Selected reports posted in Employment Law News by WK Workday

Selected reports posted in Employment Law News by WK Workday 
Source: Wolters Kulwer

Selected reports posted by WK Workday during the week ending September, 22, 2017

Click on text highlighted in color to access the full report 

Kraft retirees had no vested right to health care benefits beyond termination of CBAs

Posted: 21 Sep 2017 12:09 PM PDT

By Ron Miller

In a number of recent court decisions, it has consistently been determined that collective bargaining agreements do not provide a source for lifetime medical benefits for retirees and their surviving spouses and beneficiaries if there is not explicit contractual language stating that such benefits survive expiration of the agreement. However, in a recent decision, Gruss v. Kraft Heinz Foods Co., Inc., Kraft retirees sought to establish that the company violated ERISA when it terminated retiree health care benefits for former hourly workers.

Changing job criteria in middle of hiring process supports pretext inference in nonselection claim

Posted: 21 Sep 2017 06:36 AM PDT

By Kathleen Kapusta, J.D.

Evidence that an employer changed the criteria for a position midway through the hiring process, relied on subjective justifications for selecting white candidates over an African-American applicant, and provided a shifting explanation for the selection decision supported an inference of pretext sufficient to deny summary judgment against the applicant’s Title VII race discrimination claim, a federal court in the District of Columbia ruled. His retaliation claim, which was based on an anonymous complaint he made four years earlier about what he viewed as a racist video, failed however (Casselle v. Chao, September 15, 2017, Boasberg, J.).

Abusive treatment of subordinates, not employee’s PTSD, was cause of firing

Posted: 20 Sep 2017 07:03 AM PDT

By Kathleen Kapusta, J.D.

An employee fired shortly after telling his supervisor he had PTSD could not establish pretext for disability discrimination by pointing to, among other things, his recent positive performance evaluations or a relatively minor misstatement in the employer’s EEOC position statement. Nor did the fact that the decisionmakers questioned the veracity of his PTSD claim show that the stated reason for discharging him—creating a hostile and intimidating work environment for his subordinates—was pretextual, the Seventh Circuit ruled, affirming summary judgment against his ADA and Rehab Act claims (Monroe v. Indiana Department of Transportation, September 18, 2017, Williams, A.).

5-minute pre-shift ‘briefing’ of 911 dispatcher compensable, not de minimis

Posted: 20 Sep 2017 06:58 AM PDT

By Joy P. Waltemath, J.D.

Reversing summary judgment to a county employer on only one of several FLSA claims for unpaid pre- and post-shift work, the Tenth Circuit found that a 911 dispatcher presented sufficient evidence for a jury to find that the county had to compensate her for the undisputedly integral and indispensable activity of being briefed by the outgoing dispatcher, which according to written policy, she was required to be at work five minutes before her shift began to receive. In an unpublished two-judge decision (now-Justice Neil Gorsuch had been on the panel for oral argument, but the remaining two panel judges were in agreement and so could act as a quorum to resolve the appeal), the court found this pre-shift activity was both ascertainable—five minutes per shift, per policy—and a “fixed or regular working time,” and a “practically ascertainable period of time [s]he is regularly required to spend on duties” so that it could not be disregarded as de minimis (Jimenez v. Board of County Commissioners of Hidalgo County, September14, 2017, per curiam).

City manager fired while she was on leave—behind her back—not because she was on leave

Posted: 19 Sep 2017 07:11 AM PDT

By Joy P. Waltemath, J.D.

Even assuming that a city manager had notified the city council that she was going on FMLA leave when she told them she was having foot surgery and would be able to work from home while recovering, her employer could fire her without unlawfully interfering with the FMLA as long as the reason for her termination was not because she was on leave. This it did, said the Sixth Circuit in affirming summary judgment for the city, because the employer demonstrated a legitimate reason for terminating her—it cited her role in “causing political strife in the community.” Moreover, it was questionable that she had provided FMLA notice since there was evidence she refused to take and complete the city’s FMLA forms, and it was suggested that she was only going to take a few days off and work from home. She also had no evidence of pretext (Mullendore v. City of Belding, released August 23, 2017, redesignated as published September 15, 2017, Batchelder, A.).

A public employee's misconduct while "off-duty" may result in disciplinary action being initiated against the employee by his or her appointing authority

A public employee's misconduct while "off-duty" may result in disciplinary action being initiated against the employee by his or her appointing authority 
Office of Administrative Trials and Hearings [OATH], Index No.1229/17

An appointing authority may bring disciplinary charges pursuant to §75 of the Civil Service Law for alleged off-duty misconduct or its statutory or contractual equivalent "where there is a sufficient nexus between the misconduct and the employing agency."* 

In this disciplinary action, OATH Administrative Law Judge Ingrid M. Addison found:

1. The employee, a peace officer, attempted to have forcible sexual intercourse, a criminal act inherently contrary to the law enforcement responsibilities of peace officers, and had pled guilty to Assault in the Third Degree, a Class A misdemeanor.

