Employment Law News postings

Employment Law News postings

Source: WK WorkDay

[Internet links highlighted in color]

Summaries of court decisions concerning:

Religion at the workplace: Sabbath observance; dreadlocks; other considerations

http://www.employmentlawdaily.com/index.php/2016/08/16/religion-at-work-dreadlocks-sabbath-and-other-tidbits-you-should-know/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WK+WorkDay%29

Police officer’s reporting superior’s alleged official misconduct to the Federal Bureau of Investigation

http://www.employmentlawdaily.com/index.php/news/officer-spoke-as-private-citizen-when-reporting-official-misconduct-to-fbi/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WK+WorkDay%29

Supervisor’s threat to shoot employee who complained about harassment constituted retaliation within the meaning of Title VII

http://www.employmentlawdaily.com/index.php/news/supervisor-if-i-had-a-gun-i-would-shoot-her-comment-supports-retaliation-claim/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WK+WorkDay%29

Determining if an employee is a joint employee of two or more employers for the purposes of State and City human rights laws

Determining if an employee is a joint employee of two or more employers for the purposes of State and City human rights laws
Brankov v Hazzard, 2016 NY Slip Op 05778, Appellate Division, First Department

The decision of the Appellate Division in Brankov, which involved an employment in the private sector, concerned whether “an ostensible non-employer is actually a "joint employer" for purposes of employment discrimination claims under the State and City Human Rights Laws (HRL).” Thus the ruling may be instructive in determining the employer-employee relationship for the purposes of HRLs in situations where a public officer or employee, alleging unlawful discrimination, initiates an administrative or judicial complaint under state, local and, or federal laws claimng two or more public sector employers are liable for the alleged acts of unlawful discrimination.

Although the majority of employments in the public service involve the appointment of an individual to a position under the jurisdiction of a single appointing authority, there are a number of other types of employments that may be made depending of the circumstances, the most common being a “dual employment” and a “joint employment.”*

Dual employments typically involves a single individual serving in two different positions, each under the jurisdiction of different appointing authorities and generally require the knowledge and approval of the appointing authorities involved.**

In contrast, a joint employment is effected when two [or more] appointing authorities jointly authorize the employment of an individual in a single position and the two [or more] appointing authorities typically share the personnel service costs involved.

Other types of employments in the public service include, but are not limited to:  

1. A “special employee” in the service of two or more employers pursuant to a shared services agreement,

2. A “shared employment” in which two or more individuals are employed part-time by a single appointing authority and “share” a single position and

3. An “extra service employee” where an individual, typically working full time for one appointing authority, is simultaneously employed by the same or another appointing authority in a different position with the approval of the appointing authority or both appointing authorities, as the case may be.

The Appellate Division described Dragica Branko’s employee status as follows:

“In this action "Company A" hired Brankov, paid her salary and bonuses, controlled where she was assigned to work, and placed her at "Company B" and later transferred her to other locations. A "Company A" employee supervised Branko on a day-to-day basis. "Company B" had no say in the end of Branko's employment with "Company A" years after she had been transferred to another location. The record plainly indicates that "Company A", and not "Company B," ultimately controlled Branko's employment.”

Explaining that Federal District Courts have typically applied the "immediate control" test in determining the appropriate “defendant-employer” in such situations, the Appellate Division said that under the "immediate control" formulation, a "joint employer relationship may be found to exist where there is sufficient evidence that the defendant had immediate control over the other company's employees," and particularly the defendant's control "over the employee in setting the terms and conditions of the employee's work."

"Relevant factors" in this analysis "include commonality of hiring, firing, discipline, pay, insurance, records, and supervision." Of these factors, "the extent of the employer's right to control the means and manner of the worker's performance is the most important factor."

In Brankov, the Appellate Division held that “[v]iewed in the light most favorable to [Brankov], the record fails to demonstrate that ["Company B"] had the requisite "immediate control" over the terms and conditions of her employment to be subject to liability under the New York State and New York City Human Rights Law as a "joint employer."

Accordingly, said the court, Supreme Court correctly held that "Company B" was not Brankov’s joint employer, and correctly dismissed her claims against "Company B" and Hazzard as those claims rested on her theory of joint employment.

* These designations involve the "nature of the individual's performance of duties obligations" rather than the “nature of a public officer’s or employee’s status" in the position such as a permanent, temporary, contingent permanent, full-time, part-time, seasonal, trainee, per diem or substitute appointee or as an individual elected to a position in the public service. An independent contractor serving with a State, a political subdivision of the State, a public authority or other governmental entity is not a “public employee."  

