Determining if a communication sent to the employee constitutes a "letter of reasonable assurance of continued employment" within the meaning of Labor Law §590[10] and [11]

Determining if a communication sent to the employee constitutes a "letter of reasonable assurance of continued employment" within the meaning of Labor Law §590[10] and [11]

Matter of Enman (New York City Dept. of Educ. -- Commissioner of Labor), 2018 NY Slip Op 03416, Appellate Division, Third Department

Labor Law §590(11), which is analogous to Labor Law §590(10) dealing with teachers and other educational professionals, bars nonprofessionals who are employed by educational institutions from receiving unemployment insurance benefits during the time between two academic periods if they have received a reasonable assurance of continued employment. In Matter of Murphy [Copake-Taconic Cent. School Dist.-Commissioner of Labor], 17 AD3d 762, and in other cases addressing this issue, the courts have stated that "A reasonable assurance . . . has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period."

The New York City Department of Education challenged the Unemployment Insurance Appeal Board's determination that Shaniqua Enman, who worked as a per diem substitute paraprofessional for the New York City Department of Education, had not received a letter of reasonable assurance within the meaning of Labor Law §590(11) between two academic periods.  

Ms. Enman worked at schools within the New York City School District and was registered to receive assignments through the SubCentral Registry, an automated system for filling vacancies. During the 2015-2016 school year, Ms. Enman worked 161 days of the 179 days that were in the school year. She received 153 of her assignments directly from administrators at the schools where she worked and the remaining eight assignments through the SubCentral Registry.  

In June 2016, NYCDOE sent Ms. Enman a communication, which it contended constituted "a letter of reasonable assurance," indicating that for the 2016-2017 school year  it anticipated the same amount of work for her as a per diem substitute paraprofessional as in the previous year on substantially the same economic terms and conditions.

Notwithstanding this letter, Ms. Enman filed a claim for unemployment insurance benefits and the Department of Labor found her entitled to receive such benefits. This  determination was later upheld by an Administrative Law Judge following a hearing.

On appeal, the NYCDOE objected to Ms. Enman's receipt of unemployment insurance benefits on the ground that it had provided her with a letter of reasonable assurance pursuant to Labor Law §590(11). The Unemployment Insurance Appeal Board overruled NYCDOE's objection and sustained the Administrative Law Judge's decision. NYCDOE appealed the Board's ruling.

The Appellate Division disagreed with the Board's decision, noting that the Board had initially found that the June 2016 letter sent by the NYCDOE to Ms. Enman constituted a reasonable assurance of continued employment for the 2016-2017 school year. But, said the court, instead of ending the inquiry at that point, the Board "went on to ascertain whether the reasonable assurance was bona fide in light of the testimony presented at the hearing."

The Board ultimately found that the testimony of the NYCDOE's witness was not competent with respect to assignments that Ms. Enman obtained through means other than the SubCentral Registry and declined to count such assignments in projecting those that would be made available to her during the 2016-2017 school year. Rather, it decided that Ms. Enman would have to be offered 145 assignments during the 2016-2017 school year in order to meet the 90% threshold, and considering that she had obtained most of her previous assignments through direct contact with school administrators, the Board concluded that the evidence was insufficient to establish that the NYCDOE provided Ms. Enman with a reasonable assurance of continued employment.*

The Appellate Division ruled, based on its review of the record, the Board's decision was not supported by substantial evidence. The court explained that, in reaching its conclusion, the Board essentially imposed a requirement that a reasonable assurance be a guarantee of earnings during the following school year, an interpretation that finds no support in the statute or case law.

Further, said the court, "the Board erroneously failed to include in its projection the assignments that [Ms. Enman] obtained directly from school administrators during the 2015-2016 school year, as these assignments were reflected in the SubCentral Registry after [she had] accepted them."

The decision indicates that the SubCentral Registry identified paraprofessionals who were working as well those who were not, a critical factor in ascertaining those paraprofessionals who were available and would be likely to accept future assignments. In the words of the Appellate Division, "As long as a paraprofessional was registered in the SubCentral Registry, as was claimant, his or her assignments and/or availability were monitored" and "the 153 assignments that [Ms. Enman] obtained directly through school administrators during the 2015-2016 school year exceeded the 145 needed to satisfy the 90% threshold and should have been counted in determining whether she received a reasonable assurance of continued employment."

The court also noted that the NYCDOE's witness testified that no changes were anticipated with respect to the budget, salary or number of students and paraprofessionals needed for the upcoming school year and further stated that 14% of jobs go unfilled, providing ample opportunity for substitutes to find openings.

In view of the foregoing, opined the Appellate Division, the record establishes that the NYCDOE provided Ms. Enman with a reasonable assurance of continued employment within the meaning of Labor Law §590(11), thereby precluding her from receiving Unemployment Insurance Law benefits.

