New York City's failure to pay for certain pre-shift and post-shift work it required certain of its employees to perform held a willful violation of the federal Fair Labor Standards Act

In Perry, et al, v The City of New York, et al, Docket No. 21-2095, decided August 25, 2023, the United States Court of Appeals for the Second Circuit, said:

"In this collective action, a group of 2,519 EMTs and paramedics allege that their employer, the City of New York, willfully violated the Fair Labor Standards Act by requiring them to perform work before and after their shifts without paying them for that work unless the plaintiffs specifically requested overtime compensation from the City.

"A jury agreed following a twelve-day trial, and the U.S. District Court for the Southern District of New York (Broderick, J.) entered a $17.78 million judgment against the City.

"The City now appeals, raising four arguments:

"(1) the jury’s liability verdict cannot stand because plaintiffs failed to request overtime pay for the work at issue;

"(2) the jury’s willfulness finding was not supported by the evidence;

"(3) due to an erroneous instruction, the jury failed to make a necessary factual finding regarding the calculation of damages; and

"(4) the district court incorrectly forbade the jury from considering whether one component of the plaintiffs’ post-shift work was de minimis and therefore non-compensable.

'The City accordingly asks that we reverse the jury’s verdict or remand for a new trial on damages."

The Second Circuit declined to do so and instead affirmed the district court's decision "in toto."

Click HERE to access the text of the Second Circuit's decision posted on the Internet.

 

 

Attorneys invited to consider a career in public service with the State of New York

The New York State Department of Civil Service invites attorneys to consider a career in public service with the State of New York.

For information about current employment opportunities click HERE.

Municipal and school audits released by the New York State Comptroller

On August 24, 2023, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

Click on the text highlighted in color to access the complete audit report

 

Town of Homer: Non-Payroll Disbursements (Cortland County)

The board and supervisor did not provide adequate oversight of non-payroll disbursements. As a result, the town made duplicate payments totaling $79,806, and has an increased risk that errors or irregularities could occur and remain undetected and uncorrected. Auditors found the board and supervisor did not, as required,  segregate duties or implement compensating controls relating to non-payroll disbursements; did not, as required, establish procedures to detect and prevent duplicate payments from occurring; or did not, as required, conduct or ensure an annual audit of the supervisor’s records and reports was performed.

 

Chatham Central School District – Financial Management (Columbia County)

The board and district officials did not properly manage fund balance and reserves. The board and district officials’ consistent practice of appropriating fund balance that is not needed and maintaining unreasonable reserve balances circumvents the statutory limit on surplus fund balance and lacks transparency. The district annually appropriated over $1.3 million of fund balance they did not need or use to finance operations; therefore, taxpayers were taxed more than necessary. The district, on average, annually over-estimated appropriations by $3.2 million (9.9%) and maintained four reserves totaling $6.6 million without demonstrating they were reasonably funded.

 

Blind Brook-Rye Union Free School District – Capital Project Change Orders (Westchester County)

The board and district officials did not ensure that all project change orders were submitted as required to the State Education Department (SED) for approval. As a result, officials created a risk that SED could reduce the district’s building aid reimbursement for all unapproved work. For the 151 change orders reviewed totaling about $3.8 million: 122 (81%) totaling approximately $2.7 million were not submitted to SED, as required. In addition, six change orders totaling $155,173 were approved by the commissioner for only $74,002 and the assistant superintendent was not aware that they were approved and had no explanation for the difference in the amount received.

 

Village of Port Dickinson – Capital Asset Accountability (Broome County)

Village officials did not properly record and account for all capital assets. As a result, the village has an increased risk its assets could be lost, stolen or misused without detection. The board did not adopt a written capital asset policy or conduct periodic inventories and officials did not maintain a complete and current capital asset list. Auditors were unable to definitively locate 32 of 35 assets reviewed to the village’s asset list because the asset, purchase invoice and asset list did not contain specific identifying information.

