Workplace Harassment Webinar: Updates to the Law and Investigation Techniques

This complimentary webinar, Workplace Harassment: Updates to the Law and  Investigation Techniques, is scheduled for  Wednesday, September 23, 2020, 8:00 a.m. to 10:00 a.m. EST, and replaces the originally scheduled iteration of Harris Beach's in-person Labor Seminar Series. SHRM Credit is Available.

 

The presentation will include:

• An overview of the federal and state laws prohibiting harassment in the workplace;
• Recent legislative and case law developments impacting harassment claims;
• Best practices in conducting workplace investigations.

Harris Beach participants:

• Daniel Moore, Leader of the Labor and Employment Practice Group
• Joshua Steele, Labor and Employment Practice Group
• Taylor Ventre, Labor and Employment Practice Group
• Lindsey Zullo, Labor and Employment Practice Group
  

To Register click on:

 https://us02web.zoom.us/webinar/register/WN_OOQSg9BCSEOiD39PZCturA

 

Questions may be submitted during the registration process. The webinar will be recorded in order to be available to those registering unable to participate in person. 

 

N.B. Harris Beach notes "This may be considered Attorney Advertising by the Rules of Professional Conduct."

 

Audits of New York state and local government agencies released during the week ending September 10, 2020

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued during the week ending September 10, 2020. Click on the text highlighted in color to access the complete report. 

State Departments and Agencies:

Department of Health (DOH): Improper Medicaid Payments for Recipients Diagnosed With Severe Malnutrition (Follow-Up) (2020-F-9) An audit issued in 2019 identified $416,237 in Medicaid overpayments on inpatient claims that contained a severe malnutrition diagnosis that the medical records did not appear to support. In a follow-up, auditors found DOH officials made some progress in addressing the problems identified in the initial audit report; however, additional action is needed. In particular, the Office of the Medicaid Inspector General had not taken action to review the Medicaid overpayments and make any recoveries. 

Office of Mental Health (OMH): Oversight of Provider Consolidated Fiscal Reports – Independent Living Inc. (2019-S-60) OMH takes certain steps to ensure costs and other information reported by providers on their fiscal reports is accurate, documented, properly calculated and allowable. These steps include performing desk reviews that incorporate computer-assisted auditing techniques to identify areas for further review by an analyst. However, OMH generally does not perform detailed audits or field reviews of providers’ fiscal report information. There is a risk that conclusions drawn from any inaccurate data may not be as useful as they otherwise could be. 

State University of New York at Stony Brook: Select Financial Management Practices at the Office of Transportation and Parking Operations (2018-S-11) Auditors identified control deficiencies over certain accounts, expenditures, and collections of revenues that jeopardize its ability to support operations. Three of the transportation and parking accounts have operated with a cash deficit balance for at least four consecutive years and $429,420 of the approximately $3.4 million in expenditures reviewed were not properly supported. Auditors also identified control deficiencies in the revenue collection process for the administration parking garage and metered parking accounts. 

Metropolitan Transportation Authority - New York City Transit: Subway Wait Assessment  (2019-S-62) Subway wait assessment is calculated at time points, which should consist of between 25 and 50 percent of all stops along each route. Auditors found that time points only cover between 11 and 30 percent of all stops on each route per direction. Therefore, the majority of the service provided is not captured in the wait calculation. The points did not include key subway stations such as Penn Station, 59th Street-Columbus Circle, and 14th Street. 

New York City Department of Social Services: Controls Over Capital Improvements at City-Owned Homeless Shelters (2018-N-3) The Department of Homeless Services lacks the necessary controls over city-owned homeless shelter capital improvement projects to ensure urgently needed projects are properly prioritized and completed timely and within budget. 

Office of Victim Services (OVS): Controls Over Selected Expenditures (Follow-Up) (2020-F-16) An audit issued in September 2018 found that OVS’ controls generally ensured that its expenditures for crime victim compensation claims, grants, and forensic rape examination (FRE) claims were made only to eligible victims and providers for eligible victim services. However, auditors identified minor discrepancies in OVS’ verification of FRE provider licenses and recommended they implement a risk-based approach to verify and validate provider licenses on submitted claims. In a follow-up, auditors found that OVS has implemented the recommendation from the initial report. 

