Terminating an employee in the Classified Service prior the employee's completion of his or her maximum period of probation

The Appellate Division denied a petition of an employee [Plaintiff] seeking to annul the appointing authority's [Employer] decision to terminate the employment of the Plaintiff before she completed her probationary period.

The court opined that as probationary employee, Plaintiff "may be discharged for any or no reason at all in the absence of a showing that ... her dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law", citing Smith v New York City Department of Corrections, 292 AD2d 198.

The Appellate Division noted Plaintiff alleged "no unlawful motive for her termination and failed to satisfy her burden of demonstrating bad faith". Further, said the court, Petitioner's own affidavits attesting to her satisfactory job performance "did not create a substantial issue of bad faith sufficient to warrant a hearing in light of [the Employer's] submission of a termination memo documenting several performance failures, which provided a rational basis for [Employer's] decision".

As the Court of Appeals opined in York v McGuire, 63 NY2d 760, "After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith."

Click HERE to access the Appellate Division's decision posted on the Internet.

Advisory Memorandum 2023-02, Special Military Benefits and Post-Discharge Benefits through December 31, 2023

The Department of Civil Service has published the following Attendance and Leave Memorandum:

Advisory Memorandum 2023-02, Memoranda of Understanding

Extension of Special Military Benefits and Post-Discharge Benefits

Effective through December 31, 2023

Th text of Advisory Memorandum 2023-02 is posted on the Internet at:
https://www.cs.ny.gov/attendance_leave/AdvMemo23-02.cfm

A PDF version of the Advisory Memorandum 2023-02 is posted on the Internet at:
https://www.cs.ny.gov/attendance_leave/AM2023-02.pdf

 

To view previous published Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cf

 

Applying the Doctrine of Estoppel to a public entity

The Doctrine of Estoppel is sometime sought to be applied to a government entity in an effort to require or prevent the governmental entity from performing, or failing to perform, an alleged action or commitment that was relied upon by the complaining party.

In Taranto v City of Glen Cove, 212 AD3d 826, the Appellate Division addressed the application of the Doctrine of Estoppel in a challenge to an action taken by the City with respect health insurance benefits then enjoyed by certain of the City's employees.

The Appellate Division opined:

"A municipal resolution is, in general, a unilateral action that is temporary in nature and, thus, it does not create any vested contractual rights", citing Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326. The court concluded that a local government is "free to terminate retirement health insurance and other benefits they may have previously elected to provide [by resolution] to employees and other officials.

The court also noted that "[as] a general rule, estoppel may not be invoked against a governmental body with regard to the exercise of its governmental functions or its correction of an administrative error [citations omitted] and "[an] exception to the general rule applies only in the 'rarest of cases' [typically] involving the wrongful or negligent conduct of a governmental subdivision, or its misleading nonfeasance, which induces a party relying thereon to change his or her position to his or her detriment resulting in manifest injustice."

In this instance the Appellate Division concluded that Taranto failed to establish that his complaint fell within the narrow exception warranting estoppel to be applied against the City.

* The court cited:  Matter of Weaver v Town of N. Castle, 153 AD3d 531; Iasillo v Pilla, 120 AD3d 1192; Matter of Kapell v Incorporated Vil. of Greenport, 63 AD3d 940; and Matter of Handy v County of Schoharie, 244 AD2d 842.

Click HERE to access the Appellate Division's decision posted on the Internet.

Eligibility of a school district employee for unemployment insurance benefits for the period between two successive academic years

With respect to eligibility of employees of a school district for unemployment insurance benefits between "two successive academic years, the Appellate Division, citing Labor Law §590(1), said "[a] professional employed by an educational institution is precluded from receiving unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment." Further, said the court, "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."

