Using a whistle blowing defense in a disciplinary action

Using a whistle blowing defense in a disciplinary action

Crossman-Battisti v Traficanti, 235 A.D.2d 566

Under what conditions is it appropriate to raise a claim that the employer violated §75-b, the so-called "whistleblower statute," as a defense in a §75 disciplinary action? This was one of the issues considered by the Appellate Division in the Crossman-Battisti case.

June F. Crossman-Battisti, a Court Assistant in Nassau County Family Court, was found guilty of charges of insubordination and misconduct and terminated from her position.

Charges filed against Crossman-Battisti included allegations of verbal abuse of her superiors, refusal to obey a direct order, unauthorized absences and abuse of leave, altercations with other employees and defiance of authority.

One of the claims Crossman-Battisti made in her appeal of this determination was that the disciplinary action taken against her violated §75-b of the Civil Service Law. She contended that §75 disciplinary charges were filed against her "in retaliation for her whistleblower activities."

The Appellate Division rejected this defense, commenting that a §75-b defense in a disciplinary action "applies only where the disciplinary proceeding is based solely on the employer's retaliatory action."

In contrast, said the Court, where "as here, the employer presents evidence of specific incidents of inappropriate conduct which are found to demonstrate a separate and independent basis for the [disciplinary] action taken, a defense under Civil Service Law §75-b cannot be sustained."

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It then dismissed her appeal, commenting that it found that the penalty imposed, dismissal, met the Pell standard [Pell v Board of Education, 34 NY2d 222].

Testing individuals for drugs

Testing individuals for drugs

Bassi v City of New York, 233 A.D.2d 269

Loder v City of Glendale, 14 Cal. 4th 846

The administration of drug tests to employees continues to result in court challenges. The Loder and Bassi cases consider different situations where the courts were asked to determine if drug tests administered to employees and applicants for employment met constitutional requirements.

The Bassi Decision

George Bassi, a New York City firefighter, was terminated from his position because of use of cocaine.

Bassi admitted that he had used cocaine. In addition, he had tested positive in an EMIT test, which was confirmed by GC/MS tests.

But his admitted use of cocaine did not result in his termination. Rather it was his expulsion from a compulsory drug counseling program for "non-compliance" that was the critical factor that led to his dismissal.

Bassi was expelled after he tested positive in the EMIT and GC/MS tests administered to him in August 1994 while a participant in the program.

Was this sufficient to support a determination to terminate his employment as a firefighter?

The Appellate Division said it was, holding that it passed constitutional muster because "it was sufficiently attenuated" from the results of drug tests given to Bassi in April 1994 that had been suppressed for the purposes of making the determination to dismiss him.

The Loder Decision

The California Supreme Court has decided that public employers in California cannot require candidates for promotion to pass a test for illegal drugs in order to qualify for appointment.

Such tests, however, still may be used to screen applicants for initial appointment to positions in the public service.

The City of Glendale had required both "pre-employment and pre-promotion candidates" to pass drug and alcohol tests as a condition of appointment. The policy was challenged by Lorraine Loder, who contended that the requirement unconstitutionally violated a promotion candidate's right to privacy.

To resolve the controversy the courts applied a "balancing test" that weighted the "intrusiveness of the testing against the governmental interest served by the testing,"

The California Supreme Court distinguished between pre-employment testing and pre-promotion testing. The ruling cites guidelines adopted by the U.S. Supreme Court in Treasury Employees v Van Raab, 109 S.Ct. 1384.

In Van Raab the High Court examined the U.S. Customs Service's drug-testing program, which required urine samples from employees applying for promotion to positions involving suppressing the traffic of illegal drugs, requiring them to carry firearms or to handle classified materials, to provide urine samples.

The Justices said this program was subject to the reasonableness requirement of Fourth Amendment.

In other words, the California Supreme Court said, the key to the lawfulness of such tests was whether the drug testing program was a constitutionally permissible search.

Glendale contended that its tests were reasonable and constitutional because it had a strong interest in maintaining a workplace free of the problems created by drug use, "including diminished efficiency, increased absenteeism and added health expenses."

The California Supreme Court disagreed, concluding that pre-promotion drug testing of all employees is not constitutionally reasonable where the program does not consider the nature of the employment or the position sought.

The trial court had ruled that the test was unconstitutional for 36 of the City's 80 job classifications.

Nevertheless, the California Supreme Court held that the drug testing program as applied to new job applicants is constitutionally permissible, if the test is  "administered in a reasonable fashion as part of a lawful pre-employment medical examination that is required of each job applicant."

Why did the Court make such a distinction? The Court explained that "an employer has a significantly greater need for, and interest in, conducting suspicionless drug testing of job applicants than it does in conducting similar testing of current employees."

The Court's rationale was that the employer can observe work performance to determine if a current employee is abusing alcohol or drugs, but employers do not have a similar opportunity to observe potential new hires.

Another case involving drug testing of employees is Skinner v Railway Labor Executives' Association, 109 S.Ct. 1402.

In Skinner the U.S. Supreme Court said that the privacy expectations of railroad workers were diminished by employees' working in an industry that was closely regulated to ensure safety, a goal dependent in substantial part on the health and fitness of these employees.

