Opportunity to Better Understand NYS Paid Family Leave Law

Opportunity to Better Understand NYS Paid Family Leave Law 
Source: NY Muni Blog

New York State is set to enact the strongest paid family leave program in the country.  The program, New York’s Paid Family Leave Law (“PFL”), takes effect January 1, 2018, and will provide New Yorkers job-protected, paid leave to care for a loved one who is seriously ill, bond with a new child, or help the family when a member is deployed for military service. Nearly every private employee in New York will be eligible to receive benefits—and there are many implications for business owners. 

Harris Beach Labor and Employment Law Attorney Ibrahim Tariq will present on employers’ most frequently asked Paid Family Leave questions and best practices for businesses day-to-day PFL administration. Mr. Tariq has been in contact with staff counsel at the Workers’ Compensation Board this fall over numerous PFL questions. He will share and provide input on the latest highlights that New York employers need to know to comply with the Department of Labor’s PFL requirements. PFL is one of three labor and employment topics at the seminar, including updates on the Affordable Care Act, and the latest updates from the National Labor Relations Board. 

To sign up for the Harris Beach Labor and Employment 2017 Seminar Series: Session 4 Thursday, November 16, 2017 8am-10am Harris Beach PLLC 99 Garnesy Road, Pittsford, NY 14534, 

Please register here or contact rsvp@harrisbeach.com 

Counseling memorandum issued to an employee

Counseling memorandum issued to an employee

Decisions of the Commissioner of Education, Decision No. 17,236

The genesis of this appeal to the Commissioner of Education was the placement of a counseling memorandum in the educator's [Petitioner] personnel file. 

The seminal decision concerning placing a "counseling memorandum" in an educator's personnel file is Holt  v Board of Education, Webutuck Central School District, 52 NY2d 625. In Holt the Court of Appeals held that, although a disciplinary reprimand may not be issued to a teacher without a finding of misconduct pursuant to Education Law §3020-a, critical administrative evaluations need not be afforded such procedural protections.* 

In reviewing the letters placed in the teacher's file in Holt, the court found that the purpose of the communications was to call to the teacher's attention a relatively minor breach of school policy and to encourage compliance with that policy in the future.  The court held that critical written evaluations do not rise to the level of disciplinary reprimands when the purpose of such evaluations is to warn or instruct, but not to punish.

Turning to the merits of the instant appeal, the Commissioner observed that supervisory personnel of a school district have the right and the duty to make such evaluations as an adjunct to their responsibility to supervise the faculty of the school district, citing Holt.

Although the Commissioner found that the language "in the assistant superintendent’s letter is critical," the record supported a finding that the purpose of the memorandum was to call Petitioner’s "attention to breaches of school policy and encourage compliance with such policies in the future." Accordingly, the Commissioner ruled that the assistant superintendent permissibly issued the counseling memorandum without resort to the procedural protections of Education Law §3020-a."

Petitioner also alleged that "the counseling letter is internally inconsistent in that it indicates that its purpose was 'to warn [Petitioner] of the serious consequences of any future incident, and to instruct [him] ...' but also states that it does not rule out formal disciplinary action for this incident." 

The Commissioner acknowledged Petitioner's concerns but explained that the counseling memorandum "correctly recognizes that, so long as 'a timely charge of misconduct is made and the procedural requirements of section 3020-a of the Education Law have been fulfilled,' a school district may make 'formal disciplinary use' of counseling memoranda such as the memorandum at issue in this appeal."

On this point, in Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470, the court held that an individual's personnel record may be considered in determining the disciplinary penalty to be recommended or imposed in the event the individual is found guilty of one or more disciplinary charges, provided the individual is advised of the personnel records that will be so considered and he or she is given an opportunity to rebut the content of those personnel records that will considered for that purpose.

* See, also, Matter of Fusco, Comm. of Ed. Decision 14,396 and Matter of Irving, Comm. of Ed. Decision 14,373 for a NYPPL summary of decisions of the Commissioner of Education concerning constructive criticism as distinguished from disciplinary action. The URL is https://publicpersonnellaw.blogspot.com/2011/01/constructive-criticism-or-discipline.html

The decision is posted on the Internet at:

 http://www.counsel.nysed.gov/Decisions/volume57/d17236

Employee Scheduling Regulations proposed by the New York State Department of Labor

Employee Scheduling Regulations proposed by the New York State Department of Labor

Source: New York State Department of Labor

The Department of Labor has filed proposed rules addressing  what is commonly called as "just-in-time," "call-in" or "on-call" scheduling.

