Social Media - its use by employers in pre-employment, employment and post-employment situations

Social Media - its use by employers in pre-employment, employment and post-employment situations
Source: Article by Eileen Morgan Johnson, Esq. of Whiteford, Taylor Preston [emjohnson@wtplaw.com ]. Copyright 2010 Eileen Morgan Johnson, All rights reserved
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Part I - Social Media and Pre-employment Situations

Part II - Social Media and the Workplace

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Part I

The use of social media in pre-employment situations

Pre-employment screening

Employers are taking advantage of the free information on social media websites and communication tools to screen applicants or to perform pre-offer due diligence on successful applicants. It's not just people in their 20's and 30's who have online profiles and the use of social media by human resource professionals is not a passing fad.

There are a variety of resources that can be consulted such as LinkedIn®, MySpace™ and Facebook. Users of these three sites create an individual profile that can include information about their work history, extracurricular activities, and contacts. Other sites such as Twitter™ and YouTube can also yield information on applicants that might be valuable in making a decision to extend or withhold an offer of employment. For those employers who are unsure about using social media sites, a simple search using Google™ or some other search engine can also yield potentially interesting information.

What are employers looking for? Social media profiles can provide a lot of valuable information. While an employer should not rely solely on these sites to verify information on employment applications, they can be used to discredit applicants or to provide another view of the person behind the resume or online application. Online profiles can provide information on the person's:

Professional credentials
Career objectives
Maturity and judgment
Abuse of drugs or alcohol
Current employment status

Red flags

A June 2009 CareerBuilder survey of 2,600 hiring managers found that 45% of them use social media in the hiring process. That was double the number of hiring managers that reported such use in 2008. What's more, 11% planned to start using social media for prescreening. Eighteen percent or almost one in five hiring managers surveyed reported finding information online that encouraged them to hire candidates:

Profile - good feel for personality and "fit"- 50%
Profile supported professional qualifications - 39%
Candidate was creative - 38%
Solid communication skills - 35%
Candidate well rounded - 33%
Good references posted by others - 19%
Candidate received awards - 15%

However, twice as many (35%) hiring managers reported finding information that led them to not hire a candidate, including:
Inappropriate photos or postings - 53%
Postings on drinking or drug use - 44%
Bad-mouthing previous employer, co-workers or clients - 35%
Poor communication skills - 29%
Discriminatory comments - 26%
Lied about qualifications - 24%
Shared confidential information from previous employer - 20%

Potential pitfalls of screening

Screening with social media has some drawbacks. It can provide too much information about job applicants, including some information that cannot be considered in the employment decision. Some online content can be questionable in terms of its origin or truthfulness. Moreover, some employers are concerned about invading applicants' privacy.

Too much information

Certain information that can be found in an applicant's online profile cannot be used as the basis for an employment decision. These include information on the applicant's race, religion, national origin, age, pregnancy status, marital status, disability, sexual orientation (some state and local jurisdictions), gender expression or identity (some state and local jurisdictions) and genetic information. While it is best to avoid obtaining or even seeing this information, it is often prominently displayed on social networking profiles.

A potential solution is to assign one person to review the social media sites who is not part of the decision making process. That person should filter out any information regarding membership in a protected class and only pass on information that may be considered in the hiring process. The most fundamental way to protect against discrimination claims in using information gleaned from social media sites in the employment decision process is consistency. Employers should keep records of information reviewed and used in any employment decision.

Quality of information

Online information is not always reliable. The first rule is to make sure that the person whose profile you are viewing is actually your job applicant. It is not unusual for people to have similar names or even the same name. If you have confirmed the identity of the applicant, keep in mind that there is a possibility that not all of the information in the profile is correct. Profile information might have been deliberately falsified by the applicant or a friend or significant other with access to the profile login information.

Employers should also recognize that any site provides a limited picture of the individual. Remember the intended audience. On sites like LinkedIn, the intended audience is other professionals. However, on Facebook and MySpace, profiles are often developed for close friends and family. And some people enjoy creating a new persona for their online life, one that has no relationship to who they are in real life.

Invasion of privacy

Employers have little risk that viewing applicants' profiles, blogs or other online postings will give rise to invasion of privacy claims. Users of social networking sites usually have the option to set privacy settings on their personal pages. Their personal pages can be available to any user of the network, or can be restricted to only individuals authorized by the user. A critical question to ask in evaluating an invasion of privacy claim is whether there was a reasonable expectation of privacy. To avoid the potential for liability, employers should avoid attempts at circumventing the privacy settings put in place by users. Only view information that is readily accessible and intended for public viewing.

Google™ and other search engines

In a recent Monster.com report, 77% of employers surveyed reported performing a "Google" search on job applicants. Google is popular for the amount of information that can be discovered and the ease of use. In addition to the concern noted above that a Google search might return too much information, there are additional concerns about the quality of the information retrieved. The breadth of information that a Google search can produce has its own drawbacks including difficulty in identifying sources of search results.

As of now, employers are unlikely to incur liability based on Google searches of job applicants. To further protect against liability, employers should be consistent in their search practices, recognize the limits of online searches, and be sure the information they find actually relates to their applicants.

Current law on reviewing social media sites

There are no court decisions yet imposing liability for an employer's review of a social networking site in the pre-employment context. This is not a guarantee that such liability will not be imposed in the future. For now, the potential for liability is minimal in the absence of misconduct or discrimination by the employer. The potential for liability can be further reduced by:

- Being consistent in prescreening all applicants for certain positions or only those already selected for interviews
- Having someone other than the decision maker filter out protected class information if possible
- Keeping records of the basis for each employment decision
- Not circumventing privacy settings established on applicants' networking sites

If employers have any questions about whether information found through pre-employment screening should be used in the decision making process, they should consult employment counsel before using that information.

Part II - Social Media in the Workplace

The use of social media in employment and post-employment situations.

Social media is changing communications between employers and employees and among co-workers.

Employee communications

The employee newsletter is out and the company Facebook group is in. Employees of the 21st century want a different relationship with their employer and co-workers than that of prior generations. They are used to receiving information that is current and relevant to them, and they expect the same ability to preselect and customize the information they receive in the workplace. Employees want to be able to ask questions and provide feedback to management. With more employees teleworking or working from multiple locations, they want the ability to communicate with their co-workers. Today's workers like to create their own news in their personal lives and share it with others electronically, and they expect to be able to do the same with their work lives.

The International Association of Business Communicators Research Foundation & Bucks Consultants surveyed 1,500 employers in June 2009. An astonishing 97% of the employers said that they frequently use social media to communicate with their employees. Of these, 19% reported occasional use, with only 1% reporting that they used social media rarely or never. Whether by company emails, an intranet website, Facebook group or other tools, clearly social media have become critical to employer/employee communications.

Social media usage policies

Just as employers adopted Internet and computer use policies in the 1990's, now they are developing social media usage policies. These policies can be part of the company's electronic communications usage policy or a stand-alone policy. The key to an effective social media usage policy is frequent adaptation to new technologies and programs, new legal requirements related to both technology and the workplace, and communication with employees.

Distractions and productivity

Employers worry about lost employee productivity due to the distractions of social media in the workplace. The temptations to communicate with their friends and family members are everywhere. Text messaging, cell phones and instant messaging provide near instantaneous dialogue which can be more interesting than the daily work assignments.

Twitter feeds and other alerts are used to notify blog followers when a new posting has been added. Younger workers are used to multitasking. They made their way through high school and college with laptops, iPods, and cell phones, and can write a paper, text a friend, and download music simultaneously while watching television and talking with friends. They want their work lives to function the same way their personal lives do with constant stimulation and communication.

Do employers have the right to force their employees to focus on the task at hand and not use social media while at work? The courts are still working that issue out, but at least one federal court has suggested that employers might have the right to prevent employees from accessing blogs while at work. Nickolas v. Fletcher, 2007 U.S. Dist. Lexis 23843 (E.D. Ky. 2007).

Monitoring

An employer might want to monitor its employees' online conduct while at work. The argument goes something like this: "The employee is on my time, in my facility, and using my computer equipment. Why shouldn't I be able to monitor what's going on?"

Any monitoring should be done with care. In Pietrylo v. Hillstone Restaurant Group, 2008 WL 6085437 (D.N.J. 2008), a Newark jury found that the employer violated the federal Stored Communications Act by secretly monitoring employees' postings on a private password-protected Internet chat room. This followed an earlier case, Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), where the court also held that secret monitoring by an employer of a password protected website visited by an employee while at work violated the federal Stored Communications Act.

