New York State Department of Civil Service - Policy Bulletin #16-01

New York State Department of Civil Service - Policy Bulletin #16-01

Separations and Leaves

N.B. The Rules of the New York State Civil Service Commission and the Regulations of the President of the Civil Service Commission, except as otherwise specified in any particular rule, apply to positions and employments in the classified service of the State of New York as the employer and positions and employments in the classified service of public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. Many local civil service commissions and county personnel officers have adopted similar provisions addressing separations and leaves of employees in the classified service of such jurisdictions.

Leaves of Absence Without Pay

THIS POLICY BULLETIN REPLACES POLICY BULLETIN #98-02, issued December 29, 1998.

This policy bulletin is intended to be a guide to agencies on the topic of leaves of absence without pay.

Leaves of Absence Generally

The purpose of any leave of absence without pay is to provide employees with their appropriate tenure protection, promotion rights, and layoff rights based upon the employee's status in that position. Employees may not have multiple simultaneous leaves from the same item/position. However, to completely preserve their rights, employees may be on leave from different positions in the same title, in the same or different jurisdictional classes.

Some types of leaves are termed "mandatory." Other leaves are termed "discretionary."

Mandatory leaves must be granted as required by Civil Service Law or rule or negotiated agreement, or Federal law, or State policy.

Discretionary leaves may be granted in accordance with the provisions set out in 4 NYCRR 5.2.

Usually a mandatory leave is granted when a permanent employee:

1. Is promoted or transferred to a position in which the employee must serve a probationary period:

   (a) In the competitive class is appointed in contingent permanent, temporary or provisional status to a position in the employee's agency.

   (b) In the non-competitive or labor class is appointed in contingent permanent status to a position in the employee's agency.

2. Is absent for a reason specified in the Family & Medical Leave Act.

3. Is absent for reasons specified in the Military Law. [An employee ordered to military service may be entitled to Military Leave with Pay for limited periods.] 

4, Is unable to perform the duties of the employee's position due to disability. [See Civil Service  Law §71, Workers' Compensation Leave and Civil Service Law §§72 and 73, Leave for ordinary disability. Such leaves are without pay although the employee may use accrued leave credits in order to remain of the payroll until such leave credits are exhausted.]

When an employee must be granted a leave in a situation governed both by a Civil Service Law, or rule and a negotiated agreement, and the identified limitations or length of leave required are different, the employee must be given the leave terms which provide the employee with the most protection,

[N.B. 4 NYCRR 26.3, "Rules applicable to employees in negotiating units," provides that "The provisions of these attendance rules, insofar as they apply to employees in the negotiating units established pursuant to Article 14 of the Civil Service Law [the Taylor Law], shall be continued; provided, however, that during periods of time when there is in effect an agreement between the State and an employee organization reached pursuant to the provisions of said Article 14, the provisions of such agreement and the provisions of such rules shall both be applicable. In the event the provisions of the agreement are different from the provisions of the attendance rules, the provisions of the agreement shall be controlling"(emphasis supplied). 4 NYCRR 29.1 and 29.2 address Leaves Without Pay for officers and employees designated Managerial or Confidential within the meaning of the Taylor Law and, presumably, officers and employees not so designated and not in a collective bargaining unit for the purposes of the Taylor Law. See  Attendance for Managerial/Confidential Employees in New York State Departments and Institutions.] 

Usually a discretionary leave is granted when a permanent employee who is not eligible for a mandatory leave:

1. Requests a leave because the employee accepted an appointment to a position in a different jurisdictional class.

2. Requests a leave because the employee accepted an appointment in another agency in temporary or provisional status.

3. Requests a leave for educational, parenting, or other personal reasons.

Basic Principles of Discretionary Leaves

A leave is discretionary if it is not mandatory.

4 NYCRR 5.2 permits an appointing authority to grant a discretionary leave for two years. At the end of this initial two years permission to extend such leave must be granted by the Civil Service Commission.

In some cases the courts have viewed a discretionary leave as being essentially a "contract" between an employee and his/her appointing authority. For the specified period the employee is entitled to be absent and, at the end of that period, to return. The terms of these contracts may only be changed by mutual consent, with the exception that employees on discretionary leave to serve in another position in the State service must be restored upon request.

A leave of absence does not prohibit the agency from dealing with the position in the normal course of business, e.g., filling the position, abolishing the position or assigning the position to a different location.

Employees may not be on mandatory leave and discretionary leave simultaneously from the same position.

Where an extension or further extension is not granted, the employee must return to the former position (i.e., title and status) and serve for six months before the agency may grant them a "new" discretionary leave, which does not require Commission approval.

Rights to Return to a “Hold Item”

Although for the sake of record-keeping a position (called a "hold item") is always identified, and usually the employee returns to it, management's right to assign and reassign staff among available positions overrides any right to a specific position, or even a location. The employee has the right to return to a position in their former title, jurisdictional class and appointment status.

