Installing Global Positioning System equipment in devices use by employees during work

Installing Global Positioning System equipment in devices use by employees during work

El-Nahal v. Yassky, USCA, 2^nd Circuit, Docket #14-405

A New York City taxi driver, Hassan El-Nahal, sued the New York City Taxi and Limousine Commission (TLC) in federal district court alleging TLC had deprived him of his Fourth Amendment rights barring "unreasonable search" by mandating that all New York City taxicabs install "technology systems" equipped with Global Positioning System (GPS).*

El-Nahal alleged that the installation of such devices having tracking abilities amounted to a property-based search within meaning of United States v. Jones, 132 S. Ct. 945,** and that such a search violated his Fourth Amendment rights.

The district court granted TLC’s motion for summary judgment El-Nahal’s arguments and the Circuit Court of Appeals sustained the lower court’s ruling. The Circuit Court explained that there was no evidence in the record demonstrating that El-Nahal had any property interest in a taxi at the time he alleged “at the time of an alleged trespass or physical intrusion.” Accordingly, said the court, he failed to make a sufficient showing on an essential element of his property-based Fourth Amendment claim.

In Jones the Supreme Court held that police may not use GPS device to track suspects without a court order. The Court said that the government violated the Fourth Amendment, which protects individuals from unreasonable searches, when it affixed a global positioning [GPS] device to Antoine Jones’s car and tracked his movements continuously for a month. Significantly, the Court rejected the argument advanced by the United States that Jones had no “reason­able expectation of privacy.”

New York State’s Court of Appeals ruled that a warrantless installation of a GPS device to track an individual suspected of criminal activity was barred by New York State’s Constitution, citing People v Weaver, 12 NY3d 433.***

The Weaver court noted that Article 1, §12, of New York State’s Constitution, in addition to tracking the language of the Fourth Amendment of the Constitution of the United States, provides: "The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof."

In contrast, in Cunningham v NYS Dept. of Labor, 21 NY3d 515,**** the Court of Appeals, sustaining the decision of the Appellate Division, ruled that using a GPS device to gather evidence of employee misconduct to be used in an administrative disciplinary action was permitted.

The Labor Department, suspecting that one of its employees was submitting false time reports, attached a global positioning system (GPS) device to the employee's personal automobile. The appointing authority had alleged that the employee had reported false information about hours he had worked on many days and that he had submitted false vouchers related to travel with his vehicle.

In its opinion, the Appellate Division said although the GPS evidence gathered in Cunningham’s situation would have likely been excluded from a criminal trial under Weaver, the standard for using or excluding evidence at administrative proceedings is not controlled by criminal law.

Citing McCormick, Evidence §173 [6th ed] [supp], the Appellate Division observed that “most courts do not apply the exclusionary rule to various administrative proceedings including employee disciplinary matters”. The test applied in a search conducted by a public employer investigating work-related misconduct of one of its employees is whether the search was reasonable “under all the circumstances, both as to the inception and scope of the intrusion.”

In Halpin v Klein, 62 AD3d 403,***** the employee was found guilty of administrative disciplinary charges involving absence from work based on records generated by global positioning equipment. Halpin's guilt was established using data from the GPS installed in his Department-issued cell phone.

PERB has also considered the issue the employer installing global positioning equipment in agency vehicles in the context of collective bargaining. 

In Civil Service Employees Association, Inc., Local 1000 and County Of Nassau, U-26816, PERB’s Administrative Law Judge dismissed a charge alleging that the County violated the Taylor Law by unilaterally deciding to utilize global positioning system (GPS) technology.

The ALJ said that PERB has long held that the determination of the type of equipment to be utilized by an employer does not give rise to a bargaining obligation and, accordingly, a balancing of interests test was not appropriate.

Further, the ALJ found that CSEA’s arguments that employees' privacy rights were affected, that the employees had to participate in record keeping, and that there was an interference with off-duty time were either inapplicable or had no factual basis. [See, also, Civil Service Employees Association, Inc., Local 1000, and County of Nassau(Department Of Public Works), U-27544, 6/26/08]

* The EL-NAHAL decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/60b89ba4-0cbf-4fc3-acda-0445d569bca0/10/doc/14-405_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/60b89ba4-0cbf-4fc3-acda-0445d569bca0/10/hilite/

** The Jones decision is posted on the Internet at:

http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

*** The Weaver decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2009/2009_03762.htm

**** The Cunningham decision is posted on the Appellate Division decision is posted on the Internet at http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08529.htmand the Court of Appeals decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04838.htm

***** The Halpin decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03593.htm

From the Law Blogs

From the Law Blogs

The September 2016 AELE posting of case notes and publications notes:

Fire, Police and Corrections Personnel Reporter – current issue reports on cases involving the Fair Labor Standards Act (FLSA), retirement benefits, pregnancy discrimination, race discrimination, religious discrimination and sexual harassment allegations.

View at http://www.aele.org/law/2016all09/FP2016SEP.html

Seminar on Discipline and Internal Investigations for public safety agencies: police, corrections and the fire services scheduled to be held in Las Vegas, Nevada on October 24-26.