However, earlier this year, the U.S. Supreme Court unanimously held that a public employer's review of an employee's text messages on an employer-issued device was a reasonable search under the Fourth Amendment. City of Ontario v. Quon, No. 08-1332, 560 U.S. ___ (2010). This case involved the use of a pager issued to the employee by the employer. The employer authorized a set number of text messages per month and allowed employees to pay for any overage. Employees were not prohibited from using the pager to send and receive personal text messages. The employer noticed that one employee had an excessive number of text messages and asked its service provider for copies of the text messages from that employee's phone. It found messages to the employee's wife and girlfriend. The employee claimed that his privacy had been violated. The lower court had held that the service provider violated the Stored Communications Act when it provided the employee's text messages to the employer. The Supreme Court reversed, holding that the employer had a right to see text messages sent and received on the employer's pager. While this case involved a public employer (and courts have typically allowed greater employer control of public employees), the court clearly stated that employees do not have an expectation of privacy when using equipment provided by the employer.

Other Worries

Employers have more serious potential issues than lost productivity to worry about. Social media tools present an easy method of accessing and communicating information. This can include the unauthorized disclosure of confidential information. While the concerns about unauthorized disclosure using social media tools are similar to unauthorized disclosure in more traditional ways, now the disclosure is at the click of a mouse to multiple recipients. Unauthorized disclosure can include the business plans and information of clients as well as those of the employer.

Unfortunately, social media tools can also be used to harass co-workers. What might be a harmless exchange of jokes or photos between friends can take on a new life when they are spread around the office. The seemingly innocent friend request on Facebook from a co-worker can take on new meaning. How does a female employee respond to a "friend" request from her male supervisor?

The technology behind social media presents another new challenge to employers, the inability to effectively respond to misinformation. A fleeting complaint lingers forever and can be accessed or rebroadcast by other employees or those outside of the company. Information remains in cyberspace indefinitely. The employer's response to misinformation or even a later retraction by the defaming party is unlikely to reach all who received the initial communication. Any communication issued by an employee is seemingly valid, even when the employee is a self-appointed company "spokesperson."

Employers might consider charging employees who misuse social media at the workplace with using company equipment inappropriately and follow appropriate disciplinary measures. The social media usage policy should provide for discipline for abuse of the policy and explicitly state that social media may not be used to violate other employer policies, including harassment and non-discrimination policies.

Internal investigations

In a June 2009 survey, Proofpoint asked US employers to report on internal investigations at their companies in the past 12 months. The results of the survey show that employers do have a reason to be concerned about leaks of confidential or proprietary information. Employers reported conducting investigations of leaks by:

Email - 43%
Blog or message board - 18%
Video - 18%
Facebook and LinkedIn - 17%
Twitter or SMS texts - 13%

The same employers also reported on the results of their investigations, with a substantial number finding violations of company policies. The rates of employees disciplined or terminated for policy violations were:

Email - 31% terminated
Blog or message board - 17% disciplined, 9% terminated
Video - 15% disciplined, 8% terminated
Social networks - 8% terminated
Twitter/SMS texts - no reported actions

Employer responses

Employers can take a number of measures to reduce the problems that can arise from the use or misuse of social media. As a first step, employers should remind their employees that they have no expectation of privacy when using the employer's electronic equipment or network. This includes employer supplied smart phones, voice mail, and email. Next, employers should review and update as necessary their Internet usage policies to include the use of social media and clearly state what employee actions will result in discipline or even termination.

To address the potential misuse of social media, a social media usage policy should prohibit the use of the employer's name by employees outside of official company communications. The policy also should discipline employees for posting any negative statements about the employer or any derogatory comments about the employee's co-workers or supervisors.

Whether it is two pizza parlor employees abusing food for their YouTube video or anonymous misstatements on a blog about a company's products or services, an employer's reputation can be easily and speedily damaged through the misuse of social media tools. Postings favoring the employer's competitors or slamming its customers, or, in the case of associations, its members, can also be detrimental and the intentional disclosure of confidential employer information can be devastating.

Employer social media policies should prohibit:
Disclosure of confidential employer information
Discrimination against or harassment of co-workers
Using the employer's trademarks Infringing the intellectual property rights of others
Making statements adverse to the employer's business interests or reputation
Criticism of customers or business partners
Statements supporting competitors
Obscenity

Legal limitations

Multijurisdictional employers may face inconsistent laws when trying to establish uniform policies for their employees. Some states prohibit an employer from acting with respect to employee activity that is not related to the employer or is not on working time. In addition, there are laws that protect concerted activity by employees - the protected right of employees to discuss common issues related to the workplace (these are the laws protecting labor unions). There are also laws that protect complaints related to the violation of workplace laws such as state and federal whistleblower laws. However, employees do not have a right to engage in activity injurious to the employer that does not fall within these limited exceptions. Employers should consult with counsel before establishing policies or taking steps to address the misuse of social media by their employees.

Off- duty conduct

Employers can tread over the line when they attempt to discipline employees for their off-duty conduct. Many states have off-duty conduct laws that prohibit employers from basing employment decisions on legal activities of employees outside of work time. Employers need to be aware of the state laws applicable to each of the jurisdictions where their employees are located to avoid violating these laws.

Postings complaining about the employee's work, the employer, supervisors, or co-workers or postings critical of the employer's product or service can be grounds for disciplinary action up to and including termination. For example, a teacher who was fired for an inappropriate MySpace page sued the employer and lost in Spanierman v. Hughes, 576 F. Supp. 2d 292 (D. Conn. 2008). Even when the conduct does not rise to the level of disciplinary action, it can cause the employer to question the employee's maturity or judgment.

Post-employment

Former employees who left on their own or maintain a positive relationship with their former employer, supervisor and co-workers rarely raise concerns about the potential for harm to the employer through their online activities. However, the disgruntled former employee is a different story. Just as they are not concerned about the bridges they burn, these employees are not worried about the potential consequences of the statements they publish online or their tweets about their former employer, supervisor and even co-workers. The potential for a defamation claim against the former employee can be great. Alas, the opportunity to collect damages is not great.

Some employers have a real concern that confidential information will be released by disgruntled former employees. Requiring employees with access to confidential information, as a condition of employment, to sign a confidentiality and nondisclosure agreement which remains in effect following the termination of the employment relationship is one way to address this potential problem.

Social media non-compete

Employers who sanction employee blogs, Facebook groups, Twitter accounts, and other means of communicating through social media often do not think through the consequences of setting up these accounts with one employee as the face of the company.

What happens when the employee who has been regularly posting blogs on behalf of the company decides to leave? Who owns the profile? Who owns the content? More importantly, who owns the followers? Even if the now former employee does not object to the employer taking over his blog, what if the employer does not have the login name and password?

To address these issues, savvy employers are having their employees sign social media non-competition agreements. Under these social media non-competes, the profile, content and followers of a blog or other communication tool belong to the employer. These agreements are more akin to a non-solicitation agreement than a traditional non-compete.

They are difficult (if not impossible) to enforce but they clearly define the intent of the parties if the employer sees litigation (or alternative dispute resolution) as a necessary step to protect its brand or marketing position.

Conclusion

The now widespread use of social media in and outside of the workplace is not the end of the world as we know it. True, the situations employers can face are different, and small problems can very quickly magnify and multiply. But the sensible employer will respond appropriately, working with its employees to identify appropriate social media usage policies and exploiting the communication benefits that social media can bring to the workplace of the 21st century.

Eileen Morgan Johnson
Counsel
Whiteford, Taylor & Preston, L.L.P.
3190 Fairview Park Drive, Suite 300 Falls Church, VA 22042
t: 703-280-9271 f: 703-280-8947 m: 202-615-0894
emjohnson@wtplaw.com Bio vCard http://www.wtplaw.com/

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N.B. A relevant item, NY Ethics Committees Tackle Social Media Mining has been posted on Nicole Black's Law Blog Sui Generis--a New York law blog . It addresses the issue of the ethics of attorneys using social media and cites the New York City Bar’s opinion (Formal Opinion 2010-2) Ms. Black can be reached at nblack@nicoleblackesq.com .

NYPPL

As New York arbitration law is in accord with the policies of the Federal Arbitration Act, New York law governs federal court review of New York award

As New York arbitration law is in accord with the policies of the Federal Arbitration Act, New York law governs federal court review of New York award
County of Nassau v Chase, United States Court of Appeals, Second Circuit, No. 09-3643-cv, Summary Order

Chase and other parties appealed a federal district court's granting Nassau County’s motion to confirm an arbitration award.

As the contract between the parties provided that “any appeal from an arbitration award is to be governed exclusively by New York state law,” the Circuit Court said that this provision “must be honored by the courts unless the state law conflicts with federal law.”

