her had a Dress and Personal Appearance Policy that applied to employees with regular public contact, to project a professional image to riders and to the general public. The company updated its policy in 2014, which included an accessories section that limited the size of earrings that could be worn and limited earrings to one per ear, but it said nothing about face piercings. In September of 2014, however, the employer issued a notice about winter uniforms that included a ban on all facial piercings. Following the issuance of the September ban on facial piercings, the employer ordered the employee to remove her piercings. When she failed to do so, the employer issued a written warning. She failed to remove the facial implants because they could not easily be removed like other piercings, requiring instead plastic surgery at great expense. She then filed a grievance contesting the employer’s decision.

An employer is permitted to adopt rules of personal appearance as long as the rules have a reasonable relationship to (1) the employer’s image or (2) health and safety considerations. Furthermore, employers are not permitted to regulate an employee’s personal appearance away from work, unless harm is caused to the employer’s business by that appearance.

In this case, the employer had the right to institute the dress policy. The arbitrator determined, however, that the ban on facial piercings was unreasonable because the employer could not prove any harm to its business. The employer, for example, never surveyed customers about their attitudes to the piercings, never learned whether other transit systems disciplined employees for facial piercings, and never sought to find out if piercings had an impact on funding. The arbitrator noted that many riders themselves had piercings and that no complaints had been received. As a result, he sustained the grievance and ordered that the written warning be removed from her file.

The right to a disciplinary hearing survives the individual’s resignation or retirement from the position

The right to a disciplinary hearing may survive the individual’s resignation or retirement from the position

Hughes v. County of San Bernardino, California Court of Appeals, Docket E-060294

Robert Hughes had been served with, and found guilty of, certain disciplinary charges. The penalty imposed: a 15-day suspension without pay, which resulted in a loss of about $7,000 in pay.

Hughes initiated an administrative appeal pursuant to the San Bernardino County’s civil service rules, but missed the scheduled hearing after suffering a heart attack. Hughes retired for medical reasons before the appeal hearing could be rescheduled.

The County refused to reschedule the hearing, contending that he was no longer an employee entitled to an administrative appeal. The San Bernardino Civil Service Commission ruled that it had no jurisdiction to continue with the appeal. 

Ultimately the California Court of Appeal ruled that Hughes was entitled to complete his administrative appeal as provided in the County's Personnel Rules.

In Blair v Horn* a New York Supreme Court justice considered the same issue, and came to a similar conclusion.

Clinton Blair sued the New York City Department of Correction (DOC) seeking a court order directing DOC to reinstate him to his former position and to schedule a hearing on the disciplinary charges that were pending against him at the time of his retirement after the Department had denied his request for such a hearing.

The court ruled that in this instance it was not irrational for DOC to treat the employment relationship as terminated as Blair was no longer working and remained on the payroll solely for purposes of exhausting leave that had been approved in anticipation of the termination of his employment.

While the court sustained DOC’S determination denying Blair’s request to “withdraw his retirement,” the court nevertheless ruled that Blair was entitled to a hearing on the disciplinary charges so that he may have an opportunity to contest them. In the words of the court, “His resignation during the pendency of charges does not terminate the proceeding against him.” 

In effect, these decisions provided Hughes and Blair, respectively, "name clearing hearings." As the Court of Appeals held in Matter of Stanziale, 55 NY2d 735, where it is alleged that the basis or reason for dismissal of an individual is of a "stigmatizing nature" and there has been "publication" of such a basis or reason, the individual is entitled to some due process so as to clear his or her name.**

Although in both Hughes and Blair the courts ruled that an individual was entitled to go forward with a disciplinary hearing despite resignation or retirement, the converse is also possible wherebythe employer may elect to go forward and prosecute disciplinary charges that were pending at the time an individual left its employ and  the employee's resignation or retirement will not defeat the appointing authority's ability to go forward with the disciplinary action.

In other words, a disciplinary action may survive the individual’s resignation or retirement from his or her position.

4 NYCRR 5.3(b), which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service,*** permits the appointing authority to elect to disregard a resignation filed by an employee and to prosecute disciplinary charges and, in the event that such employee is found guilty of such charges and the penalty imposed is dismissal from the his or her employment, to record his or her separation as a dismissal rather than as a resignation.

The significance of this is that should the appointing authority elect to proceed with the disciplinary notwithstanding the employee’s resignation from the position and finds the individual guilty of such charges and imposes the penalty of “dismissal,” should a  prospective employer asks if the individual had ever been removed from his or her employment “for cause,” the correct answer would be “yes.” Further, such an individual may be found to be disqualified for unemployment insurance benefits.

Further, the decision in Blair suggests that a court could deem a retirement to be the equivalent of a resignation for the purposes of 4 NYCRR 5.3(b).

* Blair v Horn, 2008 NY Slip Op 32581(U)[Not selected for publication in the Official Reports], is posted on the Internet at: http://www.leagle.com/decision/In%20NYCO%2020080929167/IN%20THE%20MATTER%20OF%20BLAIR%20v.%20HORN

** For example, a provisional employee [see Browne v City of New York, 45 AD3d 590] or a probationary employee who has been terminated from his or her position [see Donato v Plainview-Old Bethpage Central School District, 96 F.3d 623,] or an individual alleging his or her retirement was a “coerced" retirement” [see Murphy v City of New York, 35 AD3d 319], among others, may be entitled to a name-clearing hearing if the reasons for his or her separation have been made public by the employer and those reasons tend to “stigmatize” the individual [see Matter of Brathwaite, 70 AD2d 810].

