Paid Family Leave Webinars for Employers and HR Professionals

The New York State Workers’ Compensation Board kicks off 2021 with a Paid Family Leave webinar series starting January 5, 2021, for employers and human resources professionals.

 

As of January 1, 2021, Paid Family Leave is now in the final year of a four-year phased in approach. Over the last four years, benefits have been significantly enhanced to further improve the lives of working New Yorkers and their families, including more time off, more uses for Paid Family Leave, and more financial security.

 

Each one-hour session will provide an overview of New York State's landmark Paid Family Leave benefit, including important information regarding COVID-19, updates for 2021, and resources to help you share information with your employees.

 

Paid Family Leave is employee-paid insurance that provides employees with job-protected, paid time off from work to bond with a new child, care for a family member with a serious health condition, or assist when a spouse, domestic partner, child or parent is deployed abroad on active military service.  As of March 2020, Paid Family Leave may also be available in the event an employee, or their minor dependent child, is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19.

 

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REGISTRATION IS REQUIRED

 

Sign up to participate in a session on one of the following dates. Each session is free and there will be time at the end for questions. 

Tuesday, January 5, 2021: 12:00 p.m. - 1:00 p.m.

Wednesday, January 20, 2021: 12:00 p.m. - 1:00 p.m.

Tuesday, February 9, 2021: 12:00 p.m. - 1:00 p.m.

Click here to access Registration

 

Appeal to the Commissioner of Education alleges defects in conducting an election of candidates to the school board

In this appeal to the Commissioner of Education* the Petitioner, a disappointed candidate for election to the school board, submitted an appeal to the Commissioner alleging a number of procedural defects in school board's conducting the election including [a] allegations of "improper electioneering;" [b] including the name of a candidate the ballot "ineligible to serve as trustee;" and [c] failing to properly announce or certify the election results."

After initially addressing a procedural issue concerning the nature of a reply to the school district's answer to Plaintiff's petition and explaining "A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition," the Commissioner turned to the merits of the appeal submitted by the Petitioner with respect to issues involving:

1. The Governor's suspension of Education Law §§2002 and 2022 under color of the ongoing state of emergency caused by the novel coronavirus pandemic;

2. §§2018 and 2608 of the Education Law to the extent necessary “to eliminate any minimum threshold of signatures required” for the nominating petition of a candidate seeking election to a board of education;"

3. Voting using absentee ballots and the procedures to be followed related to  declaring a ballot invalid and other any irregularities actually affecting "the outcome of the election or were so pervasive that they vitiated the electoral process;"

4. Recounting ballots in school district elections; and

5. Attacks on the integrity of the tallies and the returns of the inspectors of election, such as a showing of fraud or improper conduct.**

Observing that "It is well settled that mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results," and citing various earlier Decisions of the Commissioner of Education addressing this point, the Commissioner found that Petitioner "failed to carry her burden of proof to annul the election results or compel a recount" and, after explaining the reasons in support of such findings, the Commissioner dismissed the Petitioner's appeal.

In the words of the Commissioner, "Petitioner has failed to meet her burden of proof to establish that any irregularities affected the outcome of the election.  Therefore, there is no basis upon which to order a recount or invalidate the results of the election" and dismissed Petitioner's appeal.

*Decisions of the Commissioner of Education, Decision No. 17,947.

** To the extent the Commissioner did not specifically address an issue raised by Petitioner in her appeal, the Commissioner said that she found such issue "to be without merit."

 Click here to access the text of the Commissioner's decision

 

The doctrine of res judicata bars considering claims that could have been advanced in an earlier administrative disciplinary hearing in the course of subsequent litigation

Although the Appellate Division held that the Plaintiff's breach of contract claims against the New York City Department of Education [DOE] was properly dismissed for failure to serve a notice of claim within three months of claim accrual, citing Fifty CPW Tenants Corp. v Epstein, 16 AD3d 292, the court further observed that these breach of contract claims against DOE were all related to Plaintiff's termination. As Plaintiff's breach of contract claims  "... were litigated, or could have been litigated in his Education Law §3020-a hearing or his proceeding to vacate the arbitration award," the Appellate Division ruled that the claims were barred by the doctrine of res judicata."

Addressing Plaintiff's complaint that his collective bargaining representative, the United Federation of Teachers [UFT], failed to properly represent him during his Education Law §3020-a disciplinary proceedings, the Appellate Division noted that UFT's alleged failure "to properly represent" Plaintiff occurred almost a year before he had commenced the instant litigation. The court explained that the applicable statute of limitations was "four months from the date the [Plaintiff] knew or should have known that such breach occurred," and thus it was untimely. 

