Payment for unused leave credits upon resignation or separation from employment

Payment for unused leave credits upon resignation or separation from employment
Gratto Ausable v Valley CSD. 271 AD2d 175

The Gratto case explores the obligation of the employer to pay an individual for his or her unused vacation credits upon his or her involuntary termination. The general rule set out by the Appellate Division, Third Department in dealing with claims for such payment: use it or lose it!

Ausable Valley CSD Superintendent John Gratto’s employment contract with the school district provided that Gratto was to receive 25 paid vacation days a year, subject to a maximum accumulation of 45 days of vacation credit. The contract, however, was silent with respect to making a cash payment for any unused vacation time upon the termination of Gratto’s employment.

When Gratto was involuntarily terminated from his position he claimed that he was entitled to payment for his unused vacation credits upon his separation as he had earned it. The district disagreed and refused to pay him for his unused leave credits.

The absence of a statement providing for the cash liquidation of leave credits proved to be one of a number of critical elements in the Appellate Division’s resolution of his appeal from a Supreme Court judge’s summarily dismissing his complaint.

The Appellate Division said that “[i]n the absence of a statutory or contractual basis for recovery, a public employee may not recover the monetary value of unused vacation time that has accrued as of the date of termination.”

Gratto attempted to avoid this general rule by contending that a public employee who is involuntarily terminated, is constitutionally entitled to receive the cash value of unused vacation days, citing a Fourth Department decision, Clift v City of Syracuse, 45 AD2d 596 in support of his theory.

In Clift, the Appellate Division, Fourth Department. said that if the employer discharges an employee without having either given him the opportunity to use the vacation he has earned, or in the alternative, compensating him with its monetary value, it transgresses the due process requirements of both the New York State and United States Constitutions and it should not be permitted to do so.

The Third Department, however, decided that Clift has never been interpreted as meaning that a public employee who is involuntarily discharged is automatically entitled to a cash payment for his or her unused vacation. Rather, it viewed the holding as applying only where there are circumstances requiring special considerations.*

The Appellate Division rejected Gratto’s claim that his work responsibilities prevented him from using all of his leave credits for vacations. What was missing in Gratto’s situation? Evidence that a superior or supervisor induced him to forego any vacation time during that year for any reason or that he refrained from using vacation time the entire year because of noncontractual duties.

The Appellate Division affirmed the lower court’s ruling, holding that under the circumstances, Gratto was not entitled to the cash value of his 45 days of unused vacation when he was involuntarily separated.

This is similar to the general rule with respect to State workers subject to the State Civil Service Commission’s Attendance Rules for the Classified Service, 4 NYCRR 30.1. Section 30.1 states that an employee who is removed from State service as a result of disciplinary action, or who resigns after charges of incompetency or misconduct have been served, is not entitled to compensation for vacation credits.

What about a voluntary separation, i.e., the State employee is not involved in a disciplinary action when he or she resigns or retires? Section 30.1 provides that an appointing authority may require, as a condition for such payment that it be given at least two weeks notice prior to the last day of work.

* The special circumstances in Clift: the employee contended that he agreed to defer using his vacation credits based on promises made by his superior and was then involuntarily dismissed. Similarly in May v Ballston Spa CSD, 170 AD2D 920, the Third Department ruled in favor of the employee upon its finding that the employee was induced to forego vacation when his superiors assured him that he would be paid for his unused leave notwithstanding his involuntary separation as a result of a layoff.

Qualifying for reinstatement

Qualifying for reinstatement
Levy v Freeport UFSD, 275 A.D.2d 459, Motion for leave to appeal denied, 95 N.Y.2d 769

Carol L. Levy asked the Freeport Union Free School District to reinstate her to the position of Coordinator of English Language Arts/Reading.

Levy contended that she was qualified for reinstatement to the position because she was certified in reading. Conceding that Levy was certified in reading, the district declined to reinstate her to as the Coordinator because she was not certified in English.

Levy sued, seeking a court order compelling the district to reinstate her to the position.

The Appellate Division set out the general rule for reinstatement as follows:

Although a teacher seeking reinstatement need not be tenured in the area of the vacant position, the vacant position must be similar to the teacher’s former position and the teacher must be legally qualified to teach in the position sought.

Here, said the court, the record is clear: Levy is certified to teach reading, but not to teach English.



Under the circumstances, the court concluded, Levy did not have the appropriate certification for the position of English Language Arts/Reading Coordinator and dismissed her appeal.

Political activities by State officers and employees
NYS Ethics Commission

Periodically the New York State Ethics Commission reminds State workers of the State’s policy regarding political activities. Typically the Commission notes that:

1. State personnel may only engage in campaign activities on their own time;

2. State resources, including telephones, office supplies, photocopying and FAX machines and secretarial support may not be used for campaign purposes.

