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 November 17, 2017
Click on text highlighted in color to access the full report

Bus driver failed to show severe obesity was disability under the ADA

HR VP fired for ‘racially charged’ Trump tweet still gets unemployment benefits

Despite complaints about quality of internship, student not employee entitled to pay

Justices won’t consider challenge to Illinois collective bargaining law for home care providers

Washington law prohibits retaliation against job applicants by prospective employers

Some challenges to Trump administration’s DACA policy trimmed for lack of standing

Terminated employee sues the employer challenging her dismissal and the union for its alleged breach of its duty of fair representation

Terminated employee sues the employer challenging her dismissal and the union for its alleged breach of its duty of fair representation

Thompson v District Council 37, 2017 NY Slip Op 07964, Appellate Division, First Department

Bobbie Thompson sued District Council 37 [DC-37], her collective bargaining organization after to it informed her that it would not demand arbitration challenging the  termination of her employment. However, because Thompson failed to commence her CPLR Article 78 action against her former employer, the New York City Department of Education (DOE), within the four-month limitations period governing claims filed under Article 78 or the one-year limitations period applicable to other claims against  provided for in Education Law §3813(2-b).

As §3813(2-b) states that "Except as provided in subdivision two of this section and, notwithstanding any other provision of law providing a longer period of time in which to commence an action or special proceeding, no action or special proceeding shall be commenced against any entity specified in subdivision one of this section more than one year after the cause of action arose," the Appellate Division ruled that Thompson's causes of actions were time-barred.

Turning to Thompson's claims against DC-37 for an alleged breach of the unions duty of fair representation, the Appellate Division ruled that her actions was "likewise untimely under the applicable four-month limitations period." The court explained that Thompson's  discrimination claims against DC-37 relating to events alleged to have occurred prior to September 10, 2012are untimely under the governing three-year limitations periods.

Addressing Thompson's "facially timely claim that the union discriminated against her by refusing to arbitrate her termination," the court ruled that Thompson "fails to state a cause of action," noting that Thompson failed to allege any facts which could support an inference of bias.

Thompson's final contentions included constitutional claims and claims under Civil Service Law §75. The court said that those claims were "unpreserved and without merit."

As to Thompson's claims with respect to §75, in Antinore v Stat, 40 NY2d 6, the Court of Appeals ruled that a public employee's collective bargaining agent 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..

Thus if DC-37 was authorized by law to negotiate an alternate disciplinary procedure with Thompson's employer providing equivalent administrative due process, in this instance apparently §75 of the Civil Service Law, on behalf of employees in the relevant negotiating unit, an employee in that negotiating unit would no longer be entitled to claim the "notice and hearing" mandated by §75 of the Civil Service Law with respect to disciplinary action taken against the individual by his or her employer.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07964.htm

Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law

Kim A. Kirsch filed a petition pursuant to CPLR Article 78 seeking a court order directing the Williamsville Central School District's Board of Education [Board] to comply with her Freedom of Information Law [FOIL] request. Kirsch's FOIL request sought certain email records. 

Among the issues considered by the Appellate Division were: 

1. Standing to submit a FOIL request;  

2. Statute of Limitations;   

3. Adding another party to the action; 

4. Exemptions from disclosure; and 

5. Identification of the records demanded.*

The Appellate Division sustained the Supreme Court's decision in favor or Kirsch. The Board then filed a motion for leave to appeal to the Court of Appeals, which motion was denied by the Appellate Division.

*  NYPPL's summary of the Appellate Division's ruling is posted on the Internet at: https://publicpersonnellaw.blogspot.com/2017/07/exploring-claimed-procedural-obstacles.html.

The Appellate Division's decision denying the Board of Education's motion is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2017/2017_07935.htm].

Issuing a certificate of good faith authorizing the indemnification of expenses incurred by school personnel in defending a proceeding arising from an act or omission of the individual

Issuing a certificate of good faith authorizing the indemnification of expenses incurred by school personnel in defending a proceeding arising from an act or omission of the individual

Decisions of the Commissioner of Education, Decision No. 17,245

A parent filed an application with the Commissioner of Education seeking the removal of the superintendent [Superintendent] of the school district.

The Commissioner ruled that the parent's application must be denied on procedural grounds, whereupon the Superintendent ask the Commissioner to issue a Certificate of Good Faith.

Such a certificate is issued by the Commissioner for the sole purpose of authorizing a school board to indemnify a school district officer, and certain other individuals, for legal fees and expenses incurred in defending a proceeding arising out of the exercise of the individual's power or performance of his or her official duties.*

The Commissioner said that it is appropriate to issue such certification unless it is established on the record that the requesting school district officer acted in bad faith. Here, however, the application filed with the Commissioner has been denied on procedural grounds. Nevertheless, the Commissioner said that as there has been no finding that the Superintendent acted in bad faith with respect to the allegations in the Parent's application, "to the extent such a certificate is necessary, I hereby certify that [the superintendent] is entitled to receive the requested certificate."

Similarly, §17 of the Public Officers Law provides for the defense and indemnification of officers and employees of the State as the employer in such situations while §18 of the Public Officers authorizes a political subdivision of the State, by the adoption of a of local law, by-law, resolution, rule or regulation to provide for the defense and indemnification of its officers and employees.

* §3811.1 of the Education Law provides that the "costs, expenses and damages" incurred by a trustees or board of education, school district officers, and other individuals designed in the statute in defending any action brought against them "shall be a district charge and shall be levied by tax upon the district." Paragraph (c) of §3811.1, in pertinent part, provides that "it shall be certified by the court or by the commissioner of education, as the case may be, that [the individual] appeared to have acted in good faith with respect to the exercise of his [or her] powers or the performance of his [or her] duties under this chapter.

The full text of the decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17245

Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law

Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law
Kirsch v Board of Educ. of Williamsville Cent. Sch. Dist., 2017 NY Slip Op 05547, Appellate Division, Fourth Department

Kim A. Kirsch filed a petition pursuant to CPLR Article 78 seeking a court order directing the Williamsville Central School District's Board of Education [Board] to comply with her Freedom of Information Law [FOIL] request. Kirsch's FOIL request sought certain email records. 

Among the issues considered by the Appellate Division were: 

1. Standing to submit a FOIL request;  

2. Statute of Limitations;   

3. Adding another party to the action; 

4. Exemptions from disclosure; and 

5. Identification of the records demanded.*

The Appellate Division sustained the Supreme Court's decision in favor or Kirsch. The Board then filed a motion for leave to appeal to the Court of Appeals, which motion was denied by the Appellate Division.

*  NYPPL's summary of the Appellate Division's ruling is posted on the Internet at: https://publicpersonnellaw.blogspot.com/2017/07/exploring-claimed-procedural-obstacles.html.

The Appellate Division's decision denying the Board of Education's motion is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2017/2017_07935.htm].