When restoration to a hold occurs the agency designates the specific position. Agencies may change designated hold items and may reassign hold items to different locations at any time. However, some negotiated agreements may provide rights and limitations when employees return (for example see CSEA, I.S.U. Article 12). Further, agencies may not arbitrarily or capriciously reassign employees, nor do so punitively.

An employee who refuses to return to a hold item which was moved to a different geographic location (i.e., different county) is considered to have declined a reassignment, and is eligible for reemployment list status, but the employee is not eligible for bumping or retreat.

An employee granted a mandatory leave while serving probation may request restoration to a hold item prior to end of the leave, and the agency must restore the employee. This right to return is only provided under rule and contract to an employee granted mandatory leave while serving probation (4 NYCRR 4.5).

An employee who has been temporarily or provisionally appointed to another competitive class position, within the same agency, must be restored upon request (4 NYCRR 4.10).

A contingent permanent employee who is affected by the return of a prior permanent incumbent must be offered restoration with permanent status to the hold item required for this purpose by 4 NYCRR  4.11 and 4 NYCRR 4.12 provided the employee was originally appointed to the hold item in permanent status. If however, the employee was originally appointed to the hold item in contingent permanent status, and the agency made subsequent contingent permanent appointments to the same position, a comparison of the seniority dates (seniority dates are determined in accord with §80, or §80-a of the Civil Service Law) of all the contingent permanent appointees is required. Only if the returning former contingent permanent employee is the most senior may the employee return. If the one prior permanent incumbent has already returned, the contingent permanent employee may not return, regardless of seniority.

A contingent permanent employee who has completed probation may not voluntarily return to a hold item in the absence of a return of incumbent. Complete policy information regarding contingent permanent appointments and leaves can be found at SPMM 1810.

Appointments to Positions in the Non-competitive Class

A non-competitive phi designation on an employee's current position or the position to which the employee is appointed has no effect on the leave policies herein. See Advisory Memorandum #02-03 for more information.

Non-competitive class employees appointed pursuant to Civil Service Law §55-b/c must be given a leave when appointed to ANY OTHER §55-b/c position. See Advisory Memorandum #02-03 and Policy Bulletin #11-01 for more information.

Appointments to Positions in the Exempt Class

Exempt class employees may be granted a discretionary leave of absence. However, the employee should be informed that the leave does not give the employee the right to return or to hold the position for any period of time. The exempt class employee continues to serve at will, albeit while on leave.

Pending Commission Review

Newly classified positions are competitive class positions until the Commission and Governor act to place them in another jurisdictional class (with the exception of titles the Commission has designated that "all" positions in the title are in a particular jurisdictional class, and, therefore a newly classified position is immediately placed in that jurisdictional class). After the Commission acts, the position is considered "pending non-competitive," "pending exempt," or "pending labor" as a shorthand way of keeping track of the status. But, in fact, the jurisdictional class does not change from competitive until the entire administrative process is complete and the resolution is filed with the Department of State. Therefore, a permanent competitive class employee appointed to such a pending position, or an incumbent whose position has been reclassified to a pending position, should be considered as having received an appointment to a competitive class position for the purposes of leave rights under the provisions of 4 NYCRR 10.

When an exempt class position becomes vacant it is reviewed by the Commission. During the review period, only appointments in temporary status are permitted. A permanent competitive class or non-competitive class employee appointed on a temporary basis to such a position is not covered by 4 NYCRR 4.10 or negotiated agreements and therefore any leave granted must be discretionary.

Summary of Mandatory Leaves of Absence by Type of Appointment

Depending upon the type of appointment that a permanent employee receives, various negotiated agreements and the Civil Service rules may require a leave of absence be provided from the current position. The following tables summarize this department's interpretations of the various rules, laws and negotiated agreements which mandate a leave of absence be provided when certain appointments occur. The compilation of the tables is intended to provide a complete catalog of the conditions under which mandatory leaves are provided. It is recognized that there is an overlap between the various authorities under which leaves are mandated. Where such overlaps occur, the leave which provides the greatest benefit to the employee, either in terms of duration or limitations, should be applied.

The rules refer to specific sections of the Classified Service Rules. The negotiated agreements can be found on the GOER website at  https://www.goer.ny.gov/Labor_Relations/Contracts/.

Promotion is defined as:

The appointment of a permanent competitive, non-competitive or labor class employee to a competitive class position via appointment from a promotion or transition list; OR

The appointment of a permanent non-competitive or labor class employee to a higher grade position in the same jurisdictional classification.

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The Department of Civil Service may update the tables on the online version of this Memorandum to reflect changes resulting from future negotiations or reinterpretation. When updated, the previous tables will be chronicled in the Staffing Division policy files.

The online version of this Policy Bulletin, including the tables, is posted on the Internet at: 
https://www.cs.ny.gov/ssd/Manuals/SPMM/2200SeparationsLeaves/Policy%20Bulletin%2016-01.htm

A school district’s decision to abolish a position and have a BOCES assume performing the duties of the abolished position constitutes a “transfer of a function” within the meaning of Civil Service Law §70(2).