As, said the court, “New York law accords with the policies of the [Federal Arbitration Act] (in favor of binding arbitration), federal law does not preempt New York state law here. New York state law therefore governs our review of this arbitration award.*

The Circuit Court then set out the following basics with respect to New York State Law concerning arbitration:

1. The appropriate standard is whether the arbitration award "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power," citing N.Y.C. Transit Auth. v. Transp. Workers' Union of Am., Local 100, AFL-CIO, 6 N.Y.3d 332. [Zorc and Chase, said the court, fail to satisfy this standard.]

2. “Arbitrators are not bound by principles of substantive law or legal procedure: An arbitrator "may do justice as he sees it, applying his own sense of law and equity to the facts as he finds them to be and making an award reflecting the spirit rather than the letter of the agreement," citing Silverman v. Benmor Coats, Inc., 61 N.Y.2d 299

3. Misapplication of law and errors of fact are insufficient to overturn an award. Motor Vehicle Accident Indemnification Corp. v. Aetna Cas. & Surety Co., 89 N.Y.2d 214.
In this instance the Circuit Court said that the arbitration award did not violate any "strong public policy" of New York or federal law nor did the arbitration clause in question did not set out any limitations on the arbitrators' power, and Zorc and Chase never argue to the contrary.

Absent any limitations set out in the arbitration clause, the Circuit Court concluded that the arbitrators cannot have "clearly exceed[ed] a specifically enumerated limitation" on their power.”

Finally, the Circuit Court said that under New York state law, a sufficient showing of partiality can justify overturning an arbitration award, citing CPLR §7511(b) (ii). However, the decision notes that although Zorc and Chase make this assertion, they did not provide any evidence of any actual partiality by any arbitrator. Rather Zorc and Chase claim that because the arbitrators made factual findings adverse to them, the arbitrators must have been harboring secret bias against them. This assertion begs the question of partiality.

The Circuit Court confirmed the district court's grant of Nassau's motion to confirm the arbitration award and denied Zorc and Chase petition to vacate the award.

* The Circuit Court, agreeing with the District Court that the arbitral award must be confirmed, did so “pursuant [the CPLR] §7510, and not the Federal Arbitration Act, 9 U.S.C. § 9, as the District Court did.”

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/ab1178bc-bd21-46c7-8188-adf226ceac52/8/doc/09-3643_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ab1178bc-bd21-46c7-8188-adf226ceac52/8/hilite/
NYPPL

Civil Service Law Section 72 leave

Civil Service Law Section 72 leave
Lara v City of New York, 1999 WL 459803.

It is not unusual for an employee placed on disability leave pursuant to Section 72 of the Civil Service Law to allege that his or her employer’s action in placing the individual on such leave constituted unlawful discrimination because of a disability. In the Lara case, national origin discrimination was claimed to have motivated placing the employee on “an involuntary medical leave” that eventually resulted in Lara’s being placed on Section 72 leave.

Pablo Lara, who was born in the Dominican Republic, was employed as a Program Officer by the New York City Department for the Aging (DFTA). His duties included monitoring contracts between DFTA and community-based organizations.

The New York Foundation for Senior Citizens, for instance, wrote a letter complaining that Lara “continuously” compared the Foundation administration to “‘militant dictatorships in many African countries.’” Throughout a meeting, it was alleged, Lara’s voice was raised and “he seemed agitated.” He repeatedly mimicked Foundation staff at the meeting.

The department decided to place Lara on an involuntary medical leave of absence effective March 21, 1997. Lara was also instructed to report to Dr. Azariah Eshkenazi for a psychiatric examination. According to the decision, Dr. Eshkenazi diagnosed Lara as having a “personality disorder, paranoid type” and “generalized anxiety.”

Lara was also examined by a psychiatrist of his own choosing, Dr. Pedro Rodriguez. Dr. Rodriguez said he found no evidence of “serious psychiatric conditions, including psychosis and personality disorder that could have prevented [Lara] from doing his work.”

Administrative Law Judge [ALJ] Ray Fleischhacker was designated to hold a Section 72 hearing. The ALJ decided to adjourn the hearing so that Lara could be examined by a third psychiatrist, Dr. Myron Gordon. Dr. Gordon diagnosed Lara as having “paranoid personality disorder.”

On December 3, 1997, the ALJ issued a “Report and Recommendation” in which he concluded that Lara was “mentally unfit to perform the duties of his position.” He recommended that Lara be placed on Section 72 leave.

The Department placed Lara on Section 72 leave effective December 15, 1997. While on such leave, Lara was re-evaluated by Dr. Eshkenazi, who determined that “Lara’s mental condition had not improved and that Lara remained unfit to return to work.” The department terminated Lara’s employment effective December 15, 1998. Section 73 of the Civil Service Law authorizes the termination of an individual who has been continuously absent on Section 72 leave for at least one year.

Meanwhile, Lara filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on April 16, 1997, contending that the department’s decision to place him on involuntary medical leave constituted national origin discrimination. EEOC issued Lara a “right to sue letter” and Lara initiated litigation in federal district court.

A federal district court judge dismissed Lara’s petition, agreeing with the department that Lara had failed to perform his duties satisfactorily and, consequently, he failed to satisfy one of the critical elements required to establish a prima facie case of unlawful discrimination -- the individual’s ability to satisfactory perform the duties of the position.

Judge Cote said that the city had submitted “uncontroverted evidence” of Lara’s inappropriate behavior at staff meetings and that there was unrebutted evidence that “DFTA contractors complained repeatedly about Lara’s unprofessional behavior and requested that Lara be replaced by another program officer.” Accordingly, said the court, “Lara fails to raise an issue of fact that he was performing his job satisfactorily and [thus] fails to establish a prima facie case.”

The decision also notes an important procedural element. Lara had named the City, Shaffer, and DFTA as defendants. Judge Cote said that “[t]here is no individual liability under Title VII and the Title VII claims against Shaffer must be dismissed.” In addition, the court ruled that the Title VII claims against DFTA also had to be dismissed because under Chapter 17, Section 396 of the New York City Charter all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York, and not that of any agency, except where otherwise provided by law.
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Terms and conditions of the appointment

Terms and conditions of the appointment
Carney v Insetta, App. Div., 3rd Dept., 263 AD2d 743, motion for leave to appeal denied, 94 NY2d 753

How does one determine what an individual is entitled to as an employee?

In resolving the Carney case, the Appellate Division said: just look at what the individual was offered when he or she was appointed to the position.

Julie Carney was appointed to the position of Animal Control Officer by the City of Oneonta. Previously a “full time” position, Carney was appointed as a part-time employee on an hourly basis. Carney initially was to work at least 24 hours per week and was paid at an hourly rate -- $8 per hour. She was also provided with health insurance benefits. When her work schedule was reduced, Carney said that she was entitled to the “salaried position” and the fringe benefits described in Oneonta’s personnel manual.

Told that she was not entitled to such benefits because she was a part-time employee, Carney for “breach of contract.”

Eventually the issue came before the Appellate Division. The court commented that while “a significant portion” of the briefs submitted by the parties debated the meaning and significance of certain passages set out in the city’s personnel manual, the question of Carney’s entitlement to the benefits she sought was “readily resolved by looking to the terms of her appointment.”

The Appellate Division said that while the position of Animal Control Officer was a full-time, salaried position and, pursuant to the terms of the City’s personnel manual, the incumbent was entitled to certain additional benefits, such as sick leave and vacation time, the record clearly shows, and Carney concedes, she was hired on a part-time, hourly basis.

The court noted that notwithstanding any benefits that may have been available to previous appointees holding the full-time, salaried Animal Control Officer position, there was nothing in the record to indicate that such benefits ever were intended to apply to a part-time, hourly appointee such as Carney.

The fact that the Animal Control Officer title is a “covered position” in the personnel manual was deemed irrelevant, since Carney’s position and the position covered by the manual “is not one and the same.” Significantly, noted the Appellate Division, the benefits described in the personnel manual were not offered to Carney at the time of her appointment and thus could not have formed the basis for her acceptance of the position.

Unless certain rights and benefits are mandated and thus available to an individual as a matter of law or pursuant to a Taylor Law agreement, the employer may set the terms of the appointment, including compensation and entitlement to fringe benefits.

The individual, unless he or she is able to negotiate an alternative arrangement, may either accept or decline the appointment under the terms and conditions offered by the appointing authority.
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Transferring unit work

Transferring unit work
CSEA Local 1000 and Local 836, 32 PERB 3015

The City of Newburgh abolished its positions of animal control officers, who were represented by CSEA. The city unilaterally transferred the duties of the positions to the nonunit police officers represented by Local 836.

