AELE case notes, publications, and seminars alert for November 2020

Gender Discrimination in Correctional Policies. New November AELE Law Journal article, https://www.aele.org/law/2020all11/2020-11MLJ301.pdf

Jail & Prisoner Legal Issues Seminar---Attend Live or Virtually On Demand.  A 3.5-day updated seminar on "Jail & Prisoner Legal Issues." A first: You can attend the seminar live or virtually on demand! The seminar will become available on Monday, January 25, 2021 and will remain open for 60 days. Another first is online registration and payment.  https://aele.org/jail-law-seminar.html 

November Law Enforcement Liability Reporter: This issue has cases on assault and battery: handcuffs, dogs, false arrest/imprisonment: warrant, false arrest/imprisonment: unlawful detention, firearms related: intentional use, malicious prosecution, and public protection: hostages. http://www.aele.org/law/2020all11/LR2020NOV.pdf

November Fire, Police & Corrections Personnel Reporter:This issue has cases on arbitration procedures, collective bargaining: in general, disciplinary punishment, First Amendment, F.L.S.A.: administrative & executive exemption, handicap/abilities discrimination: reasonable accommodation, pay disputes, retaliatory personnel actions, workers’ compensation.  http://www.aele.org/law/2020all11/FP2020NOV.pdf

November Jail and Prisoner Law Bulletin: This issue has cases on COVID-19, First Amendment, medical care, Prison Litigation Reform Act: exhaustion of remedies, prison and jail conditions: radon, prisoner discipline, prisoner suicide, religion, sex discrimination, and sexual assault. http://www.aele.org/law/2020all11/JB2020NOV.pdf

 

AELE also offers more than 36,000 case summaries, divided into 700+ topics:

1. Law enforcement civil liability at http://www.aele.org/law/Digests/civilmenu.html

2. Employment law and discipline at http://www.aele.org/law/Digests/emplmenu.html

3. Jail and prisoner legal issues at http://www.aele.org/law/Digests/jailmenu.html

4. Electronic control weapons at http://www.aele.org/law/Digests/ECWcases.html

New York State's Productivity Enhancement Program for certain State officers and employees in the Executive Branch of government

New York State's Productivity Enhancement Program (PEP) allows eligible officers and employees of the State of New York as the employer represented by the Civil Service Employees Association, representedby District Council 37 and Managerial/Confidential employees in the Executive branch of State government to exchange previously accrued annual leave (vacation) and, or, personal leave for a credit to be applied to their employee contribution for NYSHIP health insurance premiums on a biweekly basis. The PEP program for 2021 is set out in the "Program Description" posted on the Internet at  https://www.cs.ny.gov/attendance_leave/pb20-06.pdf.

The enrollment period for 2021runs from Monday, November 2, 2020 through Monday, November 30, 2020.

 

Application for accidental disability retirement benefits rejected on finding that the alleged disability was not suffered in the performance of the applicant's duties.

Plaintiff in CPLR Article 78 action appealed Supreme Court's dismissal of her petition seeking to have the court annul the New York City Employees' Retirement System's [NYCERS] determination denying Plaintiff's application for accidental disability retirement [ADR]. Plaintiff appealed.

Citing Borenstein v New York City Employees' Retirement System, 88 NY2d 756, the Appellate Division sustained Supreme Court's ruling, concluding that the denial of Plaintiff's application for ADR was "not arbitrary and capricious, but [was] based on credible evidence in the record."

The court noted NYCERS' findings that:

[1] Plaintiff was neither physically nor mentally incapacitated based on her medical and mental health records, an independent psychiatric examination, and her interview before NYCERS' Medical Board;

[2] There was no contemporaneous evidence showing the circumstances of a physical assault on Plaintiff by her coworker as described by the Plaintiff during the administrative proceeding on the date she set out in her application for ADR; and

[3] The alleged physical and psychological injuries caused by the alleged physical assault did not result from an accident or arise in the course of Plaintiff's performance of her duties.

As to Plaintiff's claim that she was deprived of due process, the Appellate Division said that allegation "is belied by the record showing that she was given an adequate opportunity to present her case before [the NYCERS]."

The decision is posted on the Internet at

http://www.nycourts.gov/reporter/3dseries/2020/2020_06229.htm.

 

Governor Cuomo releases guidelines on testing protocol for schools to reopen in red or orange micro-cluster zones

On October 31, 2020, Governor Andrew M. Cuomo released guidelines for schools to reopen in red and orange micro-cluster zones in order to help keep schools in focus areas open to in-person instruction. The guidelines require mass testing in schools before they reopen followed by vigilant symptom and exposure screening conducted daily. Impacted schools can reopen as early as Monday. However students and faculty must be able to provide a negative COVID-19 test result prior to going back to the classroom.  