 

Village of East Syracuse – Board Oversight of Cash Receipts and Disbursements (Onondaga County)

The board did not adequately monitor cash receipts and disbursements. Due to the lack of oversight and compensating controls, there is an increased risk that errors and irregularities could occur and remain undetected and uncorrected. The treasurer performed nearly all aspects of the cash receipts and disbursements processes, and the board did not establish controls to help ensure cash was safeguarded. The board did not review, or designate anyone to review, bank statements and canceled check images, bank reconciliations and bank transfers, or compare receipts with deposits to help ensure cash was accounted for and records were accurate. The board also did not ensure village officials reviewed and certified all payroll payments to provide assurance employees received accurate pay. In addition, the treasurer paid 49 claims totaling $258,182 without the board’s audit and approval.

 

Ulster Board of Cooperative Educational Services: Network User Accounts (Ulster County)

Officials did not adequately manage and monitor network user accounts to help prevent unauthorized use, access, or loss. In addition to sensitive information technology control weaknesses that were communicated confidentially to officials, auditors found that officials did not disable 17 unneeded network user accounts or review and did not disable 76 potentially unneeded user accounts.

 

Town of Sempronius – Real Property Tax Exemptions Administration (Cayuga County)

The assessor did not properly administer all of the real property tax exemptions reviewed and did not ensure applicants provided documentation required to grant an exemption or maintain the documentation. Auditors reviewed 58 exemptions totaling $2.7 million and found that 32 exemptions (55%) totaling $1.4 million lacked one or more pieces of documentation needed to verify eligibility and the assessor’s exemption calculation. Because each exemption impacts the tax roll, a miscalculated or inappropriately granted exemption can cause inequity among taxpayers.

 

Hamlin Morton Walker Fire District – Financial Management (Monroe County)

The board and officials did not effectively manage fund balance. From 2020 through 2022, restricted fund balance declined by $676,641 (66%). As of Dec. 31, 2022, unrestricted fund balance was $34,092, which was less than 4% of the 2023 appropriations. The board underestimated expenditures by nearly $1.5 million (45%) and underestimated revenues by $215,772 (8%) for 2020 through 2022. The district also did not have a written multiyear financial plan or adequate capital plan, which inhibits the board and officials from effectively managing finances and addressing future operating and capital needs.

 

Social Media Changes Are Impacting Government Messaging

Government agencies are working to conform to a changing social media landscape these days, with Twitter’s rebranding to X — among other things — presenting challenges.

Click HERE to access the text of Government Technology's report posted on the Internet.

Essentials in judicial review of an employee administrative disciplinary action

In a proceeding pursuant to CPLR Article 78 to review a determination of the Town terminating the plaintiff [Employee] based on the findings and recommendation of a disciplinary hearing officer, Supreme Court [a] denied the Town's motion to dismiss the Employee petition; [b] granted Employee's petition to the extent of annulling the penalty imposed; and [c] remitting the matter to the Town for the imposition of a less severe penalty.

The Town appealed the Supreme Court's decision.

The Appellate Division:

[1.] Confirmed the Town's disciplinary determination; 

[2.] Denied the Employee's petition; 

[3.] Granted the Town's motion to dismiss the Employee's petition; and 

[4.] Dismissed the proceeding "on the merits".

The Appellate Division explained:

1. "In an [administrative] employee disciplinary case, judicial review of factual findings made after a hearing pursuant to Civil Service Law §75 is limited to consideration of whether that determination was supported by substantial evidence";

2. "Substantial evidence is related to the charge or controversy and involves a weighing of the quality and quantity of the proof; the term means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact";

3. "When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the administrative agency"; and

4. Employee's petition raised the issue of whether the Town's determination was supported by substantial evidence, and the parties did not raise, nor did the Supreme Court address, any objection that could have terminated the proceeding within the meaning of CPLR 7804(g), the Supreme Court should have transferred the proceeding to this Court without disposing of the substantial evidence issue.

The Appellate Division opined that contrary to the Employee's contention, the record before the hearing officer contained substantial evidence to sustain the findings of misconduct and, citing Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d at 1046, and, contrary to the Employee's assertion, noted that "hearsay statements ... were admissible" in a Civil Service Law §75 administrative disciplinary action.

Further, said the court, "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law" and "An administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law" (see Matter of Bolt v New York City Dept. of Educ., 30 NY3d 1065).

In the words of the Appellate Division: "The penalty of termination of employment imposed upon [Employee under the circumstances] did not shock one's sense of fairness," particularly considering that the incident triggering the disciplinary action was not the first time that Employee was disciplined "for engaging in such behavior."

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

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