CSEA objected and filed an improper practice charge with PERB contending that the city had violated the Taylor Law when it unilaterally transferred “non-emergency” duties previously exclusively performed by the animal control officers.

Ultimately PERB affirmed its Director of Public Employment Practices and Representation’s ruling that “the abolishment of the unit positions was a legislative act by the City Council that was not reviewable under Section 209-a.1(d) of the Act.” PERB said that the Director “correctly found that this was a legislative action involving a nonmandatory subject of negotiation and was not violative of ... the Act.”
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PERB finds employer dismissed probationer because of union activity; orders employee to be given a second probationary period

PERB finds employer dismissed probationer because of union activity; orders employee to be given a second probationary period
CSEA Local 1000 and Westchester County, 32 PERB 3017

Westchester County terminated probationary employee Michael Holcomb.

CSEA objected, contending that Holcomb was discharged because of his participation in union-related “protected activities” in violation of the Taylor Law.

PERB’s administrative law judge [ALJ] ruled that Kenneth Grauer, Holcomb’s supervisor, wrote a negative evaluation that was “tainted by union animus” and that this contributed to Holcomb’s dismissal.

Westchester appealed, arguing that Holcomb’s separation “was motivated by only legitimate business reasons” and, further, Holcomb was not protected in his activities because “he was not a union representative and was not engaged in union-sanctioned activity.”

PERB agreed with the ALJ’s finding but said that the remedial order should be modified. “Grauer believed Holcomb to be a union activist and that belief contributed to his negative recommendation.” PERB said that action taken against a unit member based upon a belief can violate the Taylor Law, citing its ruling in Holbrook Fire Department, 30 PERB 3062.

PERB commented that “while it may be true that an employer is free to terminate a probationary employee for any cause or no cause at all, this principle plainly does not apply if the employee is terminated in violation of law.”

PERB directed Westchester to offer Holcomb a second probationary period under another supervisor. It also said that if Holcomb successfully completed this second probationary period, which should not be less than the minimum probationary period authorized, Westchester should compensate him for lost pay and benefits, “less any earnings or other compensation received by him” from the date of his probationary termination through the date of his reinstatement to his former title.
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Reverse discrimination

Reverse discrimination
Hayden v Nassau County, CA2, 180 F.3d 42

The Hayden decision sets out some of the major considerations that are relevant in attempting to demonstrate “reverse discrimination” in civil service examinations.

After an exam was administered to 25,000 police department applicants in Nassau County in 1994, experts evaluated the 25 test sections administered to determine if any had an adverse impact on minority test-takers as well as whether the test questions were sufficiently job-related. The county only counted nine of the 25 test sections in computing the exam score. William Hayden and 67 other white, Latino and female applicants to the Nassau County Police Department brought a lawsuit in federal district court alleging that “a police officers’ entrance exam designed to minimize the discriminatory impact on minority candidates necessarily discriminated against them.”

The Second Circuit U.S. Court of Appeals in New York affirmed a U.S. district judge’s dismissal of the action. It called the exam a “race-neutral entrance examination with the purpose of eliminating or reducing the differential effects suffered by minority candidates.” Although Nassau County was “conscious of race” in redesigning its entrance exam, “it treated all persons equally in the administration of the exam,” the court said. Everyone took the same test and all tests were scored in the same manner, and no differential cutoffs or race norming was used, the court said.

The Court of Appeals rejected all of the arguments presented by Hayden, holding that he had failed to allege facts that, if proven true, would entitle the class to relief. Reviewing each of Hayden’s theories justifying relief, the court said that:

1. Equal protection: To state a claim for an equal protection violation, appellants must allege that a government actor intentionally discriminated against them on the basis of race, national origin or gender. Here is undisputed that the exam was administered and scored in an identical fashion for all applicants. The exam was not scored differently on the basis of a candidate’s ethnicity or gender, nor were differential cut-off points used for applicants of different races or sexes. In contrast to affirmative action tools, such as quota systems, set-aside programs, and differential scoring cutoffs, which utilize express racial classifications and which prevent non-minorities from competing for specific slots or contracts, the Circuit Court said that Nassau’s efforts were not unlawful.

2. Facially neutral policy applied in discriminatory manner: Also rejected was Hayden’s arguments concerning facially neutral ordinance was discriminatorily applied.

3. Discriminatory intent and effect: Although Hayden claimed “an equal protection violation”, the court said it agreed with the district court’s conclusion that in order to prevail it must be alleged that Nassau County harbored a discriminatory intent against the class and that the entrance examination disproportionately impacted them. No such claims which would demonstrate either discriminatory intent or discriminatory impact were put forth.

The court’s conclusion: “Nassau County sought to design a police officers’ entrance examination which would reduce the discriminatory impact of its hiring practices on minority candidates. Although the decision to redesign the exam certainly took race into account, the exam was administered and scored in a wholly race-neutral fashion. We conclude that race-neutral efforts to address and rectify the racially disproportionate effects of an entrance examination do not discriminate against non-minorities.”

Accordingly, the Circuit Court ruled that “the 68 white and Latino appellants, male and female, in this case fail to state a claim under the Equal Protection Clause, Section 703 of Title VII, and Sections 106 and 107 of the Civil Rights Act of 1991.”
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An interim award by an arbitrator does not constitute a "final determination” for the purposes of an Article 75 appeal challenging the award

An interim award by an arbitrator does not constitute a "final determination” for the purposes of an Article 75 appeal challenging the award
Matter of Geneva City School Dist. v Anonymous, 2010 NY Slip Op 06915, Decided on October 1, 2010, Appellate Division, Fourth Department

The Geneva City School District filed 16 disciplinary charges pursuant to Education Law §3020-a against a tenured teacher [Anonymous] employed by the district.

Anonymous asked for a hearing, and the parties selected, "by mutual agreement," an arbitrator to serve as the Hearing Officer pursuant to §3020-a[3][b][ii] of the Education Law. At the commencement of the hearing, Anonymous moved for summary judgment dismissing 11 of the 16 charges. The Hearing Officer made an "interim award" granting the motion. Before the hearing reconvened to consider the remaining 5 charges filed against Anonymous, Geneva filed an Article 75 action seeking to vacate the interim award, contending that it was irrational and violated an important public policy.

Supreme Court rejected Geneva’s arguments and denied the petition. The Appellate Division affirmed the Supreme Court’s ruling, explaining that “The interim award was not ‘a final and definite award’ resolving the matter submitted for arbitration” within the meaning of CPLR §7511[b][1][iii].

In the words of the Appellate Division, “Inasmuch as the interim award does not constitute a ‘final determination made at the conclusion of the arbitration proceedings’ there is no authority for judicial intervention at this juncture.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06915.htm
NYPPL

Termination for inability to produce proof of possession of a required license or certificate is not a dismissal in the nature of discipline

Termination for inability to produce proof of possession of a required license or certificate is not a dismissal in the nature of discipline
Matter of Cravatta v New York State Dept. of Transp., 2010 NY Slip Op 06952, decided on October 1, 2010, Appellate Division, Fourth Department

Michael J. Cravatta, a Highway Maintenance Worker with the NYS Department of Transportation, was required to possess a valid New York State Class B Commercial Drivers License [CDL] as a condition of his employment by the Department.

When Cravatta’s CDL was suspended, the Department terminated his employment without his being given a pre-termination hearing.

Cravatta sued and Supreme Court granted his petition seeking to annul the determination terminating him from his position. Transportation appealed the lower court’s ruling.

The Appellate Division, stating that “Supreme Court erred …,” reversed the lower court “on the law” and dismissed Cravatta’s petition in its entirety.

The court said that as Cravatta was “required to maintain” a CDL, he was properly terminated after his CDL was suspended because he lacked one of the credentials required for his position.

Further, said the court, “Cravatta's termination was not disciplinary in nature and thus was subject to neither the arbitration clause in the collective bargaining agreement nor the provisions of Civil Service Law §75,” citing Matter of New York State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275.

NYPPL Comment: Courts have viewed employees who lack licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. Indeed, it could be argued that the employer has no alternative, as it could be considered unlawful to permit an unlicensed individual to perform the duties for which a license is required.

Although the loss of a required drivers license if frequently the basis for an employee being summarily terminated, the loss of an attorney’s license to practice law or the expiration of a temporary permit to teach would also result such action.

All that appears to be necessary in such cases is for the appointing authority to make some reasonable inquiry to determine if the employee may lawfully perform the duties of the position and provide the individual a reasonable opportunity to produce a valid license or certificate.

