The disability findings of the Social Security Administration does not trump the Retirement System's Medical Board's disability determination

A teacher [Petitioner] filed an Article 78 challenging the decision of the Medical Board of the Teachers' Retirement System of the City of New York [Board] denying his application for accidental disability retirement benefits.

The Appellate Division sustained the Board's finding that Petitioner was not disabled was not arbitrary and capricious, and was supported by some credible evidence. The court noted also that the Board had "examined and interviewed Petitioner."

In response to the Petitioner's claim that the Medical Board ignored his medical history, the Appellate Division explained that "resolution of conflicting evidence was for the Medical Board to resolve."

Further, said the court, the findings of the Social Security Administration with respect to Petitioner's alleged disability "was not dispositive of the Medical Board's disability determination," citing  Barden v New York City Employees' Retirement Sys., 291 AD2d 215 nor did the findings of the medical arbitrator, who examined Petitioner after the Medical Board made its determination, warrant Article 78 relief.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01256.htm

A statutory, constitutional or public policy prohibition bars the arbitration of a provision set out in a collective bargaining agreement

As the Court of Appeals held in Matter of City of Johnstown [Johnstown Police Benevolent Assn., 99 NY2d 273,  a court undertakes a two-prong analysis in determining whether a grievance between a public employer and an employer organization representing employee in a collective bargaining unit is arbitrable.

The first prong is the "may-they-arbitrate" prong where the court must determine if "there is any statutory, constitutional or public policy prohibition against arbitration."

If the disputed issue survives this first test, the court must then consider the second prong of the test and determine if the parties did, in fact, "agree-to-arbitrate" the particular disputed issue.

In this action the employer contended that arbitration of the dispute was prohibited "as the underlying [issue] was a job security provision* such that arbitration would violate public policy."

Noting that there are some exceptions to the "violation of public policy" prohibition, the Appellate Division, citing Burke v Bowen, 40 NY2d 264, opined that a job security provision "does not violate public policy and therefore is valid and enforceable, but only if the provision is 'explicit,' the CBA [collective bargaining agreement] extends for a 'reasonable period of time,' and the 'CBA was not negotiated in a period of a legislatively declared financial emergency between parties of unequal bargaining power.'" The court further explained that the "requirement that 'job security' clauses meet this stringent test derives from the notion that before a municipality bargains away its right to eliminate positions ..., the parties must explicitly agree that the municipality is doing so."

Deciding that the plain language of the disputed language in the CBA "merely provides for minimum staffing on particular shifts," the Appellate Division said it agreed with Supreme Court that this provision was not a job security provision and "the stringent test in Johnson City Professional Firefighters Local 921 (Village of Johnson City), 18 NY3d at 32, does not apply" in this instance.

The Appellate Division found that the disputed provision, although it does not expressly mention safety, "is nonetheless more akin to a condition of employment, such as the safety of officers, than to a job security provision."

Finding no statutory, constitutional or public policy prohibition against arbitration, the Appellate Division said that as "the parties have used language that clearly manifests an intent to exclude" this subject from arbitration, this grievance falls "within the scope of [the CBA's] broad arbitration clause" and Supreme Court properly denied Employer's petition seeking a stay of arbitration."

* A job security provision insures that, at least for the duration of the agreement, the employee "need not fear being put out of a job"

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_02218.htm

Workers’ Compensation Board adds COVID-19 Virus as a serious health condition for the purposes of Paid Family Leave

The Workers’ Compensation Board added COVID-19 Virus as a serious health condition for the purposes of Paid Family Leave by means of its "Emergency Rule Making" powers.

The Emergency Rule, I.D. No. WCB-15-20-00007-E [Filing No. 250] was filed on March 27, 2020 and states that this amendment is adopted as an emergency measure because the Board wants to ensure there are not unnecessary disputes regarding Paid Family Leave due to the outbreak of COVID-19 by clarifying that COVID-19 should be considered an serious health condition for the purposes of family leave. 

The text of rule and any required statements and analyses may be obtained from Heather MacMaster, Workers’ Compensation Board, 328 State Street, Schenectady, NY 12305, (518) 486-9564, email: regulations@wcb.ny.gov. 

The emergency adoption took effect immediately upon filing and provides benefits for employees who are caring for their family member.

Educator ineligible for unemployment insurance benefits between semesters after being assured of continued employment for the next semester

§590(10) of New York State's Labor Law provides that "professionals who are employed by educational institutions are precluded from receiving unemployment insurance benefits during the period between two successive academic periods if they have received a reasonable assurance of continued employment."

A part-time adjunct instructor [Claimant] at community college [Employer], received a letter informing him that it had scheduled him to teach during the fall semester, noting that the schedule was "dependent on anticipated student enrollment." The letter also advised Claimant that "[i]f for any reason your course(s) has to be eliminated, you will be notified by the Department Chair."

In June Claimant filed an application for unemployment insurance benefits.* The Department of Labor issued an initial determination finding that Claimant was ineligible to receive benefits because Employer had informed him that continuing work was available during the next academic year. Ultimately the Unemployment Insurance Appeal Board reversed this decision and found that Claimant was entitled to receive benefits because Employer "had not provided [Claimant] with a reasonable assurance of continued employment." Employer appealed the Board's ruling.

The Appellate Division noted that record indicated that Claimant taught three courses, consisting of nine credit hours, for the spring semester and earned approximately $10,766.79, an amount determined by the collective bargaining agreement in effect between the Employer and Claimant's union and that during the Spring semester Employer posted its fall course schedule online, listing Claimant as again being the instructor for three courses, also totaling nine credit hours.

Finding that the record showed that Claimant received a reasonable assurance of continued employment for the fall semester sufficient to show that that he was ineligible to receive unemployment insurance benefits, the Appellate Division ruled that the  Board's decision "must be reversed"

* In completing a Department of Labor questionnaire, in response to the question "[h]ave you been informed by the educational institution shown above that you will or may be working for them on a regular or substitute basis following the academic break," Claimant answered "yes," indicated that the offered position was that of adjunct instructor, that the dates of employment were from August to December and that he would be compensated at the "same rate of pay from [the] previous term."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_02229.htm

Employee found guilty of violating New York City's ethics rules fined $20,000

The New York City Conflicts of Interest Board determined Plaintiff's teaching at the entity when he was scheduled to be working at DOE involved a conflict of interest and found him guilty of violating New York City's ethics rules. The penalty imposed: a fine in the amount of $20,000.

Plaintiff brought an Article 78 action challenging the Board's determination and the fine it imposed. The Appellate Division unanimously confirmed the Board's ruling and dismissed Plaintiff 's Article 78 petition.

Finding that there was no basis to disturb the credibility determinations of the Administrative Law Judge, the Appellate Division said that substantial evidence supported the Board's determination that Plaintiff's actions violated New York City Charter §§2604(b)(2) and 2604(a)(1)(b).

Addressing the Board's imposing a $20,000 penalty on Plaintiff, the Appellate Division said that the penalty imposed "does not shock one's sense of fairness in light of the egregiousness of [Plaintiff's] conduct," citing Bolt v New York City Department of Education, 30 NY3d 1065.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_02163.htm