Maintaining "an attachment to the labor market" for the purposes of eligibility for workers’ compensation benefits

Maintaining "an attachment to the labor market" for the purposes of eligibility for workers’ compensation benefits

Cruz v Buffalo Bd. of Educ., 2016 NY Slip Op 03034, Appellate Division, Third Department

The New York State Workers’ Compensation Board requires that a claimant for benefits have “an attachment to the labor market” if he or she is seeking to receive partial disability benefits when he or she cannot perform the normal duties of his or her position but is able to perform other types of work.*

Such a claimant can maintain “an attachment to the labor market” by [1] making a diligent search for employment that he or she can perform notwithstanding the disability, [2] being employed in a position that is within his or her medical limitations such as working part-time or performing “light-duty” work or [3] self-employment. The entity paying the benefits may require the claimant to maintain appropriate records to demonstrate his or her “attachment to the labor market.”

The claim for workers’ compensation benefits filed by Edelmiro Cruz illustrates the application of the attachment to the labor market requirement.

Cruz, an assistant principal at a Buffalo City School District elementary school, suffered work-related injuries in May 2011 and was awarded workers' compensation benefits until he returned to work in August 2011. Cruz was terminated in February 2012 and subsequently applied for additional causally related lost earnings. The Buffalo City School District, a self-insured employer and its third-party administrator [Buffalo] controverted Cruz’s claim and raised the issue of his attachment to the labor market.Buffalo also alleged Cruz had made misrepresentations regarding his search for work.

A Workers' Compensation Law Judge denied benefits, finding that, due to a lack of a sufficient effort to find work, Cruz had voluntarily removed himself from the labor market. In addition, the Law Judge found that Cruz had made misrepresentations concerning his search for work and thus had violated Workers' Compensation Law §114-a. Cruz was disqualified from receiving further benefits.**

The Workers' Compensation Board, however, concluded that Buffalo had not submitted sufficient evidence to prove that Cruz had violated §114-a. Further, while the Board affirmed the Law Judge's determination that Cruz had voluntarily removed himself from the labor market following his termination, the Board also found that Cruz “had reattached to the labor market in February 2013.”

The Board restored the case to the calendar to address the issue of Cruz's reduced earnings subsequent to February 2013 and Buffalo appealed.

The Appellate Division affirmed the Board’s action explaining that "A claimant must demonstrate attachment to the labor market with evidence of a search for employment consistent with his or her medical restrictions" and the Board's determination as to whether a claimant has demonstrated an attachment to the labor market will be sustained if supported by substantial evidence.

In this instance medical evidence in the record indicated that Cruz, as a result of his injuries, could only sit or stand for no more than two hours a day and he could not lift more than 20 pounds. In addition Cruz had testified that [1] he began using the services of the Office of Vocational and Educational Services for Individuals with Disabilities [VESID] in January 2013; [2] he had obtained a part-time job at an auto parts store in February 2013, (and was working five hours a week at the time of his testimony); [3] he was training for a management position that offered more hours, and the store was willing to accommodate his "restrictions;" and [4] he was still searching for other work with a VESID job counselor.

Based upon the foregoing, said the court, the Board's decision that claimant had reattached to the labor market as of February 2013 is supported by substantial evidence.

Addressing Buffalo’s contention that Cruz made “a material misrepresentation in violation of Workers' Compensation Law §114-a,” the Appellate Division again said that the Board's determination with respect to this issue will not be disturbed if supported by substantial evidence.

Buffalo had relied on the report and testimony of a vocation counselor. The counselor testified that she had contacted 34 companies by telephone with which Cruz reported that he had filed an application for employment between February 2012 and February 2013. Although the counselor confirmed that two of the companies had received an application from Cruz, she also testified that 17 companies either did not respond or could not verify whether or not they had received an application and the counselor conceded that Cruz could have applied for employment with them.

Further, the Board noted that the counselor did not report the name of the individuals she had spoken with and concluded that, although Cruz had not presented sufficient evidence to establish that he had remained attached to the labor market during the period in question, there was a lack of credible evidence that he had knowingly made a false statement or misrepresented a material fact in order to obtain benefits.