Essentially, the courts have held that where an individual is required to hold a valid license in order to perform the duties of the position and the employee losses the required license or it expires, the individual cannot be allowed to perform the duties of the position.

This proposition was explored by the Appellate Division in Martin ex rel Lekkas, 86 AD2d 712.

Lekkas, an Assistant Clinical Physician had been permanently appointed to a position in the Office of Mental Retardation and Developmental Disabilities,. He was subsequently terminated from his position without notice or hearing because he did not obtain the required license to practice medicine in New York State issued by the Education Department (Education Law Section 8522).*

The Appellate Division affirmed a lower court ruling that Lekkas’ termination was unlawful.

The court explained that although it was lawful to summarily discharge an employee without notice and hearing if the worker is unable to produce his or her required license, this could be done only if the duties being performed required the possession of the license.

According to the record, Lekkas was performing administrative duties rather than “practicing medicine.” As he was not engaged in the practice of medicine, Lekkas was not “unqualified” with respect to performing his administrative duties without the license that would have been otherwise required had he been engaged in the practice of medicine.

* The issue arose after the Education Law was amended to require persons previously appointed as physicians to obtain a license to practice medicine. Lekkas had been appointed to the position Assistant Clinical Physician prior to the amendment but had not obtained a New York State license to practice medicine within the prescribed time period.

The Cravatta decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06952.htm
NYPPL

If a court finds that an administrative penalty is shocking to one's sense of fairness” it must remand the matter for a new penalty determination

If a court finds that an administrative penalty is shocking to one's sense of fairness” it must remand the matter for a new penalty determination
Matter of Liguori v Beloten, 2010 NY Slip Op 06739, Decided on September 30, 2010, Appellate Division, Third Department

Dr. James M. Liguori pleaded guilty to one specification of professional misconduct based upon his failure to maintain adequate records and agreed to a penalty consisting of “a censure and reprimand,” being on probation for three years under the supervision of a practice monitor, to pay a $25,000 fine and to perform “100 hours of nonmedical community service.”

Subsequently the Chair of the Workers' Compensation Board, Robert E. Beloten, removed Dr. Liguori’s name from the Board’s list of eligible providers.*

When Liguori’s request for reconsideration and, or, administrative review of the removal of his name from the list of “WCB providers” was denied, he commenced a CPLR article 78 proceeding seeking to annul the Chair’s determination.

Supreme Court granted Liguori’s petition, finding that the Chairman Beloten had “failed to adequately explain the basis for [Liguori’s] removal from the list of authorized providers and remitted the matter for further proceedings”.

In response to the Board’s issuing a new determination that, again, removed his name from the list of authorized providers that set out its basis for Liguori’s removal, Liguori again filed an Article 78 petition contending that the Board’s second determination was arbitrary and capricious and violated his right to due process.

Supreme Court granted Liguori’s petition. Although the court found that the explanation for Liguori’s removal was adequate, it ruled that “the Chair's determination nonetheless was arbitrary and capricious” and ordered the Board to restore Liguori to its list of eligible providers. The Board appealed.

The Appellate Division reversed the lower court’s ruling, explaining that "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," citing the Pell Doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 – the so-called Pell Doctrine.

The Pell Doctrine stands for the proposition that courts must uphold the penalty imposed by an administrative body unless it is "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness."

The Appellate Division said that in determining if a penalty meets the Pell standard, “the reviewing court may neither second-guess the administrative agency nor substitute its own judgment for the action taken.” Further, said the Appellate Division, should the court determine “that the penalty imposed cannot stand, the court may not fashion a reduced penalty” but must remit the matter to the agency for a redetermination of the penalty to be imposed.

As to its basis for vacating the Supreme Court’s determination, the Appellate Division said that it had concluded that based on its review of the record “we cannot say that the penalty imposed constitutes an abuse of discretion as a matter of law.”

* WCB providers are authorized to render care and treatment to individuals who had suffered work-related injuries.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06739.htm
NYPPL

Prima facie case of unlawful discrimination may be rebutted by a presentation of a non-discriminatory reason for the employment decision

Prima facie case of unlawful discrimination may be rebutted by a presentation of a non-discriminatory reason for the employment decision
Matter of Monsay v New York State Div. of Human Rights, 2010 NY Slip Op 06928, Decided on October 1, 2010, Appellate Division, Fourth Department

Evelyn H. Monsay filed charges against the State University College at Oswego with the New York State Division of Human Rights alleging unlawful discrimination based on age and gender.

The Division found that Oswego had not unlawfully discriminate against Monsay on the basis of gender or age and dismissed her complaint.

Monsay appealed but the Appellate Division sustained the Division’s determination, hold that it was supported by substantial evidence.

The court then observed that “Even assuming, arguendo, that [Monsay] established a prima facie case of gender or age discrimination, we conclude that the College rebutted the presumption of discrimination created by [Monsay’s] by presenting the requisite "legitimate, independent, and nondiscriminatory reasons to support its employment decision[s."

It should be noted that once a prima facie case of alleged unlawful discrimination is rebutted by the employer with “legitimate, independent and nondiscriminatory reasons” for its decision, the burden of going forward shifted to Monsay to demonstrate that the explanation offered by Oswego was mere subterfuge for its unlawful discriminatory actions. Apparently Monsay was unable to do so to the satisfaction of the Division of Human Rights.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06928.htm
NYPPL

Vacating an arbitration award

Vacating an arbitration award
Local 756 ex rel Westfall v Cohoes, 263 AD2d 652

The Westfall decision concerned an arbitration award on a ruling involving the denial of Section 207-c benefits. It sets out some of the basic elements considered by courts when they are asked to vacate an arbitration award.

The case also shows the distinction that can be made between a “job related” illness, such as stress, and an injury incurred “in the performance of duty” for the purposes of Section 207-a or Section 207-c.

Cohoes and Local 756 negotiated a Taylor Law provision in which it was agreed that Section 207-a and Section 207-c disputes would be resolved in accordance with the grievance procedures set out in the collective bargaining agreement.

Kenneth Westfall, a police lieutenant employed by the City of Cohoes, filed applications in March 1997 and in June 1997 seeking 207-c benefits. The city rejected both of Westfall’s applications, concluding that Westfall’s injury -- symptoms associated with stress and depression -- was not sustained in the performance of his duties.

The Appellate Division commented that “Westfall suffered from stress and depression as a result of conflicts with a supervisor” and that these episodes of stress and depression led to absences.

The issue was submitted to arbitration in accordance with the grievance procedure set out in the Taylor Law agreement between the city and the union. Further, the parties had stipulated that the question for the arbitrator to resolve was whether Westfall “[s]hould ... receive [General Municipal Law Section] 207-c benefits for [his] illness”.

In the course of the arbitration, there was testimony from three physicians and a clinical psychologist, each of whom had examined Westfall. All agreed that Westfall suffered from depression, but that this illness was not caused by actual police duties but, rather, from an interpersonal conflict with a superior.

Considering “the uniqueness of the hazards faced by police officers,” the arbitrator said that Westfall’s illness, although job related, was not a result of the performance of his police duties and therefore not the type of illness encompassed under the statute. The conclusion: Westfall “should not receive [Section] 207-c benefits.”

Local 756 filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking a court order vacating the award. It contended that (1) the award was irrational or, in the alternative, (2) the award violated public policy. The union’s petition was dismissed by the Supreme Court and the local appealed, asking the Appellate Division review the matter.

The Appellate Division agreed that a court may vacate an arbitration award if it finds that the award is violative of a strong public policy or it is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power. The problem here was that the Appellate Division concluded that the arbitrator’s award did not offend any standard.

The Appellate Division also commented that “[t]he power of the courts to intervene is even more restricted when the arbitrator’s interpretation resolves the question submitted, and not merely one aspect of the dispute”.

As to the local’s claim that the award was “irrational,” the Appellate Division said that the arbitrator’s interpretation of the statute, even though the interpretation “may have been erroneous or inconsistent with seemingly relevant decisional authority,” under the standard that the courts must use when considering vacating arbitration awards, “we are unable to conclude that the arbitration award denying General Municipal Law Section 207-c benefits under these circumstance was totally irrational.”

On this point the court, citing Silverman [Benmor Coats], 61 NY2d 299, said that an arbitrator is not bound by principles of substantive law and may do justice as he or she sees fit, applying his or her own sense of law and equity to the facts of the subject dispute.

Turning to the local’s public policy argument, the Appellate Division said that it was not persuaded that the award violates strong public policy, commenting that “the Court of Appeals has repeatedly cautioned that the public policy exception is narrow and an award may be set aside on this ground “[o]nly when the award contravenes a strong public policy, almost invariably involving an important constitutional or statutory duty or responsibility.”