2. The appointing authority established a nexus between the employee’s off-duty misconduct and his job as "a law enforcement officer whose criminal conviction runs contra to his [or her] law enforcement duties. "

3. The disciplinary charges filed against the employee by the appointing authority were  appropriate for his proven off-duty misconduct.

Judge Addison said that "this tribunal has generally applied the principles of progressive discipline, which aims to achieve employee behavior modification through increasing penalties for repeated or similar misconduct."

Noting that the employee had not previously been served with disciplinary charges, the ALJ explained that even absent a history of prior discipline, peace officers who engage in violent off-duty misconduct with or without a resulting criminal conviction may be terminated. In addition Judge Addison observed that "for off-duty misconduct, we have imposed penalties which have been commensurate with the level of misconduct and have included termination."

Accordingly, Judge Addison recommended that the employee be terminated from his employment having been found guilty of off-duty misconduct in attempting to engage in forcible sexual intercourse with his former girlfriend and causing her physical injury while doing so.***

* See, for example, Zazycki v City of Albany, 94 A.D.2d 925, Motion for leave to appeal denied, 60 N.Y.2d 558 

** The employee was sentenced to a one-year conditional discharge, and a five-year Order of Protection was issued against him. 

*** The appointing authority adopted the recommendation of the ALJ and terminated the employee from his position and the appointing authority's determination is appended to the text of the ALJ's findings and recommendation.

The decision is posted on the Internet at: 
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1229.pdf

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A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/7401.html

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Procedures to be followed by school boards seeking to contract for expert consultant services

Procedures to be followed by school boards seeking to contract for expert consultant services

Decisions of the Commissioner of Education, Decision No. 17,188

Among the several issues certain residents and taxpayers of the district [Applicants] raised in an appeal to the Commissioner of Education were challenges to the board’s adoption of a resolution provided for contracting with a consultant, Barbara J. Smith, on the recommendation of the district’s audit committee to serve as its external auditor to assist the district in coming into compliance with applicable State requirements by implementing proper budgetary development and monitoring procedures.* 

The Applicants contended that:

[1] The audit committee violated Education Law §2116-c by recommending the hiring of a consultant;

[2] Certain members of the school board had acted in violation of Education Law §1613 in soliciting and engaging a consultant without seeking competitive bids;

[3] The vote of certain board members approving a resolution to “suspend the District policy that requires the Superintendent’s recommendation for the [school board] to hire a consultant” justifies their removal from office and

[4] The school board's hiring of the consultant encroached upon the exclusive authority of the superintendent, in violation of Education Law §1711.

Addressing the contract issue raised in this appeal concerning the board's not seeking "competitive bid" for the consulting services required, the Commissioner observed that the board sought to obtain the professional skills and knowledge of a consultant**to provide training, assistance, and mentoring to the district’s business official relating to the budget development, fiscal monitoring, and reporting. 

As the contract to retain the consultant to provided such types of professional services, the Commissioner said that it was not subject to "the sealed competitive bidding requirements of General Municipal Law §103." Consequently, the Commissioner explained, entering into a contract for professional services without competitive bidding does not violate Education Law §1619. As "professional services contracts" are outside the scope of competitive bidding, the Commissioner said that they "need not be awarded to the lowest bidder provided that the award is in the best interest of the taxpayers."

The Commissioner noted that General Municipal Law §104-b requires a board to adopt policies and procedures to govern the procurement of goods and services not subject to competitive bidding and further such procedures must contain, among other things, a requirement that proposals “be secured by use of written requests for proposals, written quotations, verbal quotations, or any other method of procurement which furthers the purposes of the section.” In this instance Board Policy 6741 set out the process for securing professional services, including the preparation of a request for proposals [REP].

Turning to the Applicants' complaint that certain board members had violated Policy 6741 as the basis for their removal from office, the Commissioner said that "it is well settled that, even if proven, violation of a board’s bylaws or policies, by itself, is not a sufficient basis for removal of a member of a board of education in a proceeding pursuant to Education Law §306."

In contrast, the Commissioner noted that "a violation of board policy may be used as evidence of willfulness of such conduct" and school district officers can only be removed under §306 when they engage in a "willful violation or neglect of duty," i.e.,"a purpose or intent to disregard a lawful duty or to violate a legal requirement" while "[m]ere negligence on the part of a school officer is not enough to warrant removal."

In this instance the Commissioner found that the acts about which Applicants complain "do not rise to the level of willful misconduct and, thus, on the record before me, [Applicants] have failed to demonstrate that [the board members named by Applicants] engaged in a willful violation or neglect of duty.” 