*** Although 4 NYCRR 5.3(b) applies only to these entities, many local civil service commissions have adopted a similar rule.

The Hughes decision is posted on the Internet at: http://law.justia.com/cases/california/court-of-appeal/2016/e060294.html

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

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The right to a disciplinary hearing survives the individual’s resignation or retirement from the position

The right to a disciplinary hearing may survive the individual’s resignation or retirement from the position

Hughes v. County of San Bernardino, California Court of Appeals, Docket E-060294

Robert Hughes had been served with, and found guilty of, certain disciplinary charges. The penalty imposed: a 15-day suspension without pay, which resulted in a loss of about $7,000 in pay.

Hughes initiated an administrative appeal pursuant to the San Bernardino County’s civil service rules, but missed the scheduled hearing after suffering a heart attack. Hughes retired for medical reasons before the appeal hearing could be rescheduled.

The County refused to reschedule the hearing, contending that he was no longer an employee entitled to an administrative appeal. The San Bernardino Civil Service Commission ruled that it had no jurisdiction to continue with the appeal. 

Ultimately the California Court of Appeal ruled that Hughes was entitled to complete his administrative appeal as provided in the County's Personnel Rules.

In Blair v Horn* a New York Supreme Court justice considered the same issue, and came to a similar conclusion.

Clinton Blair sued the New York City Department of Correction (DOC) seeking a court order directing DOC to reinstate him to his former position and to schedule a hearing on the disciplinary charges that were pending against him at the time of his retirement after the Department had denied his request for such a hearing.

The court ruled that in this instance it was not irrational for DOC to treat the employment relationship as terminated as Blair was no longer working and remained on the payroll solely for purposes of exhausting leave that had been approved in anticipation of the termination of his employment.

While the court sustained DOC’S determination denying Blair’s request to “withdraw his retirement,” the court nevertheless ruled that Blair was entitled to a hearing on the disciplinary charges so that he may have an opportunity to contest them. In the words of the court, “His resignation during the pendency of charges does not terminate the proceeding against him.” 

In effect, these decisions provided Hughes and Blair, respectively, "name clearing hearings." As the Court of Appeals held in Matter of Stanziale, 55 NY2d 735, where it is alleged that the basis or reason for dismissal of an individual is of a "stigmatizing nature" and there has been "publication" of such a basis or reason, the individual is entitled to some due process so as to clear his or her name.**

Although in both Hughes and Blair the courts ruled that an individual was entitled to go forward with a disciplinary hearing despite resignation or retirement, the converse is also possible wherebythe employer may elect to go forward and prosecute disciplinary charges that were pending at the time an individual left its employ and  the employee's resignation or retirement will not defeat the appointing authority's ability to go forward with the disciplinary action.

In other words, a disciplinary action may survive the individual’s resignation or retirement from his or her position.

4 NYCRR 5.3(b), which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service,*** permits the appointing authority to elect to disregard a resignation filed by an employee and to prosecute disciplinary charges and, in the event that such employee is found guilty of such charges and the penalty imposed is dismissal from the his or her employment, to record his or her separation as a dismissal rather than as a resignation.

The significance of this is that should the appointing authority elect to proceed with the disciplinary notwithstanding the employee’s resignation from the position and finds the individual guilty of such charges and imposes the penalty of “dismissal,” should a  prospective employer asks if the individual had ever been removed from his or her employment “for cause,” the correct answer would be “yes.” Further, such an individual may be found to be disqualified for unemployment insurance benefits.

Further, the decision in Blair suggests that a court could deem a retirement to be the equivalent of a resignation for the purposes of 4 NYCRR 5.3(b).

* Blair v Horn, 2008 NY Slip Op 32581(U)[Not selected for publication in the Official Reports], is posted on the Internet at: http://www.leagle.com/decision/In%20NYCO%2020080929167/IN%20THE%20MATTER%20OF%20BLAIR%20v.%20HORN

** For example, a provisional employee [see Browne v City of New York, 45 AD3d 590] or a probationary employee who has been terminated from his or her position [see Donato v Plainview-Old Bethpage Central School District, 96 F.3d 623,] or an individual alleging his or her retirement was a “coerced" retirement” [see Murphy v City of New York, 35 AD3d 319], among others, may be entitled to a name-clearing hearing if the reasons for his or her separation have been made public by the employer and those reasons tend to “stigmatize” the individual [see Matter of Brathwaite, 70 AD2d 810].

*** Although 4 NYCRR 5.3(b) applies only to these entities, many local civil service commissions have adopted a similar rule.

The Hughes decision is posted on the Internet at: http://law.justia.com/cases/california/court-of-appeal/2016/e060294.html

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Click here to Read a FREE excerpt from The Discipline Book concerning the due process rights of public employees in New York State.

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