New York State will provide rapid test kits for schools wishing to participate.

"In the micro-cluster zones, we've been working with schools in the red and the orange zones. The schools, private schools, Catholic schools, yeshivas, want to be open in the red and orange zones, and we've been working with them to try to find ways to keep people safe but allow children to go to school," Governor Cuomo said. "We have agreed with them on a protocol that keeps people safe and allows children to be educated."

In order for a school to reopen in a red or orange micro-cluster zones, schools must:

Remain closed for at least 4 calendar days after the zone designation is announced (48 hours to ensure lack of infectious contact in the school, and additional time for testing), and may re-open as early as the 5th calendar day.

Ensure that no person may attend in-person on the campus without first receiving a negative test result, this applies to faculty/staff as well as students.

Schools may reopen after these steps are taken, with students and faculty/staff who are positive or close contacts of positive cases appropriately excluded from school grounds. Additionally, the test result must be no more 7 days past the date of specimen collection on the day in-person learning reopens and date of specimen collection must be after date the zone was established.

After a school reopens in a red or orange micro-cluster zone, vigilant symptom and exposure screening must be conducted daily and must follow the below guidelines:

25% of the in-person learning school community (both students and faculty/staff) must be tested per week.

The school should ensure that it provides opportunities to test on school grounds, or otherwise facilitates testing and accepts test results from healthcare providers.

If the school does not hold a testing event or provide testing on school grounds, test results provided to the school as part of the 25% testing of the population must be received within 7 days from the date of specimen collection and specimen collection must be after the school reopens.

Each week the 25% of the school population tested must be composed of unique individuals who have not previously been tested for the surveillance screening, as part of the weekly 25% testing until the fifth week of weekly testing at which point the individuals who participated in the first week of testing should be tested again.

Members of the school community who test positive must isolate according to established guidelines.

Contact tracing must be performed to ensure that contacts to newly identified positive individuals are quarantined according to established guidelines.

New York State will provide schools with rapid test kits if requested. The schools must provide certified personnel (with necessary laboratory permits) to do the tests, and all results must be entered into ECLRS and reported on the school survey to the NYS COVID-19 Report Card.

Schools that cannot meet the reopening requirements must remain in remote learning for the duration of the zone designation. If the 25% of the school population random sampling generates a minimum of 9 cases, or if for a sample size of more than 300 weekly tests, achieves a positivity rate of 2% (6 cases or more depending on size) in New York City, or 3% (9 or more cases) outside of the city, then the school will be required to close. Reopened schools that fail to comply with these requirements could be subject to Section 16 orders, or other fines and penalties.

Qualified privilege in an action seeking damages for alleged defamation

 In this action to recover damages for alleged defamation, the several defendants [jointly "Respondents"] separately appealed from an order of Supreme Court denying their separate motions to dismiss the complaint insofar as asserted against each of them.

The president [Plaintiff] of a local branch of a labor union representing the workers of the Respondent private sector employer [Company] commenced this action to recover damages for defamation, alleging that the Company, together with the Company's owner [Owner]  and the Company's attorney [Attorney] made certain defamatory statements about Plaintiff, which were then widely distributed to the Company's employees in an effort to influence the outcome of an affiliation contest between the Plaintiff's union and a rival union.

Plaintiff further alleged, among other things, that the several Respondents made the defamatory statements with knowledge of their falsity and for the purpose of damaging the Plaintiff's reputation among the Company's employees and impugning his ability to continue acting as president of the union's local branch. The Plaintiff also alleged that, as a result of the conduct of the several Respondents he suffered actual, compensable damage to his reputation.

Affirming the decision of the Supreme Court, the Appellate Division explained that where, as here, either party to a labor dispute is alleged to have circulated false and defamatory statements during the course of labor negotiations, "a qualified privilege attaches," which renders the action preempted by federal law. In order to overcome this qualified privilege and retain state court jurisdiction over the matter, the court said that the plaintiff's pleadings must allege both that the statements were made with malice and that they injured the plaintiff. *

Holding that contrary to their contention, and with respect to "the appellants appearing separately and filing separate briefs," the court opined that Plaintiff's pre-answer motions must be assumed to be true and are sufficient to overcome the qualified privilege relied upon by these appellants.

Accordingly, the Appellate Division affirmed the Supreme Court's determination denying the separate motions of the appellants appearing separately to dismiss the complaint insofar as asserted against each of them, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

* See O'Neil v Peekskill Faculty Assn., 120 AD2d 36 at 42

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06090.htm