Crediting prior public service upon reemployment by a public employer

Crediting prior public service upon reemployment by a public employer

Cherniak v Office of Court Administration, 269 A.D.2d 680

From time to time an individual will claim that he or she should be given credit for certain benefits, typically for the purpose of determining salary or member service in a retirement system, based on his or her prior service with another public employer. A claim for “service credit for salary” based on prior state service was the basic issue considered by the Appellate Division in the Cherniak case.

Samuel A. Cherniak, then an employee of the Unified Court System [OCA], accepted an appointment as an Assistant Attorney-General [AAG] with the State Law Department and served as an AAG until October 1995. In early 1998 OCA appointed him to the position of Court Attorney. OCA credited Cherniak with his OCA service prior to his employment as an AAG in setting his rate of compensation. However, said OCA, such credit upon reinstatement was allowed only for OCA service and it refused to give him any credit for his AAG service with the New York State Department of Law.

OCA gave Cherniak two reasons for it action. First, OCA’s rules allowed it to grant such credit upon reinstatement of former OCA employees. Second, the Comptroller’s policy allowed non-OCA prior State service to be given only to an employee who returned to public service within one year. Cherniak appealed, challenging the Comptroller’s interpretation of “continuous service” to mean a “break in service for salary determination” of one year or less.

Both the Section 37.8 of the Judiciary Law and Section 131.5 of the Civil Service Law allow for approving salary rates greater then the minimum of the salary grade for the position upon “reinstatement” for individuals having “continuous service.”

Was the Comptroller’s interpretation of the term “continuous service” reasonable?

The Appellate Division thought it was. Pointing out that purpose of these provisions is to encourage employees to remain in State service, the court said that “the Comptroller’s policy promotes that purpose by allowing salary credit for prior service where an employee returns to State service after a brief break in service, but not where there is a substantial break in service.”

Cherniak tried to persuade the Appellate Division that the Comptroller’s interpretation was irrational, contending that there was no particular reason for the Comptroller’s selection of one year as the limit for a break in service.

The court disagreed, holding that it was rational for the Comptroller to construe the statutory phrase “continuously occupying” a position as encompassing “a relatively brief break in service” -- one year -- while no rational construction of the phrase would encompass Cherniak’s 2 1/2 year break in service.

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Eligibility for overtime

Eligibility for overtime

Spradling v City of Tulsa, CA10, 95 F.3d 1492

The U.S. Circuit Court of Appeals for the Tenth Circuit has rejected a claim by district fire chiefs employed by Tulsa, Oklahoma, for overtime payments under the Fair Labor Standards Act [FLSA].

The district chiefs claimed that such payments were required by the FLSA. The circuit court disagreed, ruling that the chiefs were “bona fide executive, administrative, or professional employees” within the meaning of FLSA and therefore not subject to its overtime provisions. In other words, they were “exempt” employees.

In Alden v Maine, 527 U.S. 706, the U.S. Supreme Court held that the Eleventh Amendment bars state employees suing their state employer in federal court without the state’s consent.

However, in Alden the court noted an “important limitation” to the principle of sovereign immunity under the Eleventh Amendment -- such immunity does not cover “lesser entities” such as political subdivisions of a state.

In the words of the Supreme Court, “[t]he immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity that is not an arm of the State.”

The City of Tulsa case demonstrates that federal courts will continue to hear claims brought by public employees alleging violations of the Fair Labor Standards Act involving a political subdivision of a state that is not an “arm of the state.”

However, it could be argued that because sworn officers serving with a municipal police department are exercising “the police powers of the state,” their employer is “an arm of the state” and thus the municipality has Eleventh Amendment immunity from law suits in federal court.
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Individual’s “lack of remorse and refusal to take responsibility” for misconduct considered by the court in affirming hearing officer’s disciplinary determination

Individual’s “lack of remorse and refusal to take responsibility” for misconduct considered by the court in affirming hearing officer’s disciplinary determination

Cipollaro v New York City Dept. of Educ., 2011 NY Slip Op 03131, Appellate Division, First Department

Barbara Cipollaro was served with disciplinary charges pursuant to §3020-a of the Education Law by her employer, the New York City Department of Education, alleging that she had knowingly defrauded Department of $98,000 over a two-year period by enrolling two of her children in New York City public schools while she and her family lived in Westchester County.

The hearing officer found Cipollaro guilty of the charges and she was terminated from her position.

Cipollaro filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking a court order vacating hearing officer decision and the penalty imposed.

The Appellate Division ruled that there was no basis to disturb the Hearing Officer's determination. Significantly the court said that in view of Cipollaro’s “lack of remorse and failure to take responsibility for [her] actions, as well as the harm caused by her actions, the penalty of dismissal, even if there was an otherwise adequate performance record, cannot be said to shock the conscience” [of the court].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03131.htm

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Independent Contractors vs. Employees

Independent Contractors vs. Employees

Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/

Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

The line between who is and who is not an employee is often a blur. However, it is an important line to draw as it can have consequences. Non-employees are not protected under our employment laws and are often not eligible for employee benefits.

IRS Gets Class Conscious is an interesting April 2011 article from the ABA Journal which addresses some of these issues. Of significant note is that both the IRS and the DOL are cracking down on employee misclassification. So, employers beware!

Mitchell H. Rubinstein

Randall comments: The ABA Journal article refers to a “20-factor IRS” for guidance when classifying individuals as workers or independent contractors.