More information posted on the Internet at http://www.aele.org/menu-disc.html

AELE Monthly Law Journal articles - Overtime pay entitlement for public safety employees under the Fair Labor Standards Act (FLSA).

View at http://www.aele.org/law/2016-09MLJ201.html

Florida man alleged to have stolen retirement benefit checks issued to deceased brother

Selected reports issued by the Office of the State Comptroller during the week ending September 3, 2016 
Source: Office of the State Comptroller

[Internet links highlighted in color]

Floridaman alleged to have stolen retirement benefit checks issued to deceased brother

N.B. These charges are accusations and the individual is presumed innocent unless and until proven guilty.

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of an indictment charging Robert J. Schusteritsch, 71, of Florida, with the crimes of Grand Larceny in the Second Degree, a class C felony, and Criminal Impersonation in the Second Degree, a class A misdemeanor, in Albany County Court. Schusteritsch is alleged to have stolen over $180,000 in pension benefits issued by the New York State and Local Employees Retirement System to his deceased brother, Martin Petschauer, between July 2008 and September 2015.

http://www.osc.state.ny.us/press/releases/sept16/090116a.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20160904&utm_campaign=fiscal+oversight

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.  Individuals can report allegations of fraud involving public funds by calling the toll-free Fraud Hotline at 1-888-672-4555, by transmitting an e-mail to investigations@osc.state.ny.us, by filing a complaint online athttp://osc.state.ny.us/investigations/complaintform2.htm or by mailing a complaint to Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

Employer contribution rates to remain almost unchanged for Fiscal 2017-2018

Employer contribution rates for the New York State and Local Retirement System expected to be slightly less in Fiscal Year 2017-18 compared to Fiscal Year 2016-17.

The average contribution rate for the Employees' Retirement System (ERS) will decrease from 15.5 percent of payroll to 15.3 percent of payroll. The average contribution rate for the Police and Fire Retirement System (PFRS) will increase to 24.4 percent from 24.3 percent of payroll.

Employer rates are determined based on actuarial assumptions recommended by the Retirement System's Actuary and approved by DiNapoli.

A copy of the Actuary's report can be found here.

Determining eligibility for "prospective surviving spouse pension benefits"

Determining eligibility for "prospective surviving spouse pension benefits"

Tirado v Board of Trustees of N.Y. City Fire Dept. Pension Fund, Subchapter 2, 2016 NY Slip Op 05925, Appellate Division, Second Department

Judicial review of administrative determinations not made after a quasi-judicial hearing is limited to whether the action taken by the administrative agency was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.

In resolving this action, which did not involve the review of a ruling made after a quasi-judicial hearing but which required the consideration of a number of issues such as the vacating of a default judgment of divorce, the benefits due surviving minor children of a deceased member of the New York City Fire Department Pension System, and claims that the application for certain retirement benefits was barred by the statute of limitations and the doctrine of laches, Supreme Court annulled the Board of Trustees of the New York City Fire Department Pension Fund, Subchapter 2’s, [Fund] determination denying Sheneque Jackson Tirado’s [Tirado] surviving spouse pension benefits and directed that the Fund commence paying Tirado such pension benefits effective as of August 20, 2012, together with any interest due. 

The Appellate Division affirmed the Supreme Court’s ruling, holding that the Fund’s denial of Tirado’s application for prospective surviving spouse pension benefits was arbitrary and capricious and an abuse of discretion.

Tirado had been separated from her husband, Hector Tirado, Jr. [Hector], a New York City firefighter who died responding to the terrorist attacks on September 11, 2001. After Tirado applied for pension benefits as Hector’s surviving spouse she learned the Hector had obtained a default judgment of divorce against her on March 21, 2001. In April 2002 Tirado filed a petition seeking to vacate the default divorce judgment.*In April 2003, the Supervisor of Pension Payroll of the Fire Department notified her that, as the surviving minor children's guardian, that pension benefits would be paid to the five minor children through their 18th birthdays.

Ultimately the relevant parties entered into an agreement in a Surrogate's Court proceedings to settle the estate whereby Tirado agreed to give the minor children any pension benefits from the Fire Department she received as Hector's surviving spouse in the same manner as the benefits would be distributed if there were no surviving spouse and when the minor children reached an age that they would no longer be eligible to receive pension benefits, Tirado would retain for her own exclusive use and enjoyment any remaining pension benefits until her death. Surrogate's Court vacated the judgment of divorce and in support of the present petition, Tirado’s then-counsel averred that he “notified a representative of the Fund of the vacatur of the divorce judgment and that he believed that he informed the representative about the agreement to defer [Tirado’s] surviving spouse pension benefits.”

The Fund continued to make the retirement payments to the benefit of the minor children. In August and September 2012, Tirado’s counsel wrote three letters to representatives of the Fire Department, noting that the youngest child would attain the age of 18 on August 20, 2012 and none of the children was a full-time student, requesting that "thereafter, the Fund commence paying surviving spouse pension benefits" to Tirado.