While noting that the board may not have processed the employment of the Consultant as may have been otherwise required by its policies, the Commissioner found that the process followed by the board in this regard "substantially furthered the purpose of General Municipal Law §104-b."

Finally, the Commissioner concluded that no evidence in the record supported a finding that the board members Applicants sought to have removed from office willfully violated the law or neglected their duty, the standard that must be met for removing a board member from office.

The Commissioner concluded her decision with the following statement: "Although I am constrained to deny this application for removal and dismiss this appeal, I admonish respondent board to fully comply with the procedures established in all applicable board policies in the future."

* Applicants had sought "interim relief ... to restrain the board from enforcing the resolution passed by the board to hire the Consultant, which request was denied by the Commissioner.

** The consultant selected by the board was a former audit manager with an accounting firm and former Chief Financial and Operating Officer for the City School District of the City of Buffalo,

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17188

Determining the amount of the General Municipal Law §207-a (2) supplement payable to a firefighter upon his or her retirement for disability because of a work related injury or disease

 
Determining the amount of the General Municipal Law §207-a (2) supplement payable to a firefighter upon his or her retirement for disability because of  a work related injury or disease
Fennelly v Eastchester Fire Dist., 2017 NY Slip Op 06533, Appellate Division, Second Department

General Municipal Law §207-a(1), in pertinent part, provides that a paid firefighter of an organized fire company or fire department of a city of less than one million population, or town, village or fire district, "who is injured in the performance of his duties or who is taken sick as a result of the performance of his duties so as to necessitate medical or other lawful remedial treatment, shall be paid by the municipality or fire district by which he is employed the full amount of his regular salary or wages until his disability arising therefrom has ceased." In effect, the firefighter is placed on sick leave at full pay until he or she returns to full duty or "light duty" with his or her employer, retires, dies, is found ineligible to continue to receive such compensation or retires.

General Municipal Law §207-a (2) provides, in pertinent part, for discontinuing the payment of the full amount of regular salary or wages with respect to any firefighter continued on the payroll pursuant §207-a(1) who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his or her duties "in the event the firefighter is granted an accidental disability retirement allowance pursuant to section three hundred sixty-three of the retirement and social security law, a retirement for disability incurred in performance of duty allowance pursuant to section three hundred sixty-three-c of the retirement and social security law or similar accidental disability pension provided by the pension fund of which he is a member...."

§207-a(2), however, then mandates that the firefighter so retired "shall continue to receive from the municipality or fire district by which he [or she] is employed, until such time as he [or she] shall have attained the mandatory service retirement age applicable to him [or her] or shall have attained the age or performed the period of service specified by applicable law for the termination of his [or her] service, the difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages."*

In this CPLR Article 78 action the Appellate Division was asked to review a determination by the Board of Fire Commissioners of the Eastchester Fire District [Eastchester] that reflected the findings and recommendations "of a hearing officer, made after a hearing," that the petitioner, Keith E. Fennelly, Eastchester's retired former fire chief, "was not entitled to supplemental wage increases pursuant to General Municipal Law §207-a(2) and that Eastchester was entitled to recoup 'overpayments' made to [Fennelly] since 2005."

The court held that [1] Fennelly was not entitled to the supplemental wage increases, i.e. payments reflecting "the difference between the amount received under such allowance or pension and the amount of his [or her] regular salary or wages"* but [2] Eastchester was not  entitled to recoup any "overpayments" it made to Fennelly since 2005. The court "otherwise dismissed" Fennelly's petition "on the merits."

The court explained that Eastchester's determination that Fennelly was not entitled to increases in the supplemental benefits he was paid pursuant to General Municipal Law §207-a(2) based upon the salary increases given to Eastchester's current fire chief was supported by substantial evidence. The evidence, said the court, "demonstrated that the salary paid to each fire chief is determined by the Board, and is based on the particular experience, education, and performance of the fire chief, as opposed to firefighters who receive salary increases pursuant to a collective bargaining agreement."

As to Eastchester recouping "past overpayments" from Fennelly, the Appellate Division, citing Matter of Masullo v City of Mount Vernon, 141 AD3d 95, said that "[t]here is no evidence that [Eastchester] had a process or application procedure in place at the time [Fennelly] was paid the section 207-a(2) benefits and, therefore, there can be no finding that the prior payments were improper so as to justify recoupment."

Note: NYPPL, after reviewing this decision, is of the opinion that although Fennelly may not be entitled to increases in the supplemental benefit  pursuant to General Municipal Law §207-a(2) in the amount of "the salary increases given to [Eastchester's] current fire chief," to the extent Fennelly's does not receive adjustments in the nature of a supplement to his retirement allowance or pension consistent with the reasons**and procedures described below, Eastchester is not in compliance with the mandates set out in §207-a(2) with respect to the payment of the "difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages:"

1. In Pease v Colucci, 59 A.D.2d 233, the court said that "Section 207-a of the General Municipal Law is a remedial statute enacted for the benefit of [firefighters] and should be liberally construed in their favor."

