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 January 2, 2018

Click on text highlighted in color to access the full report

Employee PIP’d, then RIF’d, after ending consensual affair advances quid pro quo harassment claim

Incentive portions of EEOC wellness regs vacated but effective date delayed until 2019

Suit challenges Facebook, employers using features that may hide job opportunities from older workers

Union's duty of fair representation

Union's duty of fair representation

Okpo v City of New York, 2017 NY Slip Op 09272, Appellate Division, First Department

In the words of the Appellate Division, "[t]he nature and purpose of the duty of fair representation — representation in collective bargaining grievances — thus does not support expansion of the duty to cover article 78 proceedings."*

Pauline Okpo, a probationary employee, was terminated from her position and filed a grievance objecting to her dismissal. The union declined to challenging Okpo's dismissal and Okpo initiated an Article 78 in Supreme Court. Supreme Court granted the union's motion for summary judgment and dismissed Okpo's complaint.

The Appellate Division unanimously affirmed the Supreme Court's ruling, explaining:

1. As a probationary employee, Okpo's termination was not the basis for a "grievance" under the controlling collective bargaining agreement [CBA]. Accordingly, the employee organization had no duty of fair representation with respect to Okpo's challenging her termination during her probationary period:

2. Assuming that the employee organization did, in fact, owed Okpo a duty of fair representation, it would nonetheless have had no duty to initiate a CPLR Article 78 proceeding on her behalf challenging her termination while serving as a probationary employee as "[t]he duty of fair representation is rooted in the bargaining agent's exclusive statutory authority to pursue grievances on behalf of covered employees under the CBA"; and

3. The nature and purpose of the duty of fair representation — representation in collective bargaining grievances and such a duty does not support expansion of the duty to cover Article 78 proceedings.

In contrast, the Appellate Division pointed out that as a probationary employee, however, Okpo could have challenged her termination herself in an Article 78 proceeding (see e.g. Matter of Castro v Schriro, 140 AD3d 644, affd29NY3d 1005).

* Typically litigation arising involving collective bargaining grievances would be prosecuted pursuant to Article 75 of the Civil Practice Law and Rules.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_09272.htm

New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations during the week ending December 29, 2017

New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations during the week ending December 29, 2017

Click on text highlighted in color to access the full report

On December 28, 2017, New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations had been issued:

City University of New York: Lehman College, Controls Over Bank Accounts (2017-F-18) (Follow-Up)

An initial audit issued in April 2016 found two accounts that were not on CUNY Central’s list that Lehman opened prior to the implementation of its 2008 banking policy. In addition, of 72 payments from five judgmentally selected bank accounts, 25 totaling $114,554 were either improper or were unsupported. Auditors also found that a non-tax levy account contained tax levy dollars that Lehman should have turned over to the state. In a follow-up, auditors found Lehman officials had made progress in addressing the issues identified in the initial report.

State Education Department (SED): Birch Family Services Inc.: Compliance with the Reimbursable Cost Manual (2016-S-74)

Birch is a New York City-based not-for-profit organization authorized by SED to provide preschool special education services to children with disabilities who are between the ages of 3 and 5 years. For the two fiscal years ended June 30, 2013, auditors identified $1,376,319 in reported costs that did not comply with the RCM’s requirements, including: $605,667 in compensation paid to employees who did not work for Birch’s SED preschool cost-based programs.

Department of Health (DOH): Optimizing Medicaid Drug Rebates (2017-F-9) (Follow-Up)

An initial audit determined DOH had overlooked multiple sources of drug rebate revenue and did not collect an estimated $95.1 million in available rebates during the audit period. In a follow-up, auditors found DOH made progress in addressing the problems identified in the initial audit report; however, further actions are still needed.

Office of Information Technology Services (ITS): Effectiveness of the Information Technology Transformation (2017-F-19) (Follow-Up)

An initial audit report issued in August 2016 covering the period of January 22, 2015 to March 20, 2016, determined there were significant deficiencies in planning the execution of the state’s Information Technology Transformation, with little to no evidence that basic planning steps were performed. In a follow-up, auditors found ITS officials have made progress in correcting the problems identified in the initial report.  Of the four prior audit recommendations, two recommendations have been implemented and two recommendations have been partially implemented.

Office for People with Developmental Disabilities: Lifespire Inc. Compliance with the Consolidated Fiscal Reporting and Claiming Manual for Non-Medicaid Costs (2016-S-2)

Lifespire provides assistance to individuals with mental developmental disabilities. Lifespire operates 118 residences and offers 75 day programs in areas such as habilitation, supported employment, and residential, behavioral, prevocational, mental health, and family support. For the two fiscal years ended June 30, 2015, auditors identified $167,041 in costs claimed for state reimbursement that did not comply with requirements and recommend such costs be disallowed. The ineligible costs consisted of $70,129 in personal service costs and $96,912 in other than personal service costs.

Judicial review of determinations made after a hearing denying a police officer's application for General Municipal Law §207-c disability benefits

Judicial review of determinations made after a hearing denying a police officer's application for General Municipal Law §207-c disability benefits

Campo v City of Mount Vernon, 2017 NY Slip Op 08663, 2017 NY Slip Op 08663

The City of Mount Vernon Commissioner of Police, after a hearing, denied John Campo's application for disability benefits available to injured law enforcement personnel injured in the performance of law enforcement duties pursuant to General Municipal Law §207-c. Campo appealed the Commissioner's determination.