* The Appellate Division commented that "The Board appears to have erroneously referenced the 2015-2016 school year in its decision."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03416.htm

Best practices for state and local government disaster recovery planning to protect its electronic data

Best practices for state and local government disaster recovery planning to protect its electronic data

Governing is offering this complimentary webinar addressing computer and data security.  The webinar, to be held on May 24, 2018 at 2 p.m. ET and at 11 a.m. PT, will address: 

> How government agencies can meet growing employee and citizen expectations for access to online services while ensuring data is well-protected.

> How to maintain control, visibility and access to data.

> How to confirm strong data recovery capabilities are in place should the unexpected occur.

> How the city of Sarasota, FL, fought back after a virus encrypted 160,000 files and cyber criminals demanded $33 million in Bitcoin as ransom.

Register on line at https://cms.erepublic.com/common/resources?appCore=/common/forms/ajax_form/100106&product_id=100106

Questions? Contact Brittany Roberts at Governing, (800) 940.6039 ext. 1388 or e-mail Ms. Roberts at: broberts@governing.com
 

Employee penalized 60-day suspension without pay after striking a patient and failing to report the incident

Employee penalized 60-day suspension without pay after striking a patient and failing to report the incident

OATH Index No. 584/1

A New York City Emergency Medical Technician [EMT] twice struck a handcuffed, emotionally disturbed patient after the patient had spat at her. The EMT also failed to report the incident to a supervisor as required.

OATH Administrative Law Judge Kevin F. Casey found that the EMT was provoked but ruled that such provocation did not excuse the EMT's action.

Although the ALJ credited EMT’s testimony that she did not intend to injure the patient and found the act to be an aberration, Judge Casey concluded that "A very substantial penalty short of termination, resulting in loss of pay for two months, would give appropriate weight to the mitigating circumstance, but would also make clear to [the EMT], her colleagues, and the public that striking an emotionally disturbed patient and failing to report it are unacceptable." 

The ALJ recommended the imposition of a sixty-day suspension without pay with credit for pre-hearing suspension time served as the EMT's penalty.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-584.pdf

The statutory rights of employees of the State and political subdivisions of the State absent from work as the result of a work-related injury or disease

The statutory rights of employees of the State and political subdivisions of the State absent from work as the result of a work-related injury or disease
Singleton v New York State Off. of Children & Family Servs., 2018 NY Slip Op 03411, Appellate Division, Third Department

The employee in this action, Charles Singleton, was injured on the job and was placed on leave pursuant to §71 of the Civil Service Law, commonly referred to as "Workers' Compensation Leave."

Essentially Mr. Singleton's employer, the New York State Office of Children and Family Services, OCFS, wrote to him indicating that he had the "right to a leave of absence from [his] position during [his] disability for a period of one cumulative year or sooner if found to be permanently disabled" and that if he did not return to work prior to the expiration of his workers' compensation leave his employment could be terminated as a matter of law."*

This, however, was not a pejorative termination in the nature of "termination for cause" as the individual placed on §71 has significant rights to reinstatement to his or her position, or to a similar position. Indeed, §71 does not use the word "termination" to describe the status of the individual on "Workers' Compensation Leave" upon the expiration of his or her §71 leave but rather refers to his or her status as having be "separated" from service as demonstrated by reference in the law to his or her rights to "Reinstatement after separation for disability."

Clearly the employee may return to work prior to the expiration of his or her leave of absence if medically qualified to perform the duties of his or her position.

If the employee does not return to work prior to the expiration of his or her §71 leave of absence, he or she may be separated from service but becomes eligible for reinstatement to his or her former position, or a similar position if his or former position is not available, upon his or her making [1] a timely request to return to duty and [2] being certified as being medically qualified to perform the duties of the position.

In the words of §71, "Such employee may, within one year after the termination of such disability,** make application to the [NYS] civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission."

In the event the individual is found medically qualified to return to work and no suitable position is available, §71 further provides that "If no appropriate vacancy shall exist to which reinstatement may be made, or if the work load does not warrant the filling of such vacancy, the name of such person shall be placed upon a preferred list for his or her former position, and he or she shall be eligible for reinstatement from such preferred list for a period of four years."

* Mr. Singleton had contended that he had sustained injuries from an assault-related injury at work which entitled him to a two-year leave pursuant to §71. OCFS notified petitioner that he had been placed on workers' compensation leave and that his injuries had been classified as a "non-assault injury," and thus was only entitled to a one-year leave of absence pursuant to §71.