The text of the proposed regulation is posted on the Internet at:

https://labor.ny.gov/workerprotection/laborstandards/pdfs/employee-scheduling-proposed-rule.pdf

The full rulemaking package will appear in the November 22, 2017 issue of the State Register, and will be subject to a comment period for 45 days from that publication date. You may submit a comment on this proposed regulation by sending an email addressed to hearing@labor.ny.gov.

The Department of Labor developed these regulations after conducting four hearings and receiving testimony. Information concerning these hearings is posted on the Internet at:

https://labor.ny.gov/workerprotection/laborstandards/oncallscheduling.shtm

A school employee who elected to submit an issue for resolution through a contractual grievance procedure may not appeal the same issue to the Commissioner of Education pursuant to Education Law §310

A school employee who elected to submit an issue for resolution through a contractual grievance procedure may not appeal the same issue to the Commissioner of Education  pursuant to Education Law §310

Decisions of the Commissioner of Education, Decision No. 17,235

In this appeal to the Commissioner of Education, the petitioner [Petitioner] contended that certain actions taken by school district administrators [District] and the president of employee organization [Association] of a recognized or certified employee organization  for the purposes of collective bargaining under Article 14 of the Civil Service Law, the Taylor Law, were contrary to the terms of the relevant collective bargaining agreement [CBA] between the Association and the District.

The Association sought dismissal of the allegations filed against the Association on the ground that unions and their representatives are not subject to the jurisdiction of the Commissioner in an appeal filed pursuant to Education Law §310.

The Commissioner agreed, holding that the Petitioner's appeal against the Association must be dismissed for "lack of jurisdiction." The Commissioner explained that "It is well-settled that union organizations and their representatives are not subject to the jurisdiction of the Commissioner of Education under Education Law §310," and dismissed Petitioner's claims against the Association.

With respect to Petitioner's claims against the District, the Commissioner ruled that this branch of Petitioner's appeal must be dismissed for two reasons: lack of jurisdiction and election of remedies. 

The Commissioner explained that "It is well-settled that a school employee who elected to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner pursuant to Education Law §310 for review of the same matter."*

In the alternative, the Commissioner observed that Petitioner’s contract claims also would be dismissed under the doctrine of election of remedies as a prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner of Education.

* In Antinore v State, 40 NY2d 6, the court said that a union could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure so long as the alternate procedure provided constitutional due process protections equivalent to those available under the statutory procedure that it replaced where the law permitted the negotiation of such an alternative disciplinary procedure.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17235

Where an administrative interpretation of a law or rule has a rational basis the court will affirm the ruling even if it would have interpreted the provision differently

Where an administrative interpretation of a law or rule has a rational basis the court will affirm the ruling even if it would have interpreted the provision differently

Matter of United Fedn. of Teachers v City of New York, 2017 NY Slip Op 07324, Appellate Division, First Department

Supreme Court denied the United Federation of Teachers, Local 2, AFT, AFL-CIO [UFT] Article 78 petitions seeking, among other things, the annulment of the determination of the New York City Board of Collective Bargaining [Board] that UFT had breached its duty of fair representation it owed to its member, Jose Morales. The court directed UFT and the City of New York to process Morales's grievance "pursuant to the contractual grievance process without accepting any defense based on the untimeliness of the appeal."*

The City and UFT appealed the Supreme Court's ruling.

Finding that the Board's determination is not arbitrary and capricious, inconsistent with lawful procedures, or an abuse of discretion, the Appellate Division affirmed the lower court's ruling and dismissed the City's and UFT's appeals. The Appellate Division said that UFT was not deprived of an opportunity to establish an excuse for its conduct, because it was obligated to set forth a statement of facts and legal arguments in its answer to Morales's second improper practice petition, and UFT had the right to submit evidence in support of that answer.

Addressing UFT's contention that it was not required to pursue the appeal under a provision of the collective bargaining agreement, the Board noted that "If the grievant is not satisfied with the determination of the agency head or designated representative the grievant or the Union [sic] may appeal to the Commissioner of Labor Relations in writing within ten (10) workdays of the determination."

In Matter of Uniformed Firefighters Assn. of Greater N.Y. v City of New York, 114 AD3d 510, leave to appeal denied, 23 NY3d 904, the court held that "if the [Board's] determination has a rational basis, we must affirm, even if this Court would have interpreted the provision differently."

Significantly, the Appellate Division observed that the Board interpreted the provision's language emphasized above permits UFT "to decline to pursue a grievance in the first place, but [did] not to excuse a union from exercising diligence in appealing from an adverse Step II determination once the union has begun to represent an employee." The Appellate Division said it "must defer to this reasonable interpretation" by the Board.

* The Appellate Division noted the absence of any apparent excuse for UFT's failure to file the appeal for more than four months after the expiration of the contractual 10-business-day deadline to file an appeal from a Step II determination.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2017/2017_07324.htm