** Another consideration with respect to dual employments concerns the appearance of, if not an actual, a conflict of interest involved in a particular “dual employment” situation? As the Attorney General advised in an informal opinion: In the absence of a constitutional or statutory prohibition against dual-office holding, one person may hold two offices simultaneously unless they are incompatible [Informal Opinions of the Attorney General 98-17].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05778.htm

Determining if an employee is a joint employee of two or more employers for the purposes of State and City human rights laws

Determining if an employee is a joint employee of two or more employers for the purposes of State and City human rights laws
Brankov v Hazzard, 2016 NY Slip Op 05778, Appellate Division, First Department

The decision of the Appellate Division in Brankov, which involved an employment in the private sector, concerned whether “an ostensible non-employer is actually a "joint employer" for purposes of employment discrimination claims under the State and City Human Rights Laws (HRL).” Thus the ruling may be instructive in determining the employer-employee relationship for the purposes of HRLs in situations where a public officer or employee, alleging unlawful discrimination, initiates an administrative or judicial complaint under state, local and, or federal laws claimng two or more public sector employers are liable for the alleged acts of unlawful discrimination.

Although the majority of employments in the public service involve the appointment of an individual to a position under the jurisdiction of a single appointing authority, there are a number of other types of employments that may be made depending of the circumstances, the most common being a “dual employment” and a “joint employment.”*

Dual employments typically involves a single individual serving in two different positions, each under the jurisdiction of different appointing authorities and generally require the knowledge and approval of the appointing authorities involved.**

In contrast, a joint employment is effected when two [or more] appointing authorities jointly authorize the employment of an individual in a single position and the two [or more] appointing authorities typically share the personnel service costs involved.

Other types of employments in the public service include, but are not limited to:  

1. A “special employee” in the service of two or more employers pursuant to a shared services agreement,

2. A “shared employment” in which two or more individuals are employed part-time by a single appointing authority and “share” a single position and

3. An “extra service employee” where an individual, typically working full time for one appointing authority, is simultaneously employed by the same or another appointing authority in a different position with the approval of the appointing authority or both appointing authorities, as the case may be.

The Appellate Division described Dragica Branko’s employee status as follows:

“In this action "Company A" hired Brankov, paid her salary and bonuses, controlled where she was assigned to work, and placed her at "Company B" and later transferred her to other locations. A "Company A" employee supervised Branko on a day-to-day basis. "Company B" had no say in the end of Branko's employment with "Company A" years after she had been transferred to another location. The record plainly indicates that "Company A", and not "Company B," ultimately controlled Branko's employment.”

Explaining that Federal District Courts have typically applied the "immediate control" test in determining the appropriate “defendant-employer” in such situations, the Appellate Division said that under the "immediate control" formulation, a "joint employer relationship may be found to exist where there is sufficient evidence that the defendant had immediate control over the other company's employees," and particularly the defendant's control "over the employee in setting the terms and conditions of the employee's work."

"Relevant factors" in this analysis "include commonality of hiring, firing, discipline, pay, insurance, records, and supervision." Of these factors, "the extent of the employer's right to control the means and manner of the worker's performance is the most important factor."

In Brankov, the Appellate Division held that “[v]iewed in the light most favorable to [Brankov], the record fails to demonstrate that ["Company B"] had the requisite "immediate control" over the terms and conditions of her employment to be subject to liability under the New York State and New York City Human Rights Law as a "joint employer."

Accordingly, said the court, Supreme Court correctly held that "Company B" was not Brankov’s joint employer, and correctly dismissed her claims against "Company B" and Hazzard as those claims rested on her theory of joint employment.

* These designations involve the "nature of the individual's performance of duties obligations" rather than the “nature of a public officer’s or employee’s status" in the position such as a permanent, temporary, contingent permanent, full-time, part-time, seasonal, trainee, per diem or substitute appointee or as an individual elected to a position in the public service. An independent contractor serving with a State, a political subdivision of the State, a public authority or other governmental entity is not a “public employee."  

** Another consideration with respect to dual employments concerns the appearance of, if not an actual, a conflict of interest involved in a particular “dual employment” situation? As the Attorney General advised in an informal opinion: In the absence of a constitutional or statutory prohibition against dual-office holding, one person may hold two offices simultaneously unless they are incompatible [Informal Opinions of the Attorney General 98-17].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05778.htm

Collective bargaining under the Taylor Law: submitting demands characterized as new or regressive after post-impasse fact-finding

Collective bargaining under the Taylor Law: submitting demands characterized as new or regressive after post-impasse fact-finding

Buffalo Teachers Federation v Buffalo City School District, PERB U-34445

Buffalo City School District v Buffalo Teachers Federation, PERB U-34462

On July 21, 2015, The Buffalo Teachers Federation [BTF] filed an improper practice charge with the New York Public Employment Relations Board [PERB]. BTF alleged that the Buffalo City School District [CSD] had engaged in “bad faith bargaining” by offering “expanded, new and regressive” contract proposals after a fact finder’s report had been issued in violation of §209-a.1(d) of Civil Service Law Article 14, the Taylor Law [the Act].