Before a court may intervene by vacating an arbitration award on public policy grounds, it “must be able to examine an arbitration agreement or an award on its face, without engaging in extended fact-finding or legal analysis, and conclude that public policy precludes its enforcement,” quoting Matter of Sprinzen [Nomberg], 46 NY2d 623, 631). Finding that Local 756’s contentions did not satisfy this rigorous standard, it affirmed the lower court’s decision denying the local’s application to vacate the award.
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Workers’ Compensation Leave - Civil Service Law Section 71
House v NYS Office of Mental Health, 262 AD2d 929

Martha I. House, a keyboard specialist at Richard H. Hutchings Psychiatric Center, suffered a work-related injury in December 1991. As a result she was frequently absent from work. The psychiatric center deemed these absences to be pursuant to workers’ compensation leave under Civil Service Law Section 71.

When the cumulative total of her Section 71 absences exceeded one year, the appointing authority elected to terminate her from her position. House was told that she could apply for reinstatement to her former position if she could demonstrate that she was medically fit.*

House submitted a note from her physician stating that she was medically fit. The Psychiatric Center referred her to a physician employed by the State's Employee Health Service for an evaluation. The EHS physician stated that House was “too symptomatic to return to work and perform the full duties of her position.” Based on the EHS physician's evaluation House was terminated from her position.

When House sued seeking reinstatement to her job and back pay a State Supreme Court decided that the Center had not given House “proper notice of the procedure for requesting a post-termination hearing, resulting in the denial of her due process right to an administrative appeal.”

Supreme Court remitted the matter for an administrative hearing on the issue of House’s medical condition and her ability to perform her job-related duties at the time of her termination. It declined, however, to order either House’s reinstatement or back salary at this point in the process.

Both House and the employer appealed. The Appellate Division ruled although House was entitled to a post-termination hearing, until that administrative remedy has been exhausted, a resolution of her other demands would be premature.

The Appellate Division said that once it has been determined by the appointing authority’s physician that an employee is unfit to serve, he or she cannot be restored to employment until there is a finding that the employee is medically fit to perform the duties of the position.

Thus, the Supreme Court’s judgment remitting the matter for an administrative hearing to develop the record regarding petitioner’s medical fitness was appropriate.

N.B. This decision suggests that the due process procedures available to an individual on leave pursuant to Section 71 have been confused with the administrative procedures required to be followed in the event the appointing authority wishes to place the individual on involuntary leave pursuant to Section 72 of the Civil Service Law, i.e., absence due to an injury or disease that is not job-related. Further, if the appointing authority subsequently elects to terminate the employee after he or she has been continuously absent from his or her position for one year or longer pursuant to Section 72, it may due so in accordance with the provisions set out in Section 73 of the Civil Service Law.

Insofar as Section 71 leave is concerned, the appointing authority has the discretion, but is not required, to terminate an employee on Section 71 leave once the individual has been absent from work due to the underlying injury or disease for a cumulative period of at least one year. Presumably the termination is effected while the individual is actually absent from work and on leave pursuant to Section 71.

Section 71 then provides, in pertinent part, that in the event an employee is terminated pursuant to Section 71 of the Civil Service Law "Such employee may, within one year after the termination of such disability, make application to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission."

Understandably, it is the individual's, rather than the employer's responsibilty to make such an application, as only the individual can determine if his or her disability is no longer an impediment to his or her performing the duties of his or her position.

Section 71 then provides that "If, upon such medical examination, such medical officer shall certify that such person is physically and mentally fit to perform the duties of his or her former position, he or she shall be reinstated to his or her former position, if vacant, or to a vacancy in a similar position or a position in a lower grade in the same occupational field, or to a vacant
position for which he or she was eligible for transfer."

If the medical officer does not certify the individual is physically and mentally fit to perform the duties of the position, presumably the individual could file an Article 78 petition challenging the determination.

In any event, if the individual is not determined to be qualified to return to his or her position, he or she may make additional applications for evaluation thereafter.

* In contrast, Section 72 of the Civil Service Law provides for leaves of absences required because of non-work related injuries or disease. An individual who has been absent for a consecutive one-year period may be terminated pursuant to Section 73 of the Civil Service Law.
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Adjusting a school's annual budget

Adjusting a school's annual budget
Leman v South Orangetown CSD, Decisions of the Commissioner of Education #14166

South Orangetown Central School District’s school superintendent position became vacant April 1, 1998. In preparing its budget for the 1998-99 school year, the district included an appropriation of $131,885 for the superintendent’s salary line as the amount it expected would be required to employ a new superintendent.

The district later entered into a contract with its new superintendent, Eileen Gress, that provided for an annual salary of $142,000 plus benefits. The total amount of Gress’ compensation was disclosed as required by Section 1716 of the Education Law. The district adopted a second, revised budget reflecting Gress’ compensation.

James Leman filed an appeal with the Commissioner of Education contending, among other things, that the board’s actions were improper as they involved “changes ... to aid the central administration portion of the budget.” He asked the Commissioner to void the district’s contract with Gress and to “direct the district to enter into new negotiations to fill the superintendent position.”

The Commissioner dismissed Leman’s appeal on the merits noting that the “actual figure for the superintendent’s salary and benefits was included in the proposed budget that was made available at the ... public hearing and presented to the voters....”

This, said the Commissioner, complied with the requirements set out in Section 1804.4 of the Education Law.

Section 1804.4 requires the board of a central school district to prepare and present a school budget at a budget hearing “at least 7 but not more than 14 days before the district meeting at which the budget vote will occur.” The record, said the Commissioner, showed that the district met this requirement.
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Applying for disability retirement

Applying for disability retirement
Grossman v McCall, App. Div., Third Dept., 262 AD2d 923, Motion for leave to appeal denied, 94 NY2d 765, Appeal on Constitutional grounds dismissed, 94 NY2d 796

Retirement and Social Security Law Section 62(aa)(2), allows a member of a public retirement system eligible for ordinary disability retirement to file an application for benefits if (1) the member is still in service at the time of the application or (2) the member applies within 90 days from the date of his or her discontinuance of service. The Appellate Division’s decision in the Grossman case illustrates that if an application for ordinary disability retirement is untimely, the application will be rejected -- even if there are extenuating circumstances.

The case arose after the Comptroller disapproved the application for ordinary disability retirement filed on behalf of Herbert E. Grossman by his wife. Grossman, a psychologist with the Bronx Developmental Services, sustained an injury at his home. He was terminated from his position effective July 27, 1990.

More than three years later his wife, Marsha Grossman, acting under a power of attorney, filed an application with the New York State Employees’ Retirement System [ERS] for ordinary disability retirement benefits. Although Mrs. Grossman proved that her husband “was mentally, psychiatrically and neurologically disabled after the accident,” the fact that the application was not filed within the time allowed by Section 62(aa)(2) proved critical. The Appellate Division said that Grossman’s illness did not toll the mandated filing period.

The court also rejected Mrs. Grossman’s contention that her husband had a property interest in the benefit and that the rejection of his application constituted a denial of a property right without due process. The Appellate Division said that filing of a timely application “constitutes a condition precedent to the ripening of any right to these benefits from which a claim of due process can arise.”

The decision also reports that ERS “received a request on [Grossman’s] behalf for an application for benefits by telephone on September 25, 1990 and that an application was sent to his home on October 3, 1990 -- when sufficient time existed for [Grossman] to have filed a timely application.” In addition, said the court, “the record reflects that [Grossman] did, in fact, have sufficient capacity to timely file [for], and therefore receive, social security disability benefits.”
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Employment contracts in public education

Employment contracts in public education
Brousseau v Shenendehowa CSD, Decisions of the Commissioner of Education #14193

The Shenendehowa Central School District and its Director of Finance, Susan M. Martin, signed an “employment agreement” for the period May 13, 1998 through June 30, 1999 setting out the terms and conditions of Martin’s employment with the district. The agreement also provided that it could be “renewed annually thereafter.”

Eugene Brousseau challenged the authority of the school board to enter into such an agreement with its Director of Finance. He asked Commissioner of Education Richard P. Mills to rescind the agreement. The district, in support of its action, argued that it had authority under Education Law Section 1709(33) “to enter into employment agreements establishing the terms of employment for its employees.”

The Commissioner commenced his analysis by commenting that “there are a limited number of provisions in the Education Law that expressly authorize a board of education to employ specified individuals” such as librarians, “qualified teachers,” an auditor and a superintendent.