** N.B. It is the date of  termination of  the individual's disability, in contrast the effective date of  the individual's "separation" upon the expiration of his or her "Workers' Compensation Leave," that triggers the running of the one-year statute of limitation for the purpose of the individual applying for reinstatement to his or her former, or a similar, employment. If the individual is determined not to be qualified to return to work, he or she continues as "separated" and may apply for reinstatement and a medical re-examination at some  future date.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03411.htm

Determining if a communication sent to the employee constitutes a "letter of reasonable assurance of continued employment" within the meaning of Labor Law §590[10] and [11]

Determining if a communication sent to the employee constitutes a "letter of reasonable assurance of continued employment" within the meaning of Labor Law §590[10] and [11]

Matter of Enman (New York City Dept. of Educ. -- Commissioner of Labor), 2018 NY Slip Op 03416, Appellate Division, Third Department

Labor Law §590(11), which is analogous to Labor Law §590(10) dealing with teachers and other educational professionals, bars nonprofessionals who are employed by educational institutions from receiving unemployment insurance benefits during the time between two academic periods if they have received a reasonable assurance of continued employment. In Matter of Murphy [Copake-Taconic Cent. School Dist.-Commissioner of Labor], 17 AD3d 762, and in other cases addressing this issue, the courts have stated that "A reasonable assurance . . . has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period."

The New York City Department of Education challenged the Unemployment Insurance Appeal Board's determination that Shaniqua Enman, who worked as a per diem substitute paraprofessional for the New York City Department of Education, had not received a letter of reasonable assurance within the meaning of Labor Law §590(11) between two academic periods.  

Ms. Enman worked at schools within the New York City School District and was registered to receive assignments through the SubCentral Registry, an automated system for filling vacancies. During the 2015-2016 school year, Ms. Enman worked 161 days of the 179 days that were in the school year. She received 153 of her assignments directly from administrators at the schools where she worked and the remaining eight assignments through the SubCentral Registry.  

In June 2016, NYCDOE sent Ms. Enman a communication, which it contended constituted "a letter of reasonable assurance," indicating that for the 2016-2017 school year  it anticipated the same amount of work for her as a per diem substitute paraprofessional as in the previous year on substantially the same economic terms and conditions.

Notwithstanding this letter, Ms. Enman filed a claim for unemployment insurance benefits and the Department of Labor found her entitled to receive such benefits. This  determination was later upheld by an Administrative Law Judge following a hearing.

On appeal, the NYCDOE objected to Ms. Enman's receipt of unemployment insurance benefits on the ground that it had provided her with a letter of reasonable assurance pursuant to Labor Law §590(11). The Unemployment Insurance Appeal Board overruled NYCDOE's objection and sustained the Administrative Law Judge's decision. NYCDOE appealed the Board's ruling.

The Appellate Division disagreed with the Board's decision, noting that the Board had initially found that the June 2016 letter sent by the NYCDOE to Ms. Enman constituted a reasonable assurance of continued employment for the 2016-2017 school year. But, said the court, instead of ending the inquiry at that point, the Board "went on to ascertain whether the reasonable assurance was bona fide in light of the testimony presented at the hearing."

The Board ultimately found that the testimony of the NYCDOE's witness was not competent with respect to assignments that Ms. Enman obtained through means other than the SubCentral Registry and declined to count such assignments in projecting those that would be made available to her during the 2016-2017 school year. Rather, it decided that Ms. Enman would have to be offered 145 assignments during the 2016-2017 school year in order to meet the 90% threshold, and considering that she had obtained most of her previous assignments through direct contact with school administrators, the Board concluded that the evidence was insufficient to establish that the NYCDOE provided Ms. Enman with a reasonable assurance of continued employment.*

The Appellate Division ruled, based on its review of the record, the Board's decision was not supported by substantial evidence. The court explained that, in reaching its conclusion, the Board essentially imposed a requirement that a reasonable assurance be a guarantee of earnings during the following school year, an interpretation that finds no support in the statute or case law.

Further, said the court, "the Board erroneously failed to include in its projection the assignments that [Ms. Enman] obtained directly from school administrators during the 2015-2016 school year, as these assignments were reflected in the SubCentral Registry after [she had] accepted them."

The decision indicates that the SubCentral Registry identified paraprofessionals who were working as well those who were not, a critical factor in ascertaining those paraprofessionals who were available and would be likely to accept future assignments. In the words of the Appellate Division, "As long as a paraprofessional was registered in the SubCentral Registry, as was claimant, his or her assignments and/or availability were monitored" and "the 153 assignments that [Ms. Enman] obtained directly through school administrators during the 2015-2016 school year exceeded the 145 needed to satisfy the 90% threshold and should have been counted in determining whether she received a reasonable assurance of continued employment."

The court also noted that the NYCDOE's witness testified that no changes were anticipated with respect to the budget, salary or number of students and paraprofessionals needed for the upcoming school year and further stated that 14% of jobs go unfilled, providing ample opportunity for substitutes to find openings.

In view of the foregoing, opined the Appellate Division, the record establishes that the NYCDOE provided Ms. Enman with a reasonable assurance of continued employment within the meaning of Labor Law §590(11), thereby precluding her from receiving Unemployment Insurance Law benefits.

* The Appellate Division commented that "The Board appears to have erroneously referenced the 2015-2016 school year in its decision."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03416.htm