2. §207-a(1) provides that a firefighter suffering an injury or disease in the line of duty is to remain on the employer's payroll and receive "his [or her] compensation as long as he [or she] has not recovered from his [or her] injury," even if he or she remains unable to return to duty, in whole or in part, as a result of such injury or disease for the rest of his or her life. Such compensation must include any subsequent raises in salary given to those in the same grade or title held by the injured firefighter at the time of his or her injury.

3. In the event the firefighter retires, or is retired pursuant to an application filed on his or her behalf  by his or her employer as authorized by §207-a(2) and, as a result, is removed from the employer's payroll, §207-a(2) mandates that the retired firefighter's employer pay him or her the difference between the amount he or she receives as a retirement allowance or pension and the amount of his or her regular salary or wages he or she would have received had he or she remained on the employer's payroll and not retired. Such payments by the employer,  periodically adjusted to reflect any increases in salary or compensation paid to those in the same grade or title held by the injured firefighter at the time of his or her injury, are to be paid to the retired firefighter until he or she has attained the controlling mandatory age of retirement, dies or is found to be ineligible to receive his or her retirement allowance or pension.

In consideration of points [1], [2] and [3] above, and in view of Fennelly's particular situation with respect to the determination of the annual salary to be paid a fire chief upon his or her initial appointment by Eastchester following Fennelly's retirement for disability:

     [a] The amount of Fennelly's §207-a(2) mandated supplement to be paid by Eastchester initially should be determined based on the difference between his retirement allowance or pension and his annual salary immediately prior to the effective date of his retirement and any subsequent §207-a(2) payments reflecting the difference between the amounts received under such allowance or pension and the amount of his regular salary or wages should be determined so as to increase Eastchester's payments to supplement Fennelly's retirement allowance or pension that would provide

     [b] an equivalent to the percentage increase of any subsequent increase or increases in the annual salary paid to a successor incumbent fire chief following his or her initial appointment to the position based on Eastchester's representation that each such successor's annual salary at the time of his or her initial appointment "is based on the particular experience, education and performance of the appointee;" and

     [c] such supplement and adjustments to such supplements are to be paid by Eastchester to Fennelly until Fennelly attains the "mandatory age of retirement" set by the relevant provision of the Retirement and Social Security Law or his retirement allowance or pension ceases to be paid to him, whichever event first occurs.

* General Municipal Law §207-c(2), which applies to law enforcement personnel, tracks the provisions of §207-a(2) except that it does not provide for the employer's supplementing the individual's retirement allowance or pension in an amount equal to the "difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages."

** There are additional reasons and case law supporting NYPPL's views in this regard that have not been included in this "Note".

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_06533.htm

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Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html

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New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 23, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 23, 2017 
Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

Audit of State Agencies Recommends Better Tracking of Food Purchases from Local Farmers
The Department of Agriculture and Markets and the Office of General Services are now directing all state agencies to submit better reporting of their purchases of New York produced foods according to an auditby State Comptroller Thomas P. DiNapoli found numerous problems. 

 Former Treasurer Arrested in Village of Millport Theft
Former Village of Millport Treasurer Dawn Haverley was arrested for felony grand larceny after an investigation and audit found she allegedly stole more than $4,000 in public funds.


New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the 

Town of Carlisle – Fund Balance (Schoharie County)
The board has not developed a fund balance policy or comprehensive long-term financial and capital plans specifying the town"s objectives and goals for using accumulated funds. General fund balance totaled $623,000 at the end of 2016, more than 950 percent of the tax levy and approximately three times actual expenditures that year. 

Keeseville Volunteer Fire Department – Financial Operations (Clinton County)
Department officials did not deposit or account for all donations received or deposit money received from fundraisers and lounge sales. Deposits totaling approximately $158,300 were not supported by adequate documentation. Department officials did not approve 499 disbursements totaling $63,010 before payment was made. 

City of Niagara Falls – Financial Condition (Niagara County)
The city did not maintain a multiyear financial plan and has continued to rely on unreliable revenues and one-time funding sources. From fiscal years 2014 through 2017, city officials balanced the budget using primarily casino revenue, averaging $9 million, and fund balance, averaging $2.9 million. By the end of 2017, auditors project that the city will deplete available fund balance. Assuming no additional casino revenue is received, the city will have a projected general fund budget gap of $12 million for 2019.

Village of Sagaponack – Claims Processing (Suffolk County)
The board did not perform an effective claims audit or establish an adequate process to ensure that transactions were properly authorized and approved, complied with statutory or village requirements or that claims were for proper village purposes. As a result, the board does not have adequate assurance that goods and services are purchased at the best price.