However, said the Commissioner, the fact that there are no express provisions for the employment of individuals other than those specifically provided for by law “does not foreclose a board from employing individuals in such positions as are necessary to operate and maintain the school district, because the employment of such persons is a reasonable and necessary means for the board to fulfill its duty to superintend, manage, and control the affairs of the district pursuant to [Education Law] Section 1709(33).”

The Commissioner dismissed Brousseau’s appeal noting that:

1. The authority to contract with employees is implicit in the act of employing such individuals -- hiring an individual “itself creates a contract, whether express or implied, oral or written;”

2. A board of education, “as a public authority,” has a common-law right to contract with teachers and other necessary personnel;” and

3. A board of education may enter into contracts with its employees “to the extent the contract is not inconsistent with other statutory conditions,” citing Courtemanche v Enlarged City School District of Middletown, 686 F.Supp.2d 1025.

Therefore, the Shenendehowa board’s entering into a contract with Martin concerning the terms and conditions of her employment “is authorized as an implicit, reasonably necessary power of the board ... and in addition is authorized pursuant to the board’s common law right to contract.”
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Suspended employee found to have submitted required documents at the earliest date practicable

Suspended employee found to have submitted required documents at the earliest date practicable
NYC Department of Sanitation v McCaffrey, OATH Index #2518/10

OATH Administrative Law Judge Alessandra Zorgniotti recommended dismissal of charges that a sanitation worker, John McCaffrey, had failed to report to the clinic on two days as ordered and had failed to submit adequate documentation of his claim that he was unable to travel on those dates.

Judge Zorgniotti found McCaffrey had a legitimate medical excuse, which prevented him from traveling on those days.

Under Department rules the worker had five business days from the date he was ordered to appear and supply the clinic with a note, but McCaffrey was not permitted to submit one because he was on suspension.

Instead, McCaffrey submitted the note on the day his suspension was lifted. Because McCaffrey had submitted the note at the earliest practicable time following the termination of his suspension, Judge Zorgniotti said she found the submission timely under relevant circumstances.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2518.pdf
NYPPL

School Board to provide representation to school employee sued for striking a student in violation of Board policies in lawsuit that followed

School Board to provide representation to school employee sued for striking a student in violation of Board policies in lawsuit that followed
Matter of Sagal-Cotler v Board of Educ. of the City School Dist. of the City of NY, 2010 NY Slip Op 32657(U). September 22, 2010, Supreme Court, New York County, Judge: Carol E. Huff [Not selected for publication in the Official Reports]

Deborah Sagal-Cotler, a paraprofessional employed by the New York City School District, was supervising and escorting a class to the school cafeteria when one of the students repeatedly failed to follow her instructions. Sagal-Cotler then “yelled [the student’s] name and struck him in the face.”

The student’s commenced a civil action based on this incident [Watson v City of New York, Index No. 17534/09 (Sup Ct, Kings County)] in which Sagal-Cotler was a named respondent. Sagal-Cotler’s request for legal representation in the matter was denied in a letter from the City of New York Law Department.

In response, Sagal-Cotler filed an Article 78 petition seeking an order requiring the New York City Board of Education to provide her with legal representation, indemnification, reimbursement for attorneys' fees, and to hold her harmless for any financial losses resulting from the civil action, citing Education Law §3028 in support of her demand.

The Board, contending that Education Law §3028 was inapplicable and that §2560 of the Education Law controlled in this instance, opposed Sagal-Cotler’s motion. The Board argued only §2560 applied and provides that “[I]n a city of having a population of one million or more, the members of each community school board in such city, the teaching or supervising staff, officer or employee of such board . . . shall be entitled to legal representation and indemnification pursuant to the provisions of. . . section fifty-k of the general municipal law.”

The Board argued that although General Municipal Law §50-k(2) provides for such representation and indemnification it is applicable only with respect of acts or omissions that occurred “while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of the agency at the time the alleged act or omission occurred.” Here, said the Board, Sagal-Cotler “concedes that her action violated board rules against corporal punishment.”

Accordingly, claimed the Board, “if §50-k(2) were to apply, she would not be entitled to the relief she seeks.”

The court disagreed, holding that Education Law §3028 rather than General Municipal Law §50-k(2) controlled as “It is well settled that, in a conflict between a statute of general applicability and one of specific applicability, the special statute controls,” citing Board of Managers of Park Place Condominium v Town of Ramapo, 237 AD2d 537.

Here, said the court, Education Law §3028 is the more specific statute, because it provides specifically for situations involving disciplinary action in an education context, citing Tinmerman v Bd. of Educ. of the NYC School District, 50 AD3d 592. In Tinmerman the court held that as the “proceeding against petitioner clearly arose out of disciplinary actions that he took against pupils, respondents should reimburse petitioner for the attorneys’ fees and expenses he incurred in defending himself.”

However, this result would hinge on whether Sagal-Cotler was acting within the scope of her employment or duties during the incident. Judge Huff concluded that she was based on the ruling in Blood v Bd. o f Educ, of the City of New York, 121 AD2d 128. In Blood the Appellate Division found that “although in violation of regulations, a teacher acted within the scope of her duties where, angered by a student, she swung a book bag that injured another student.”

The court’s rationale: "Surely, it is not so unusual an occurrence that a teacher loses her temper with her class. Indeed, displays of anger in the classroom cannot be regarded as other than natural and sometimes necessary incidents of a teacher’s work. Nor can it be reasonably expected that a teacher’s anger will always be well gauged to the occasion and unaccompanied by impulsive behavior. Such behavior, although undesirable; is a generally foreseeable eventuality of teaching and, as such, must be deemed within the scope of a teacher’s employment."

Applying these rulings, Judge Huff concluded that Sagal-Cotler’s conduct “fell within the scope of her employment.”

Concluding that the Board's “misapplication of General Municipal Law §50-k(2)” was arbitrary and capricious,” that part of Sagal-Cotler’s petition seeking legal representation and reimbursement for attorneys’ fees in the Watson case was granted.

However, said the court, Sagal-Cotler’s claims for indemnification and to be held harmless are premature and were denied without prejudice pending the outcome of the Watson case.

* Education Law §3028 address “Liability of school district for cost and attorney’s fees of action against, or prosecutions of, teachers, members of supervisory and administrative staff or employees, and school volunteers.” It, in relevant part, provides “Each board of education, trustee or trustees in the state shall provide an attorney or attorneys for, and pay such attorney’s fees and expenses necessarily incurred in the defense of a teacher, member of a supervisory or administrative staff or employee, or authorized participant in a school volunteer program in any civil or criminal action or proceeding arising out of disciplinary action taken against any pupil of the district while in the discharge of his duties within the scope of his employment or authorized volunteer duties.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32657.pdf
NYPPL

Denial of tenure based on failure to satisfy an advanced degree requirement in timely fashion ruled arbitrary

Denial of tenure based on failure to satisfy an advanced degree requirement in timely fashion ruled arbitrary
Aievoli v SUNY, 264 AD2d 476

The State University of New York [SUNY] denied Patrick J. Aievoli tenure because he had failed to attain his master’s degree “in a timely manner.” Aievoli sued, claiming that the tenure decision lack any rational basis.

The Appellate Division, Second Department, agreed with Aievoli and ordered SUNY to reopen its tenure process. The court said “there was no evidentiary support to substantiate [SUNY’s] claim that the denial of tenure was based upon a lack of commitment on the part of Aievoli” and that “the denial of tenure on this basis also was arbitrary and capricious.”

The Appellate Division affirmed a ruling by State Supreme Court Judge Alan Winick [Nassau County], who cited Harrison v Goldstein, 204 AD2d 451 in support of his decision.

The Appellate Division’s decision in Harrison relies on the so-called Pell standard, which holds that a court is justified in overturning an administrative decision if it finds that the decision is “shocking to one’s sense of fairness.” [Pell v Board of Education, 34 NY2d 222] Pell is more commonly cited in connection with challenges to disciplinary terminations.

In contrast to Aievoli’s case, it is well settled that where the law requires an individual to have a valid license or permit in order to practice his or her profession or duties, the loss, expiration, revocation or failure to obtain or maintain the required license or permit in a timely fashion means that the individual is not authorized to perform the duties of the position as a matter of law. Accordingly, the courts have had little difficulty in upholding the immediate suspension of a teacher without pay where the educator is unable to present a valid license or certification when asked to do so.

Although such a person may continue to be “qualified” to perform the duties of the position, he or she is typically barred from doing so unless and until a valid license or permit is obtained. In such situations the courts have upheld the employer summarily suspending the employee without pay.

Courts have deemed suspension without pay to be proper where the teacher lacks the necessary license or certification authorized [Meliti v Nyquist, 41 NY2d 183]. The legal theory in such cases is that it would be unlawful to continue a tenured but uncertified, and therefore unqualified, teacher on the payroll. [Suspension without pay is not available in disciplinary cases under Section 3020-a of the Education Law.]