Six days later CSD filed improper practice charges with PERB alleging that BTF had violated §209-a.2(b) of the Act by demanding that the school district reimburse BTF’s unit members for lost wages for the period 2004-2007 that resulted from the wage freeze imposed by the Buffalo Fiscal Stabilization Authority.*

PERB’s Administrative Law Judge M. Lynn Fitzgerald, addressing the issue of bargaining in good faith, opined that the charges alleged by the parties stem “at least in part, from both parties’ frustration over [their] inability to reach a mutually acceptable agreement over an 11 year period.”

Judge Fitzgerald then noted that where the parties are at impasse, §209.3 of the Act provides impasse resolution procedures permitting PERB to provide mediation assistance. Where such assistance is unproductive, PERB may appoint a fact-finder and should fact-finding fail to resolve the impasse situation, §209.3(f) of the Act, in pertinent part, provides:

“where the public employer is a school district … (i) the board may afford the parties an opportunity to explain their positions with respect to the report of the fact-finding board at a meeting at which the legislative body, or a duly authorized committee thereof, may be present; (ii) thereafter, the legislative body may take such action as is necessary and appropriate to reach an agreement. The board may provide such assistance as may be appropriate.”

In June 2015 CSD offered its new contract proposals which included salary increases but excluded any retroactive adjustment; an increase in employee health insurance contributions from 10% to 20%; an increase in the work-year from 186 work-days to 190 work-days; and an extension of the current 6 hour 50 minute work-day to a 7 hours 40 minute work-day; together with proposals in 8 subject areas concerning terms and conditions of employment that had not been previously included in the course of collective bargaining since negotiations commenced in 2004.

The ALJ noted that contract proposals not previously advanced have been permitted in situations where there has been a substantial change in one party’s bargaining position as the result of a “material change in circumstances” such as:

1. Legislative changes that affect a party’s statutory rights or obligations after the parties reached impasse; or

2. The issuance of an arbitration award during the course of collective bargaining; or

3. The publication of an improper practice decision by PERB where the decision had a financial impact on the employer, or  

4. A decision by the Court of Appeals that constitutes a change in circumstances that would justify a party’s introduction of new proposals.

In contrast, Judge Fitzgerald explained that contract proposals not previously advanced were not permitted where the justification for such proposals were based on:

1. A party’s “lead negotiator” being changed or replaced; or

2. The election or appointment of new or different members to the school board [or, presumably, an employee organization’s elected officers]; or

3. The appointment of a new school superintendent [or, presumably, an employee organization’s chief executive officer].

The ALJ also commented that the mere passage of time does not serve to permit the introduction of regressive proposals and the introduction of new matters. Were it otherwise, said Judge Fitzgerald, “would allow parties to continually change their proposals and add new subjects in direct opposition to the duty to narrow issues with an eye to bringing negotiations to a close.

Judge Fitzgerald concluded that although CSD “may have a legitimate interest in negotiating certain new benefits and work rule changes, it is not permissible to add those new matters to the issues which are pending at this stage of the negotiations for a successor to the expired 2004 agreement.” However, said the AJL, those proposals would be properly submitted in the next round of negotiations or in “separate negotiations specific to those issues.”

The bottom line, Judge Fitzgerald found that the District’s introduction of new subjects into post fact-finding negotiations, alone, was improper but, additionally, the reduction in the value of the District’s financial offer in its 2015 offer was “regressive and therefore improper.”

* The decision, the genesis of which was the expiration of the last negotiated collective bargaining agreement between the parties on June 30, 2004, sets out the history of the events leading to the filing of these charges, the arguments presented by the parties in support of their respective positions and the relevant litigation that transpired concerning the underlying issues during this period. For a PDF copy of this 46-page decision, e-mail your request to Publications@nycap.rr.com with the word Regressive in the subject line.

Pokemon Go: It’s Here And Law Enforcement Needs To Be Aware Of It

Pokemon Go: It’s Here And Law Enforcement Needs To Be Aware Of It

Source: Sui Generis, a LawBlog

 

Nicole Black, a Rochester, New York attorney, has posted an item on her LawBlog “Sui Generis” captioned Pokemon Go: It’s Here And Law Enforcement Needs To Be Aware Of It.

It is posted on the Internet at: http://nylawblog.typepad.com/suigeneris/2016/07/pokemon-go-its-here-and-law-enforcement-needs-to-be-aware-of-it.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SuiGeneris--aNewYorkLawBlog+%28Sui+Generis--a+New+York+law+blog%29