A school district’s decision to abolish a position in the classified service and have a BOCES assume performing  the duties of the abolished position constitutes a “transfer of a function” within the meaning of Civil Service Law §70(2).

However, said the Appellate Division, petitioner’s “data management services” job duties in the position abolished by the school district were assumed by existing staff members of BOCES. Thus, said the court, petitioner failed to establish a clear right to the relief sought because she was not a "necessary employee" within the meaning of §70.2.

The court noted §70(2) provides, in relevant part that "Upon the transfer of a function . . . from one department or agency of the state to another department or agency of the state, . . . provision shall be made for the transfer of necessary officers and employees who are substantially engaged in the performance of the function to be transferred."Accordingly, said the Appellate Division, "[a]n employee is eligible for a a transfer pursuant to Civil Service Law §70(2) only if he or she is a 'necessary ... employee' - i.e., if the agency or the department to which his or her duties are being transferred does not have sufficient staff at the time of the transfer to perform the duties being transferred.

N.B. Had the "transfer of function" involved duties performed by an employee in the unclassified service, the provisions of Education Law §3014-a would control. §3014-a addresses the rights of educators in the event a BOCES takes over a program formerly operated by a school district or by a county vocational education and extension board.

Decision cited as 2016 NY Slip Op 08139, Appellate Division, Third Department

Substantiated, nonpretextual complaints of petitioner's subordinates comprise a legitimate, nondiscriminatory, nonretaliatory reason for terminating supervisor

Substantiated, nonpretextual complaints of petitioner's subordinates comprise a legitimate, nondiscriminatory, nonretaliatory reason for terminating supervisor

The termination of petitioner's employment did not violate a constitutional or statutory provision or a policy established by decisional law where employer's investigation reveled that the petitioner “favored employees of his own national origin, including his brother-in-law, giving them more favorable schedules and faster promotions, and discriminated against women and persons not of his own national origin.”

Reported as 2016 NY Slip Op 08010, Appellate Division, First Department

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Evaluating claims seeking to recover damages for alleged defamation and maintaining a hostile work environment

Evaluating claims seeking to recover damages for alleged defamation and maintaining a hostile work environment

In this action to recover damages for defamation and a hostile work environment in violation of Executive Law §296, the plaintiff, Pall, appealed an order of the Supreme Court granting the Roosevelt Union Free School District’s motion to dismiss her complaint.

The Appellate Division affirmed the Supreme Court’s ruling, explaining:

1. "To state a cause of action to recover damages for defamation, a plaintiff must allege that the defendant published a false statement, without privilege or authorization, to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se."

2. "Since falsity is a necessary element of a defamation cause of action and only facts' are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action.'" and

3. "The dispositive inquiry . . . is whether a reasonable [reader] could have concluded that [the statement was] conveying facts about the [Pall]."

The Appellate Division ruled that “accepting the allegations in the complaint as true, affording [Pall] the benefit of every favorable inference, and considering the evidentiary material submitted by the parties,” Pall did not have a cause of action to recover damages for defamation as the context of the alleged statement was such that a reasonable reader would have concluded that he or she was reading an opinion, and not a fact, about Pall.

Addressing Pall’s claims of the existence of “a hostile work environment in violation of Executive Law §296,” the court held that her allegations “fell short of alleging that the workplace was " permeated with discriminatory intimidation, ridicule, and insult . . . that [was] sufficiently severe or pervasive to alter the conditions of . . . employment and create an abusive working environment.'"

Pall v Roosevelt Union Free Sch. Dist., 2016 NY Slip Op 07937, Appellate Division, Second Department

Rights of employees transferred to another jurisdiction pursuant to §70(2) of the Civil Service Law.

Rights of employees transferred to another jurisdiction pursuant to §70(2) of the Civil Service Law.

The Village of East Syracuse dissolved its police department and police officers who were formerly employed by the Village were transferred to the Town of DeWitt Police Department and placed at a salary step that was at a lower seniority level than warranted by those police officers length of service with the Village. Supreme Court concluded that the Town of DeWitthad acted arbitrarily and capriciously and directed it to award each former Village police officer seniority credit for each year of service as a Village police officer.

The Appellate Division agreed, explaining that Supreme Court had properly concluded that §70(2) of the Civil Service Law “requires [the Town] to award [the former Village police officers] full seniority credit for the time that they served as police officers in the Village.” In pertinent part, said the court, the statute mandates that "[o]fficers and employees transferred to another governmental jurisdiction pursuant to the provisions of this subdivision shall be entitled to full seniority credit for all purposes for service rendered prior to such transfer in the governmental jurisdiction from which transfer is made."

[See Civil Service Law §45 with respect to the status of employees upon acquisition of a private institution or enterprise by a New York governmental entity.] 

Barhite v Town of DeWitt, 2016 NY Slip Op 07782, Appellate Division, Fourth Department