The Deputy Commissioner for Administration of the Fire Department responded that in November 2001, the Fund had determined that there was "no surviving spouse and that the death benefit was therefore payable to the Hector's minor children." Noting that the Find had not participated in the proceeding leading to the “vacatur of the divorce,”** the Deputy Commissioner said that the death benefit was a mutually exclusive benefit paid to either a surviving spouse or to surviving minor children and that all pension benefits had been paid in full to the minor children and did not revert to Tirado.

Addressing the Fund’s contention that Tirado’s petition was barred by the statute of limitations and laches, the Appellate Division said that Supreme Court correctly held that Tirado’s petition was timely and consistent with New York City’s Administrative Code §13-347(c).*** 

The Appellate Division explained that Tirado had timely commenced her action within four months of the October 2, 2012 communication from the Fund and that this letter “was the first and only unambiguously final decision sent to [Tirado] regarding her claim for surviving spouse pension benefits.” The court pointed out that while Tirado had been notified in 2003 that pension benefits would commence being paid to the minor children, that notification did not advise her “of the Fund's current position that, once such payments to the children began, they could never revert back to [Tirado] even if she obtained vacatur of the default divorce judgment, nor did it address [Tirado's] claim at all.”

Addressing the Fund’s argument that Tirado’s application was barred by the doctrine of laches, the Appellate Division said that having notified the Fund of her claim to entitlement to surviving spouse pension benefits, and her agreement to defer payment in favor of the children until they reached majority, Tirado did not unreasonably delay in seeking to protect her interests. In addition, said the court, as Tirado sought only prospective pension benefits and not recovery of payments which had already been made to the children, the Fund failed to show any prejudice resulting from Tirado’s delay in seeking payments after she obtained vacatur of the default divorce judgment in 2005.

* The vacatur of the default divorce judgment made Tirado Hector’s surviving spouse as if the default divorce judgment had never been entered and the Fund was not a necessary party to the proceeding to vacate the default divorce judgment merely because it administers benefits which flow from Tirado's marital status.

** The Appellate Division observed that the Fund was not a necessary party to the proceeding to vacate the default divorce judgment merely because it administers benefits which flow from Tirado’s marital status and construing the effect of the order and decree vacating the default divorce judgment was a question of law for the court to resolve and did not require deference to the Fund's area of expertise.

*** Administrative Code §13-347(c) provides that pension benefits "shall" be granted to the decedent's surviving spouse for life, or, if there be no surviving spouse, to surviving minor children until they attain the age of 18, or the age of 23 if a student.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05925.htm

Exceptions to the general rule that only the union or the employer may demand that an issue be submitted to arbitration

Exceptions to the general rule that only the union or the employer may demand that an issue be submitted to arbitration
Sossous v Herricks Union Free Sch. Dist., 2016 NY Slip Op 05924, Appellate Division, Second Department 

The general rule concerning the right to demand that a grievance be submitted to arbitration in accordance with the terms and conditions of a collective bargaining agreement is that only the union or the employer may make such a demand.

In contrast, a unit member could exercise an independent right to demand arbitration if he or she is able to show that the union’s decision not to submit his or her grievance to arbitration was arbitrary, discriminatory, or made in bad-faith and thus demonstrating a breach of the union's duty of fair representation. 

In the absence of such a showing,  however, a union's "decision to conclude the grievance process short of the final step allowed by the contract or law is binding on the employee and precludes resort to additional remedies”.* 

The Sossous decision by the Appellate Division sets out another exception to the general rule.

The grievant, Final Sossous, filed Article 75 petition seeking to compel arbitration involving the terms of a “settlement agreement” entered into by the Herricks Union Free School District and Herricks Teachers' Association. The School Districtasked the court to dismiss Sossous’ petition, contending that “only the Herricks Teachers' Association, and not [Sossous] individually, may seek arbitration of the issues relating to the settlement agreement.** Supreme Court agreed and dismissed Sossous’ petition.

In this case, however, the argument that only the Herricks Teachers' Association and not Sossous, individually, may seek arbitration of the issues relating to the settlement agreement failed.

The Appellate Division vacated the lower court’s ruling explaining that “under the circumstances of this case, the parties charted their own procedural course by entering into a settlement agreement providing that the arbitrator would retain jurisdiction to resolve ‘any dispute that may arise concerning this settlement agreement.’"

The is consistent with judicial rulings holding that questions concerning compliance with a contractual step-by-step grievance process concern matters of procedural arbitrability are to be resolved by an arbitrator.

In the words of the Appellate Division, Sossous “raises a question of procedural arbitrability that must be resolved by the arbitrator” as the School Districtand the Association agreed that the arbitrator would retain jurisdiction to resolve "any dispute that may arise concerning this settlement agreement."

Accordingly, said the Appellate Division, the Supreme Court should have granted Sossous’ petition to compel arbitration and denied the School District’s cross motion to dismiss the petition.

* New York City Tr. Auth. v Gorrick, 72 AD3d 518.

** Comack Union Free School District v Ambach, 70 NY2d 501.
 

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_05924.htm