As "the Board is vested with the discretion to evaluate witness credibility and to weigh conflicting evidence," the Appellate Division ruled that Board's decision that Buffalo had not met it burden of proof with respect to its allegation that Cruz’s violated §114-a of the Workers' Compensation Law was supported by substantial evidence.

* A claimant for workers’ compensation benefits temporarily totally disabled is deemed unable to perform any work and is not required to maintain “an attachment to that labor market” while so temporarily totally disabled. An individual found permanently totally disabled is not required to maintain an attachment to the labor market in any event.

** Workers' Compensation Law §114-a provides for the disqualification of an individual for worker’s compensation benefits in the event he or she has made a false statement or representation in applying for such benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03034.htm

Failing to seek a court order staying an arbitration precludes the objecting party from subsequently contending that there was no valid agreement to arbitrate

Failing to seek a court order staying an arbitration precludes the objecting party from subsequently contending that there was no valid agreement to arbitrate

Ruiz v County of Rockland, 2016 NY Slip Op 02999, Appellate Division, Second Department

Carlos Ruiz was terminated from his position with the County of Rockland. Ruiz, through his employee organization, demanded that the matter of his termination be submitted to arbitration under color of terms set out in collective bargaining agreement (CBA) between the County and United Federation of Police Officers, Inc., Local 613, [Union], of which Ruiz was a member. 

Rockland did not apply for a court order staying the arbitration although it sent letters to Ruiz, the Union and the assigned arbitrator indicating that “it refused to participate in an arbitration proceeding.”  Following the County's refusal, Ruiz and the Union [Petitioners] commenced an Article 75 proceeding to compel the County to arbitrate Ruiz's termination grievance in accordance with the terms of the CBA. The Supreme Court granted the petition and the County appealed the court’s ruling.

The Appellate Division sustained the Supreme Court’s decision explaining that the County's “failure to apply to stay arbitration precludes it from now contending that the CBA does not constitute a valid agreement to arbitrate” the issue, rejecting the County’s argument that the disciplinary procedure outlined in the CBA does not entitle Ruiz to grieve his termination through arbitration. The issue of whether Ruiz's termination was a type of disciplinary action subject to arbitration under the CBA “is a matter of contract interpretation and application to be resolved by the arbitrator.”

Why it is necessary for a party to go to court to seek a stay of arbitration? If the partly refuses to participate in the arbitration and does not have the authority of the court in the form of a “stay of arbitration,” temporary or otherwise, the arbitration can proceed “in absentia” of the objecting party.

For example, in Hall v Environmental Conservation, 235 AD2d 757, the Appellate Division ruled that an arbitrator [1] may proceed with a disciplinary arbitration notwithstanding the fact that the appointing authority refused to participate in the proceeding and [2] thereafter make a final, binding determination.  

The employer had boycotted the arbitration because, it contended, Hall was not entitled submit the matter to arbitration. The court upheld the arbitrator’s award in favor of the employee.

The same result obtains when a party refuses or fails to participate in an administrative proceedings. The decision of the Appellate Division, Third Department in Aures v Buffalo Board of Education, 272 A.D.2d 664, demonstrates this.

In Aures, the employer, the Buffalo City School District, failed to appear at an unem­ployment insurance hearing as scheduled. The hearing officer proceeded to hold the hearing "in absentia" and awarded unemployment insurance benefits to Aures. Rejecting Buffalo's appeal challenging the award of benefits, the Appellate Division ruled that the administrative determination was binding on the parties.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02999.htm

Reports recently issued by the Office of the State Comptroller

Reports recently issued by the Office of the State Comptroller

Click on text highlighted in color to access the entire report

Recent reports issued by the Office of the State Comptroller

Click on text highlighted in color to access the entire report

Special Education
The Unadilla Valley Central School District saved more than $300,000 in special education costs over a two-year period, according to an auditissued by New York State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/apr16/041916.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20160424&utm_campaign=fiscal+oversight

School Audits issued

Campbell-Savona Central School District - Liquidating the accumulated deficit in the District’s general fund

Gilboa-Conesville Central School District – Internal controls to safeguard portable devices such as laptop computers, tablets and cameras

Hicksville Union Free School District – Purchasing

Highland Falls-Fort Montgomery Central School District - Financial Condition

Madrid-Waddington Central School District - Financial Condition

Yorkshire-Pioneer Central School District - Financial Management

A probationary employee employee may not be terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law

A probationary employee employee may not be terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law

Johnson v County of Orange, 2016 NY Slip Op 02821, Appellate Division, Second Department

Supreme Court granted the Orange County Sheriff’s motion to dismiss Janine Johnson's Article 78 petition challenging her termination from her position while she was still serving her probationary period “for failure to state a cause of action.” Johnson had filed a “notice of appeal” that the Appellate Division deemed to be an application for leave to appeal, granted the “application” and then affirmed the Supreme Court’s ruling with costs.