An employer must generally withhold income taxes; withhold and pay social security and Medicare taxes; and pay unemployment taxes on wages paid to an employee. An employer does not generally have to withhold or pay any taxes on payments to independent contractors.

To help determine whether an individual is an employee under the common-law rules, the IRS has identified the 20 factors set out below as guidelines in determining whether sufficient control is present to establish an employer-employee relationship.

These factors should be considered guidelines. Not every factor is applicable in every situation, and the degree of importance of each factor varies depending on the type of work and individual circumstances. However, all relevant factors are considered in making a determination, and no one factor is decisive.

The 20 factors indicating whether an individual is an employee or an independent contractor are:

1. Instructions. An employee must comply with instructions about when, where, and how to work. Even if no instructions are given, the control factor is present if the employer has the right to control how the work results are achieved.

2. Training. An employee may be trained to perform services in a particular manner. Independent contractors ordinarily use their own methods and receive no training from the purchasers of their services.

3. Integration. An employee's services are usually integrated into the business operations because the services are important to the success or continuation of the business. This shows that the employee is subject to direction and control.

4. Services rendered personally. An employee renders services personally. This shows that the employer is interested in the methods as well as the results.

5. Hiring assistants. An employee works for an employer who hires, supervises, and pays workers. An independent contractor can hire, supervise, and pay assistants under a contract that requires him or her to provide materials and labor and to be responsible only for the result.

6. Continuing relationship. An employee generally has a continuing relationship with an employer. A continuing relationship may exist even if work is performed at recurring although irregular intervals.

7. Set hours of work. An employee usually has set hours of work established by an employer. An independent contractor generally can set his or her own work hours.

8. Full-time required. An employee may be required to work or be available full-time. This indicates control by the employer. An independent contractor can work when and for whom he or she chooses.

9. Work done on premises. An employee usually works on the premises of an employer, or works on a route or at a location designated by an employer.

10. Order or sequence set. An employee may be required to perform services in the order or sequence set by an employer. This shows that the employee is subject to direction and control.

11. Reports. An employee may be required to submit reports to an employer. This shows that the employer maintains a degree of control.

12. Payments. An employee is generally paid by the hour, week, or month. An independent contractor is usually paid by the job or on straight commission.

13. Expenses. An employee's business and travel expenses are generally paid by an employer. This shows that the employee is subject to regulation and control.

14. Tools and materials. An employee is normally furnished significant tools, materials, and other equipment by an employer.

15. Investment. An independent contractor has a significant investment in the facilities he or she uses in performing services for someone else.

16. Profit or loss. An independent contractor can make a profit or suffer a loss.

17. Works for more than one person or firm. An independent contractor is generally free to provide his or her services to two or more unrelated persons or firms at the same time.

18. Offers services to general public. An independent contractor makes his or her services available to the general public.

19. Right to fire. An employee can be fired by an employer. An independent contractor cannot be fire so long as he or she produces a result that meets the specifications of the contract.

20. Right to quit. An employee can quit his or her job at any time without incurring liability. An independent contractor usually agrees to complete a specific job and is responsible for its satisfactory completion, or is legally obligated to make good for failure to complete it.

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Assignment of personnel

Assignment of personnel

Westchester Co. v Westchester Co. Correction Officers Benev. Asso., Inc., 269 AD2 528

Sometimes an arbitrator will make an award that sets out terms and conditions with respect to the assignment of personnel. In deciding Westchester, the Appellate Division identified some of the limitations on the authority of an arbitrator to require such placements or assignments.

A hearing was held to determine if Westchester County correction officer Elsie Vallespi should be reinstated from disability leave. Vallespi had been placed on such leave pursuant to Section 207-c of the General Municipal Law.

Vallespi was placed on Section 207-c leave after she alleged that she suffered “psychological ramifications” as a result of a “verbal assault” by a supervisor. She returned to her job a few months later but on the day she returned she “had incidental contact with the same supervisor” and, as a result, again went out on an extended disability leave.

The arbitrator decided that Vallespi could now be reinstated “without restriction”, provided that “she is assigned to (1) the Women’s Unit for the 3-11 pm shift; (2) [the supervisor] is assigned to another shift or to a different unit; and (3) for the first 30 days of [Vallespi’s] return, [the supervisor] is not to be assigned on overtime more than once to the same shift and unit as [Vallespi]”.

The county objected and filed an Article 75 petition seeking to vacate the arbitration award. The Appellate Division affirmed a lower court’s order modifying the arbitration award by striking the assignment limitations directed by the arbitrator.

Agreeing with the Supreme Court, the Appellate Division said that “the arbitrator lacked the authority to direct how and when the County could assign its correction officer personnel.” Imposing such conditions, said the court, violated a strong public policy.

The court held that the terms and conditions set by the arbitrator “usurped the authority of the Westchester Department of Correction to determine where and when to assign its correction officer personnel.”

Considering the need to manage and control of the County’s prison population, “it would be imprudent to allow a third-party such as an arbitrator to determine the placement of correction officers....”

Clearly here the court was influenced by the special and unique duties of correction officers and the responsibility of the county to maintain security of its prison population. In another situation, such as directing the assignment or placement of individuals not having such security responsibilities, the courts probably would confirm an arbitration award providing for the particular assignment of an individual.

The courts may apply the rationale set out in Westchester in cases involving arbitration awards affecting the assignment of teachers and other public employees having specializes duties or for which special qualifications have been established.

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