School districts:

Dryden Central School District – Cash Management (Tompkins County) District officials did not follow their investment policy. As a result, officials did not maximize interest earnings for the district. Auditors determined officials did not develop and manage a comprehensive investment program. Auditors also found officials did not seek competitive interest rates. Officials earned interest totaling $246,431 during the audit period, however, they could have earned an additional $614,606 if they used other available investment options. 

Niagara Falls City School District – Out-of-District Tuition Billing (Niagara County) Tuition billings for district students enrolled in out-of-district programs were not always accurately calculated or properly supported. District officials overpaid two charter schools for 36 special education students by approximately $71,000 and may have overpaid for three students in foster care and three students in McKinney-Vento status by approximately $44,000. District officials were unable to properly monitor out-of-district tuition billings or ensure the billed amounts were accurate and proper because they did not obtain or retain adequate support documentation.


Municipal jurisdictions

County of Greene – Information Technology The county legislators did not monitor compliance with the county’s acceptable use policy, and did not adopt Information Technology (IT) policies. County legislators did not adopt a breach notification policy, a disaster recovery plan and a personal, private and sensitive information (PPSI) policy. In addition, county officials did not provide cyber security training to IT personnel and county employees. Sensitive information technology (IT) control weaknesses were communicated confidentially to officials. 

Town of Oyster Bay – Financial Condition Management (Nassau County) The board and town officials need to continue to improve their management and oversight of the town’s financial condition. Three of the town’s funds have carried repeated fund balance deficits, while two other funds have accumulated unrestricted fund balances equal to at least 45 percent of the next year’s budgets and no reserve funds were established. In addition, the town has nearly $605 million in outstanding debt, which is significantly more than neighboring towns and requires 37 percent of the revenue of the funds servicing this debt. The also board did not develop and adopt several comprehensive written plans and policies, including a multiyear financial plan, fund balance policy and reserve policy.

 

Former municipal official found guilt of " Corrupting the Government in the First Degree"

On September 10, 2020, New York State Attorney General Letitia James and New York State Comptroller Thomas P. DiNapoli announced the sentencing of the former City of Mount Vernon Corporation Counsel Lawrence Porcari for abusing his position as a public official to engage in a scheme that defrauded the Mount Vernon Board of Water Supply of more than $300,000 to pay the personal legal expenses of the former Mount Vernon Mayor Richard Thomas and a public relations firm.* 

The jury found Mr. Porcari guilty of Corrupting the Government in the First Degree, a Class B felony; Grand Larceny in the Second Degree as a Crime of Public Corruption, a Class B felony; Defrauding the Government, a Class E felony; and other offenses.

Attorney General James said that “Any public official who lies, cheats, or defrauds New Yorkers must be held accountable to the fullest extent of the law ... public servants have a responsibility to serve with transparency, integrity, and respect for the state and all of its people. I thank Comptroller Tom DiNapoli for his partnership and continued unwavering commitment to rooting out corruption in all its forms.”

A press release issued by  Kate Gurnett of the Office of the State Comptroller notes that "Since 2011, the Attorney General and State Comptroller offices have worked together to fight corruption through their Joint Task Force on Public Integrity. They have brought charges against dozens of individuals implicated in public corruption schemes around the state — resulting in the return of more than $11 million in restitution to taxpayers through these convictions."

The Comptroller’s investigation was handled by Comptroller DiNapoli’s Division of Investigations and was handled by Investigator Angel LaPorte, under the supervision of Deputy Chief Investigator John McManus and Supervising Investigator Sylvia Rivera, and the overall supervision of Investigation Division Chief Oliver Pu-Folkes. Trial presentation assistance was provided by IT Specialist Matthew Rosenberg. Assisting in the investigation and providing forensic auditing analysis was Forensic Auditor Andre Hartley, under the supervision of Deputy Chief Auditor Sandy Bizzarro. Also assisting for the Attorney General was Legal Support Analyst Rebecca Saber.  

The case was prosecuted by Assistant Attorney General Meagan Powers and Special Counsel Brian Weinberg of the Attorney General’s Public Integrity Bureau, under the supervision of Bureau Chief Travis Hill. The Criminal Justice Division is led by Chief Deputy Attorney General Jose Maldonado and supervised by First Deputy Attorney General Jennifer Levy. 