The Appellate Division explained that a probationary employee “may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law." 

In addition, it should be noted that Rules promulgated by a civil service commission may set out administrative procedures and standards that control the termination of a probationary employee.* For example, in Scherbyn v Wayne-Finger Lakes BOCES, 77 NY2d 753, the Court of Appeals held that where the rules of a civil service commission specifically set out the reasons for which a probationary employee may be dismissed, the appointing authority's broad discretion with respect to terminating the services of probationers is subject to the limitations imposed by those standards. 

Further, as the court held in Yan Ping Xu v New York City Dept. of Health and Mental Hygiene, 121 AD3d 559,  a  department policy does not trump the probationary period established by law or by a rule or regulations having the force and effect of law. 

Another element to consider in the context of terminating a probationary employee is the "probationary status" of the individual. Case law indicates that a probationary employee may be terminated at any time after the completing his or her minimum period of probation prior to completing his or her maximum period of probation [see Gray v Bronx Developmental Center, 65 NY2d 904] unless otherwise provided by a collective bargaining agreement negotiated pursuant to the Taylor Law [Civil Service Law Article 14]. 

In contrast, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to termination on the theory that the individual is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position [see McKee v. Jackson, 152 AD2d 54]. 

In Johnson's case the Appellate Division found that the allegations in her petition were insufficient to state a cause of action that her employment was terminated “in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law.”

The Appellate Division also held that:

1. Johnson’s claims that the Orange County Sheriff's Office tolerated other relationships such as the one in which she was involved and did not have a formal anti-fraternization policy were inadequate to state a cause of action alleging that she was terminated in bad faith; and

2. Johnson was not entitled to a statement of the reason for the termination of her probationary employment, citing York v McGuire, 63 NY2d 760.

Accordingly, said the court, Supreme Court properly granted the appointing authority’s motion to dismiss Johnson’s petition.

* See, for example, 4 NYCRR 4.5(b) of the Rules of the State Civil Service Commission. Many local civil service commissions have adopted similar rules. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02821.htm

Lack of prior misconduct not sufficient to mitigate imposing the penalty of dismissal given the fraudulent nature of the individual’s misconduct

Lack of prior misconduct not sufficient to mitigate imposing the penalty of dismissal given the fraudulent nature of the individual’s misconduct

Ronga v New York City Dept. of Educ., 2016 NY Slip Op 02921, Appellate Division, First Department

In an earlier decision, Ronga v New York City Department of Education, 114 AD3d 527, the Appellate Division sustained the findings of the Disciplinary Hearing Officer that Ronga, a probationary principal at a New York City public school, [1] improperly directed subordinates to create fabricated teacher observation reports and professional development plans for which he himself was personally responsible, and [2] submitted those reports and plans to the superintendent.  

That court, however, had dismissed certain other charges and specifications filed against Ronga on due process grounds, vacated the penalty of termination imposed by the Hearing Officer, and then remanded the matter to the Hearing Officer for consideration of the appropriate penalty to be imposed based on the surviving charges and specifications.

The Hearing Officer, in accordance with the Appellate Division’s directive, reconsidered the penalty to be imposed and reimposed the penalty of termination. Again Ronga appealed but this time the Appellate Division affirmed the penalty the Hearing Officer had determined – dismissal from the position.

The Appellate Division explained that “[d]espite [Ronga’s] long-standing work history and lack of prior misconduct, given the fraudulent nature of his misconduct, the fact that he coerced subordinates into being complicit in his malfeasance, and the fact that his misconduct deprived teachers of important observations and evaluations, the penalty of termination does not shock [its] sense of fairness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02921.htm

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Challenging Adverse Personnel Decisions - A 752-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://nypplarchives.blogspot.com/

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