A school bus driver [Claimant] had worked for the employer [School District] for over 30 years. Starting March 16, 2020, as a result of the COVID-19 pandemic, Claimant was not required to work but continued to receive her regular salary for the remainder of the 2019-2020 school year, ending on June 19, 2020. On June 3, 2020, Claimant received a letter from the School District informing her that it wished to retain her in the same position during the 2020-2021 school year, which she signed and returned to the School District. 

Despite this letter, prior to the end of the 2019-2020 school year, Claimant filed claims for unemployment insurance benefits. From June 21, 2020 until August 23, 2020, Claimant received unemployment insurance benefits, as well as federal pandemic unemployment compensation and lost wage assistance pursuant to the Coronavirus Aid, Relief and Economic Security Act of 2020 [the CARES Act]. 

The Unemployment Insurance Appeal Board [Board], among other things, sustained the initial determination finding that Claimant was not totally unemployed during the week ending June 21, 2020 and that she was ineligible for Pandemic Unemployment Assistance [PUA] benefits.* Claimant appealed the Board's determination.

The Appellate Division noted that, considering the letter assuring Claimant of the continued applicability of the collective bargaining agreement as well as the testimony concerning Claimant's seniority and the continued need for busing, there was substantial evidence supporting the Board's finding that the School District provided Claimant with a reasonable assurance of continued employment.

Addressing Claimant's eligibility for PUA benefits for the period between academic terms outside of her contract, the Appellate Division opined "substantial evidence supports the Board's finding that Claimant was ineligible for such benefits."

* Citing Matter of Barnett [Broome County Community Coll.—Commissioner of Labor], 182 AD3d 763, the Appellate Division observed that factual issues are for the Unemployment Insurance Appeal Board to determine and, as such, its decision will be upheld if supported by substantial evidence.

Click HERE to access the Appellate Division's decision posted on the Internet.

The claimant for workers' compensation benefits has the burden of showing the claimed occupational disease or injury resulted from a distinctive feature of employment

Claimant [Plaintiff] had been employed by the New York City Transit Authority [NYCTA] for 33 years. She served as a railroad clerk until 1995 and thereafter as  a station agent. Plaintiff filed a claim for workers' compensation benefits for the occupational disease of bilateral carpal tunnel syndrome that Plaintiff attributed to her performing repetitive job duties during her 33-year employment by NYCTA.

NYCTA controverted the claim and ultimately a Workers' Compensation Law Judge [WCLJ] disallowed the claim, finding, among other things, that Plaintiff had not established that her medical condition was causally related to her employment duties. The Workers' Compensation Board [Board] affirmed the WCLJ's decision, finding that Plaintiff had failed to demonstrate a sufficient causal link between her alleged occupational disease and a distinctive feature of her employment. Plaintiff appealed the Board's decision.

The Appellate Division affirmed the Board's ruling, explaining:

1. An occupational disease is "a disease resulting from the nature of [the] employment and contracted therein" (Workers' Compensation Law §2[15]), and "does not derive from a specific condition peculiar to an employee's place of work, nor from an environmental condition specific to the place of work"; and

2. "To establish an occupational disease, the claimant must demonstrate a recognizable link between his or her condition and a distinctive feature of his or her employment . . . , [and] the Board's decision as to whether to classify a certain medical condition as an occupational disease is a factual determination that will not be disturbed if supported by substantial evidence ... notwithstanding other evidence in the record that could support a contrary conclusion".

Here, said the court, a review of the record supports the Board's determination that Plaintiff did not present sufficient credible medical evidence to establish a causal relationship between her bilateral carpal tunnel syndrome and a distinctive feature of her employment.

Citing Matter of Yolinsky v Village of Scarsdale, 202 AD3d at 1265, the Appellate Division opined "... it is within the province of the Board to evaluate the medical evidence before it." Considering "the less-than-compelling medical evidence tendered by Plaintiff," the court found that substantial evidence supported the Board's finding that Plaintiff failed to establish that she had sustained an occupational disease.

Click HERE to access the Appellate Division's decision posted on the Internet.