* Mr.Porcari was sentenced to 1-3 years in prison. However, Judge David Zuckerman has temporarily stayed the execution of Porcari’s sentence. A status hearing is scheduled for November 18, 2020.

####

Since taking office in 2007, State Comptroller DiNapoli has been committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money can be reported by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.ny.gov, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 

Filing a demand for arbitration of a dispute held controlled by the terms and conditions set out in the relevant collective bargaining agreement

One of the issues presented in this appeal concerned a demand for arbitration by the aggrieved party [Petitioner] in response to a claim seeking the payment of a $1,111,124 "withdrawal liability" following Petitioner's withdrawal from a pension fund.

The relevant collective bargaining agreement provided that any arbitration would be filed with and therefore governed by the American Arbitration Association's [AAA] rules, which rules, as relevant here, required Petitioner to file a timely demand for arbitration and to submit the required AAA filing fee* in order to initiate the arbitration process.

Petitioner contended that the district court erred in granting summary judgment against it, arguing that:

[1] It had made a timely demanded for arbitration of the issue; and

[2] Any failure to make a timely demand was excused because the arbitration rules of the AAA "imposed preconditions to arbitration that were not fair or equitable."

Rejecting the claims advanced by the Petitioner, the Circuit Court concluded that the Petitioner was bound by the AAA's rules, which required Petitioner to initiate arbitration with the AAA by filing a timely formal demand for arbitration and submitting the required filing fee, and found that the Petitioner had not done so.

Accordingly, Circuit Court of Appeals affirm the federal district court’s judgment.

* In this instance the AAA filing fee was $8,200.

'The decision is posted on the Internet at: https://law.justia.com/cases/federal/appellate-courts/ca2/19-1093/19-1093-2020-09-03.html

New York State launches a "Dashboard" providing real-time tracking of COVID-19 infections and testing operations of every New York State school and school district

On September 8, 2020, New York State's Governor Andrew M. Cuomo announced the launching of New York State's "COVID-19 Report Card",* an Internet Web Site which will track real-time COVID-19 infections and testing operations of every New York school and school district.** 

The Governor issued an Executive Order directing schools, local health departments, labs and all testing sites properly collect and report COVID-19 testing data for students and staff at each school in New York State, ensuring this information can be accurately presented on the online COVID-19 Report Card.

COVID-19 report card data includes: positive cases by date of students and staff; number of students and staff on-site; percentage of on-site positive cases; number of tests administered by school, test type, lab used and lag time; date of last submission and update.

As schools reopen and districts, local health departments, and labs will begin reporting this data to the NYS Dept. of Health, the COVID-19 Report Card, which is  designed to provide parents, teachers, students with comprehensive data updated on a daily basis and includes such data as:

Positive infections by date of students and staff by school and school district;

Whether a school or a school district, and its student and staff, are in a remote, in-person, or hybrid learning mode;

The number of students and staff on-site;

The percentage of on-site students and staff who test positive;

The number of COVID-19 tests administered by the school, test type, lab used and lag time; and

The date of the last submission or update.

Visitors to the website simply type in their home address to identify their school district, select their specific school, and all reported positives, a breakdown of testing and results for students and teachers and the current enrollment will be displayed.  The "Dashboard" will feature 7-day trend charts so visitors can track results over time. 

* New York school districts will be providing the Department of Health with information on the number of people who have tested positive for COVID-19 and other COVID-19 related data daily. Once the reporting starts, the COVID-19 Report Card will be activated and relevant material posted on the Internet at https://schoolcovidreportcard.health.ny.gov/.

** See, also, Chapter 168 of the Law of 2020, "An act to amend the labor law, in relation to requiring public employers to adopt a plan for operations in the event of a declared public health emergency involving a communicable disease; and to amend the education law, in relation to certain protocols for responding to a declared public health emergency involving a communicable disease." The act requires all public employers, i.e., the State and political subdivisions of the State including school districts, to create plans to adequately protect workers in the event of another state disaster emergency involving a communicable disease.  Plans must be submitted to unions and labor management committees within 150 days, and plans need to be finalized on or before April 1, 2021.