3. State personnel may not use their official position to solicit funds or coerce or influence co-workers for political purposes.

4. Campaign materials may not indicate or imply any State support or opposition to the candidate except that a candidate may refer to his or her State position in a campaign biography.

Section 107 of the Civil Service Law sets out a number of prohibitions against certain political activities by employees of the State and its political subdivision.

In addition, the political activities of State employees whose employment is Federally financed, in whole or in part, may be further restricted by the federal Hatch Act [53 Stat. 1147].

Essentially, the Hatch Act bars State and local officers and employees from being candidates for public office in a partisan election, using official authority or influence to interfere with or affect the results of an election or nomination directly or indirectly coerce contributions from subordinates in support of a political party or candidate.

Although a public officer or employee may lawfully seek the nomination for such public office, he or she must resign from his or her public employment upon accepting the nomination.

Employee conduct must be “in furtherance of the employee’s business” for it to be held liable for the employee’s negligent acts as Respondeat Superior

Employee conduct must be “in furtherance of the employee’s business” for it to be held liable for the employee’s negligent acts as Respondeat Superior
Perez v City of New York, 2010 NY Slip Op 09237, Decided on December 14, 2010, Appellate Division, Second Department

New York City police officer Javier Colon accidentally discharged his weapon in the course of unloading it while off-duty and engaged in "personal business," mortally wounding George Perez.

The City of New York and Colon were named as respondents in the lawsuit filed by Kristin Perez on behalf of Perez's estate seeking to recover damages for wrongful death.

Supreme Court granted the City’s motion to dismiss it from the action and denied Perez’s motion for summary judgment against the City on the issue of whether the Colon was acting within the scope of his employment at the time of the accident.

The Appellate Division affirmed the lower court’s ruling.

Pointing out that under the doctrine of respondeat superior, an employer is vicariously liable for an employee's tortious acts when those acts "were committed in furtherance of the employer's business and within the scope of employment," here, said the court, Colon's actions were undertaken “for wholly personal reasons” that were not job related. Accordingly, Colon’s conduct that resulted in the accident “cannot be said to fall within the scope of employment"

Finding that City met its prima facie burden of demonstrating that Colon was not acting within the scope of his employment as a police officer when he unloaded his service weapon and it accidentally discharged, the Appellate Division concluded that Colon’s actions were wholly personal in nature as “he was off duty, engaged in a social activity at his friend's apartment, where he planned to consume alcohol and, concerned about his comfort and the fact that he would consume alcohol, determined that unloading his firearm would be the best method to secure the weapon.”

As Perez failed to demonstrate the existence of a triable issue of fact as to whether Colon was acting within the scope of his employment at the time of the shooting, the Appellate Division decided that Supreme Court properly granted the City's motion for summary judgment dismissing the complaint insofar as asserted against it.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09237.htm

Random searches at work

Random searches at work
Morris v NY-NJ Port Authority, 290 AD2d 22

Robert Morris and the Port Authority Police Benevolent Association [PBA] sued the Port Authority in an effort to obtain a judicial declaration that random searches of the Port Authority police officers’ lockers were (1) unconstitutional and (2) a breach of a Memorandum of Agreement [MOA] between the PBA and the Authority.

The lockers in question are owned by the Authority and were being used by Authority police officers. A search on October 13, 1999 found radios belong to the Authority in the lockers of two officers in violation of its directive to pass the radios on to their shift replacements. The officers were disciplined for violating the directive.

The court dismissed the complaint citing the Appellate Division’s ruling in Moore v Constantine, 191 AD2d 769. Moore challenged his termination as a result of the search of his personal locker and “the seizure of evidence ... which was admitted in evidence” at a disciplinary hearing. The court said that the seizure of evidence from Moore’s locker did not violate his rights under the 4th Amendment.

According to the decision, in order to be entitled to assert a violation of the 4th Amendment, the individual must establish that he or she possessed a reasonable expectation of privacy as to the searched premises.

The right to privacy in the workplace asserted Moore’s situation, said the court, must bend to the superior governmental-societal interest of efficiency in the State Police. All public employees, especially police officers, have a diminished expectation of privacy in the work place.

As the U.S. Supreme Court said in O’Connor v Ortega, 480 US 709, when a public employer conducts such a search, the court must balance the invasion of the employees’ legitimate expectations of privacy against the government’s need for supervision, control, and the efficient operation of the workplace.

The court’s conclusion: “In light of the foregoing, the searches in question, whether they were consensual or not, did not violate plaintiffs’ constitutional rights, and therefore plaintiffs’ claim that they have a likelihood of success on this issue is unpersuasive.”

As to the PBA’s claim that the Authority violated provisions of the MOA, the court ruled that the question was for the arbitrator to determine, as it appears that this dispute is governed by the collective bargaining agreement.