Placing supervisors and subordinates in the same negotiating unit

Placing supervisors and subordinates in the same negotiating unit

CSEA and Genesee County, 29 PERB 3068

Is there any prohibition to mixing supervisors and the rank-and-file employees they supervise in the same negotiating unit? No, PERB ruled in the Genesee County case, which involved a petition to place ten  head nurses and supervising nurses in separate negotiating units rather than include them in the same unit as  200 non supervisory nurses.

PERB, noting that it had declined to establish a per se supervisory exclusionary rule, said "tensions, real or imagined, stemming from supervisor-subordinate relationships are not entitled to more weight in making a unit determination than any other of the myriad sources of workplace strain which can affect employees."

Roundtable Discussion via the Internet: Navigating LGBTQ+ Issues in the Workplace

Roundtable Discussion via the Internet: Navigating LGBTQ+ Issues in the Workplace

Source: Wolters Kluwer Legal & Regulatory U.S 

Noting that employers face a shifting patchwork of state laws and significant conflict between federal court interpretations of existing protections against employment discrimination and harassment that at least potentially shield LGBTQ+ applicants and employees, Wolters Kluwer Legal & Regulatory U.S  is offering a complimentary Webinar on Thursday, October 25, 2018, 3:00 PM - 4:00 PM EDT.*

WK indicates that the ways in which these applicants and employees may be negatively impacted by workplace biases, both obvious and subtle, continues to evolve. As a result, many employers are uncertain about how to navigate LGBTQ+ issues that may arise in their own workplaces. 

This roundtable discussion will cover:

• Who are the applicants and employees we are talking about?
• Knowing LGBTQ+ discrimination when you see it
• Dealing with gender fluidity
• Proactive measures to prevent discrimination
• How to handle discrimination complaints

To register for this complimentary Webinar click on:

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* Participants may be eligible for 1 CLE credit - Wolters Kluwer Legal & Regulatory U.S. is seeking CLE certificates for NY, NJ, CA, and FL. For other states, it is seeking the Uniform CLE certificates which attendees can use to obtain CLE credit. Upon completion of each webinar an informal certificate will be issued. Attendees will receive an email from Above the Law with filing instructions so official certificate can be issued for your records and attendance submission where necessary.

Disallowing a workers' compensation claim based on the record as it then existed does not bar a claimant from submitting additional evidence to support the claim

Disallowing a workers' compensation claim based on the record as it then existed does not bar a claimant from submitting additional evidence to support the claim

Matter of Nock v New York City Dept. of Educ., 8 NY Slip Op 02693, Appellate Division, Third Department

Tykeisha D. Nock [Nock], a school lunch helper, filed a claim for workers' compensation benefits claiming that she had sustained injuries to her spinal cord, lower back, legs, feet and thighs while standing, cleaning tables and lifting heavy pans at work.

Nock's employer, the New York City Department of Education* [Education] controverted the claim. A Workers' Compensation Law Judge found that Education's  notice of controversy was untimely and established a claim for a work-related injury to Nock's back. The Workers' Compensation Board, however, ultimately determined that Nock had not submitted proof that she had sustained a causally-related injury, and disallowed her claim.

Although Education's failure to file a timely notice of controversy challenging Nock's workers' compensation claim barred it from raising certain defenses, Nock still has the burden of demonstrating a causal relationship between her employment and the medical condition she alleged was work related in the workers' compensation claim filed with the Workers' Compensation Board. Nock appealed.

The Appellate Division sustained the Board's ruling, finding:

1. Nock's threshold obligation to submit prima facie medical evidence, which the Board found she had satisfied, required only that she submit "a medical report referencing an injury, which includes traumas and illnesses" but did not require that such "evidence draw a causal link between the injury and [Nock's] employment."

2. In order to establish her claim for benefits, Nock bore the burden of demonstrating, "by competent medical evidence, that a causal connection existed between her injur[ies] and her employment" and such proof  "must signify a probability as to the underlying cause of the [Nock's] injury which is supported by a rational basis."

3. Nock's medical evidence consisted solely a report from a physician indicating that she had a spinal injury and underwent surgery and recorded her subjective complaints and physical findings, while noting that her prognosis was "poor."

The Appellate Division said that the physician's report contained no specific diagnosis, make no mention of the history of Nock's injury nor how it related to her work at Education and, although the report made reference to other medical providers and tests, "no other evidence was submitted."

Explaining that a medical opinion need not be expressed with "medical certainty," the Appellate Division found that Nock failed to submit any medical evidence providing a causal link between her injury and her employment. Thus, said the court, it discerned no basis upon which to disturb the Board's finding that Nock failed to establish her claim.

As to Nock contention that it "was improper for the Board to terminate her claim without providing her an opportunity to submit additional medical evidence," the Appellate Division noted that the Board did not outright deny her claim but, rather, "disallowed the claim based on the record as it existed" and declared that "[n]o further action is planned at this time." The court said that it did not read the Board's decision as precluding Nock from submitting further medical evidence of a causal relationship between her injury and her employment with Education, explaining that Board's statement that "no further action is planned at this time" generally indicates that "the claim is merely currently inactive" and presumably may be "reactivated" should Nock present the Board with additional relevant medical evidence within a reasonable period of time.

* Department of Education is a self-insured employer.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02693.htm