Further, opined the Appellate Division, "[c]haracterizing a claim for breach of the duty of fair representation as one for breach of contract is unavailing to avoid the four-month limitations period," citing Roman v City Empls. Union Local 237, 300 AD2d 142, lv denied 100 NY2d 501.

In addition, the Appellate Division noted that Plaintiff's claim was based on an alleged breach of contract based on Plaintiff's representation that UFT failed to offer him opportunities to "participation in certain remediation programs during the 2008-09, 2009-10, and 2010-11 school years." As this issue related to Plaintiff's §3020-a disciplinary hearings, the court said the claim was subject to a six-year statute of limitations and thus it would run, at the latest, only until 2017.

The Appellate Division unanimously affirmed Supreme Court's ruling granting DOE's and UFT's motions to dismiss Plaintiff's complaint.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07516.htm

 

Emergency Medical Technician found guilty of disciplinary charges alleging that he addressed vulgar language to a triage nurse is suspended without pay

The New York City Fire Department [Department] served disciplinary charges on an Emergency Medical Technician [EMT] alleging that the EMT used vulgar language in the course of his responding to a work-related question posed by a hospital triage nurse in violation of Department rules. This, the Department contended, "created a hostile work environment."

At the disciplinary hearing that followed, the Department presented documentary evidence and testimony given by the EMT's coworker and a nurse who had overheard the EMT's response to the triage nurse. The EMT testified that he did not recall the incident but did not challenge the charge in the light of the testimony of the Department's witnesses.

OATH Administrative Law Judge Ingrid M. Addison found the EMT guilty of violating five of the six rules he was alleged to have violated and recommended that the EMT be suspended from his employment without pay for 45 day.

Then Judge Addison, noting that EMT's misconduct was based on a single incident, opined that imposing "a single penalty" was appropriate under the circumstances and so recommended to the Department.

The decision is posted on the Internet at http://archive.citylaw.org/wp-content/uploads/sites/17/oath/20_cases/20-1798.pdf

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Prosecuting a claim of "employer retaliation" allegedly based on an employee's having exercised his federal Family Medical Leave Act rights

The federal Family Medical Leave Act, 29 U.S.C. §2612(a)(1)(C), [FMLA] entitles eligible employees to twelve workweeks of unpaid leave per year “to care for [a] spouse, or a son, daughter, or parent . . . , if such spouse, son, daughter, or parent has a serious health condition.”

The FMLA prohibits an employer from interfering with an employee’s exercise of this entitlement or retaliating against an employee for exercising this entitlement.* 

In this action the U.S. Circuit Court of Appeals, Second Circuit, distinguished between prosecuting claims of “interference” and claims of “retaliation” under the FMLA as follows:

a. An employee typically brings an “interference” claim when the employer allegedly has prevented or otherwise impeded the employee’s ability to exercise rights under the FMLA, characterized as ex ante FMLA protection; and

b. “Retaliation” claims, in contrast, typically involve an employee, having actually exercised his FMLA rights or opposed perceived unlawful conduct within the meaning of the FMLA, subsequently alleges that he was subjected to some adverse employment action by the employer. This is characterized as ex post FMLA protection.

To establish a prima facie case of interference with FMLA rights, a plaintiff must demonstrate that:

(1) Plaintiff is an eligible employee for FMLA leave within the meaning of the FMLA;

(2) The defendant is an employer as defined by the FMLA;

(3) Plaintiff was entitled to take leave under the FMLA

(4) Plaintiff gave notice to the defendant of her intention to take leave; and

(5) Plaintiff was denied benefits to which she was entitled under the FMLA.

In contrast, to establish a prima faciecase of retaliation within the meaning of the FMLA, the plaintiff must demonstrate that:

(1) Plaintiff “exercised rights protected under the FMLA”; 

(2) Plaintiff“was qualified for [the] position”; 

(3) Plaintiff “suffered an adverse employment action”; and 

(4) “the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent.”

Courts test FMLA retaliation claims under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, whereby upon the plaintiff's making a prima facie case of retaliation the burden shifts to the employer to demonstrate action was not in the nature of retaliation but made for legitimate business reasons. 

Then, as the court held in Weinstock v. Columbia Univ., 224 F.3d 33, if the employer demonstrates that the action taken was for "a legitimate business reason," the burden of going forward then shifts back to the plaintiff, who "must then show that [the employer's] proffered explanation is pretextual.” A plaintiff may satisfy this burden “by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered” reason, or by providing evidence such that "a reasonable fact finder could conclude that the prohibited reason was a motivating factor in the adverse employment action."

* See Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158

Click here to access the text of the Circuit Court's decision.