The Appellate Division dismissed Campo's appeal "on the merits, with costs," explaining that judicial review of an administrative determination that is made after a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record.

Here, said the court, the Commissioner's decision was supported by substantial evidence in the record.

Workers' compensation benefits are intended to be dispensed regardless of fault for any injury arising out of and in the course of one's employment. In contrast, in Matter of Diegelman v City of Buffalo, 28 NY3d 231, the Court of Appeals held that General Municipal Law §207-c benefits apply to a narrower class of work-related injury, relative to the performance of law enforcement duties.

To be entitled to General Municipal Law §207-c benefits, a covered municipal employee must prove a direct causal relationship between job duties and the resulting illness or injury and Campo failed to prove that such a relationship existed here. *

When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the administrative agency. Further, credibility determinations as to the testimony of the parties' respective medical witnesses, including their qualifications and the weight to be given their testimony, are matters within the sole province of the administrative fact finder and courts may not weigh the evidence or reject the choice made by the agency where the evidence is conflicting and room for choice exists.

In this action the hearing officer credited the testimony of the City's medical expert as to causation, and there is no basis to disturb that determination.

* Courts typically apply the same guidelines in the course of considering appeals challenging the denial of an application for General Municipal Law §207-a disability benefits submitted by a firefighter.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08663.htm

__________

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

__________

Demanding an employee submit his or her resignation from his or her position

Demanding an employee submit his or her resignation from his or her position

Ortlieb v Lewis County Sheriff's Dept., 2017 NY Slip Op 08115, Appellate Division, Fourth Department

Sheriff's Deputy Daryl Ortlieb commenced a CPLR Article 78 proceeding seeking a court order permitting him to withdraw the resignation he had earlier submitted to  Lewis County Sheriff Michael Carpinelli [Sheriff]  and directing the Sheriff to reinstate him to his former position as a deputy with the Lewis County Sheriff's Department. 

Ortlieb had tendered his resignation to Sheriff during a meeting at which the Sheriff threatened to terminate Ortlieb for alleged misconduct unless he resigned from his position.* Supreme Court concluded that the Sheriff abused his discretion in refusing to allow Ortlieb to withdraw his resignation and granted the relief requested in the petition. The Appellate Division affirmed the Supreme Court's ruling.

The Appellate Division said its review was limited to whether the Sheriff's "determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion." As the decision whether to allow Ortlieb to withdraw his resignation was within the Sheriff's discretion, the court said the issue before it was whether the Sheriff's denial of Ortlieb's request was arbitrary and capricious or an abuse of that discretion.

Citing Matter of Meier v Board of Educ. Lewiston Porter Cent. Sch. Dist., 106 AD3d 1531, the Appellate Division opined that "It is well settled that "[a] resignation under coercion or duress is not a voluntary act and may be nullified." Although a threat to terminate an employee does not constitute duress if the person making the threat has the legal right to terminate the employee, the court said that "such a threat does constitute duress if it is wrongful and precludes the exercise of free will" and "[i]t follows that a resignation obtained under the threat of wrongful termination is involuntary and may be withdrawn upon request, and that it is an abuse of discretion for an officer to deny such a request."

In this instance the Appellate Division characterized Ortlieb's tender of his resignation as having been submitted "under the threat of wrongful termination." Thus, concluded the Appellate Division, the Sheriff abused his discretion in refusing to allow Ortlieb to withdraw the resignation.

The Appellate Division, noting that there is no dispute that Ortlieb was entitled to pretermination notice and hearing pursuant to §75 of the Civil Service Law and that he was not provided with the requisite predisciplinary hearing, ruled that the Sheriff had no lawful right to terminate him.

The Appellate Division's decision stated that the Sheriff threatened to terminate Ortlieb for alleged misconduct unless he resigned from his position [emphasis supplied].

In contrast, in Rychlick v Coughlin, 63 NY2d 643, Rychlick, a corrections officer, in the presence of his union representative, was offered the option of resigning or having formal disciplinary charges filed against him [emphasis supplied].

Permitted to confer with a union official, when Rychlick requested time to consult with an attorney, he was advised that unless he resigned at that moment in time, charges would be filed against him. He resigned. Four days later Rychlick sought to withdraw the resignation, which he claimed had been “forced” from him. 

Although a lower court had found “duress” and ordered Rychlick reinstated with back pay, the Court of Appeals held that the “threat to file formal charges ... does not constitute duress.” The court noted that the appointing authority had the legal right, if not the duty, to press charges under the circumstances and it was not duress to threaten to do what one had the legal right to do.

In Rlychlik the employee was threatened with the "filing of formal [disciplinary] charges if he did not submit his resignation. In Ortlie it appears that the employee was threatened with "termination" -- presumably without the filing of disciplinary charges and the holding of a hearing -- a significant procedural difference.

Note that 4 NYCRR 5.3, in pertinent part, provides "... when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation."

Should the appointing authority elect to "disregard" the individual's resignation and the individual declines to participate in the disciplinary hearing, the appointing authority must conduct the hearing "in absenia" and find the employee guilty and impose the penalty of dismissal in order to record the separation  as a dismissal rather than as a resignation.

Many political subdivision so the State had adopted a similar local law, rule or regulation.

* The decision states that there had been "no predisciplinary hearing pursuant to Civil Service Law §75."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08115.htm