Courts have also ruled that the fact that the teacher is granted a license to teach “retroactive” to the date of the expiration of his or her earlier certificate does not cure his or her “unqualified” status. The defect -- the inability to lawfully perform teaching duties -- is not remedied by the retroactive issuance of a license and the teacher’s subsequent recertification does not make his or her earlier suspension without pay unlawful. This is significant as it implies that the issuing of a “retroactive license” does not support any claim for back salary and benefits for the period during which the teacher was off the payroll.
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Excessive absenteeism basis for termination

Excessive absenteeism basis for termination
Cicero v Triborough Bridge and Tunnel Auth., 264 AD2d 334

The Triborough Bridge and Tunnel Authority [TBTA] terminated Rocco Cicero, a toll collector, after finding him guilty of charges alleging toll shortages, four unauthorized absences and excessive absenteeism. The finding of “excessive absenteeism” was based on Cicero being absent 80% of the time during a 22-month period. Most of this absence was because of an on-the-job injury suffered by Cicero and most of them were authorized by TBTA after periodic medical evaluations by its physicians.

After a hearing, the Administrative Law Judge (ALJ) sustained the toll shortage charge and one of the unauthorized absence charges, but dismissed the excessive absenteeism charge. The ALJ decided that although Cicero’s absences could be considered “excessive per se,” “it would be unfair to discipline employees for taking lengthy, injury-related leave” that was approved by the Authority without first giving the employee additional notice or warning as to what amount of absences would be deemed excessive and subject him or her to discipline. The ALJ recommended a 5-day suspension for the other infractions.

TBTA accepted the ALJ’s findings concerning the charges related to the toll shortage and unauthorized absences but, in addition, sustained the charge of excessive absenteeism. TBTA’s rationale: its rules explicitly authorized dismissal as a penalty for excessive absenteeism, and Cicero’s 80% absentee rate was plainly excessive.

TBTA’s appointing authority commented that Cicero’s absenteeism continued even after the charges were filed against him and that his excessive absences had resulted in serious morale and financial problems to the agency.

Cicero appealed and won an order by State Supreme Court Justice Alice Schlesinger annulling his termination and directing TBTA to reinstate him on the grounds that TBTA’s determination was arbitrary and capricious. Judge Schlesinger concluded that Cicero had been deprived of his due process rights, because he was not given notice that his approved absences could ultimately be considered “excessive”, and therefore misconduct. The Appellate Division reversed Judge Schlesinger’s ruling.

The Appellate Division decided that TBTA’s decision to terminate Cicero’s employment for excessive absenteeism “had a rational basis and should not be disturbed.” The courts said that the ALJ acknowledged that an absentee rate in excess of 50% “may be deemed excessive per se” and that Cicero’s absentee rate was well beyond that threshold. While the ALJ and Judge Schlesinger decided that Cicero had not been given “adequate notice,” the Appellate Division said that it disagreed and reversed.

The decision comments that TBTA’s rules clearly state that “excessive absence... will be cause for dismissal.” In addition, the governing collective bargaining agreement guarantees employees only 12 days sick leave per year, and TBTA issued a new policy in 1992 providing that a memorandum of unsatisfactory attendance would be issued to an employee after a 5th sick day was taken. This, said the court, meant that Cicero should have been on notice from numerous sources that excessive absences would not be tolerated.

The Appellate Division also rejected Cicero’s argument that his absences were approved and medically justified and therefore excused for the purposes of maintaining any disciplinary action against him.
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Filing a timely appeal challenging administrative decisions critical

Filing a timely appeal challenging administrative decisions critical
Decker v BOCES Monroe 2-Orleans, Decisions of the Commissioner of Education #14173

It is not unusual for a disappointed job seeker to press for reconsideration of his or her application for appointment. The Decker case demonstrates that once a “final determination” concerning the appointment is made, seeking reconsideration does not toll the statute of limitations for filing a timely appeal of the decision.

Marvin R. Decker applied for a teaching position with Monroe2-Orleans BOCES. In February 1998, he learned that another applicant had been selected and was to be appointed effective March 31, 1998. Decker then “engaged in lengthy correspondence” with the BOCES in an effort to secure his appointment to the position.

In June 1998, the district superintendent candidly advised Decker that the board was not going to change its mind and suggested that he “seek a determination” from the Commissioner of Education or the courts. Notwithstanding this suggestion, Decker continued to correspond with the BOCES through October 1998 and did not file his Section 310 appeal with the Commissioner until December 16, 1998.

The Commissioner dismissed Decker’s appeal as untimely, rejecting Decker’s request that his delay in filing the appeal be excused “because he was trying to resolve this matter with [the BOCES].” The Commissioner pointed out that there were “numerous decisions ... that an attempt to gain reconsideration of a final determination does not stop the running of the [statute of] limitations period.”

In addition, Decker’s appeal contained a fatal defect, which would have required the Commissioner to dismiss his appeal even if it were timely filed: Decker neglected to name, and serve, a necessary party to his appeal - the successful candidate.* The Commissioner noted that Decker sought an order directing his appointment effective March 31, 1998, which relief “clearly threatens the rights of the incumbent....”

Some of the technical elements to keep in mind in filing Section 310 appeals to the Commissioner of Education are:

1. Appeals must be filed within 30 days “from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown” [8 NYCRR 275.16].

2. If the agency agrees to “reconsider its original determination,” this decision would trigger a “new” statute of limitations period running from the date of the “new” final determination.

3. The appellant is required to file an affidavit proving service of a copy of the petition on the respondents [8 NYCRR 257.9; 276.8]

* Sometimes it is possible to correct this type of problem by filing a new appeal naming, and serving, all necessary parties omitted in the original appeal. Such a filing, however, must still meet the original time limits for perfecting the appeal.
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Using internal investigation reports in civil lawsuits

Using internal investigation reports in civil lawsuits
Ramirez v MBSTOA, 258 A.D.2d 326

It is not uncommon for an employer to undertake an “internal investigation” of an incident involving alleged negligence or misconduct on the part of an employee in the performance of his or her duties. For example, an internal affairs unit of a police department may conduct an “internal investigation” following allegations of negligence or misconduct filed against a police officer.

If the internal investigator finds that the employee “was at fault” and states this conclusion in his or her final report, may a plaintiff use this as an “admission” by the employer in a lawsuit for negligence?

Not necessarily. In Ramirez wanted to use an internal investigation report prepared by MBSTOA investigators that concluded that the MBSTOA’s driver who was involved in a particular accident was “at fault” in his lawsuit against MBSTOA to prove “negligence” on its part. The Appellate Division upheld a lower court’s ruling that Ramirez could not use the investigation report as evidence in the lawsuit that Ramirez brought against MBSTOA for negligence.

The court’s rationale: the admission of the report into evidence “would be unfairly prejudicial” to MBSTOA and “misleading to the jury.” The trial court had barred Ramirez’s introduction of the MBSTOA’s initial internal investigatory report because it found that the investigator’s determination was based on the Authority’s “internal rules and policies” and that those rules and policies “exceeded the applicable common-law negligence standard of care.”

In other words, MBSTOA demanded a higher standard of performance on the part of its drivers than was required under common law. The Appellate Division concurred with the Supreme Court judge’s ruling, observing that the initial report’s conclusion that the MBSTOA driver “was at fault” was changed on review to a finding of “questionable”.

The lesson here is that if an agency wishes to prevent adverse information contained in an internal investigation report from being used in a trial, it must show that the report was prepared in consideration of a standard of care that is higher than that imposed under common [or case] law.
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Filing an employer application for involuntary ordinary disability retirement on behalf of the employee

Filing an employer application for involuntary ordinary disability retirement on behalf of the employee
Oshinsky v NYC Housing Auth., USDC-SDNY

Various state retirement laws authorize an employer to file an application for retirement on behalf of an individual who is unable to perform his or her duties if the individual declines to do so. Can the filing of an employer application, resulting in the involuntary retirement of an employee, constitute an act of unlawful discrimination?

This was one of the issues considered by a federal district court judge in Oshinsky v New York City Housing Authority. The decision suggests that such a filing by an employer application could constitute unlawful discrimination if it is determined that it was in the nature of retaliation.

Abby Oshinsky, a former New York City Housing Authority [NYCHA] police officer, asked a federal district court judge to award her back pay, front pay, and $2 million in damages. She said her Title VII of the 1964 Civil Rights Act [42 USC 2000e] rights were violated as she was subjected to “retaliatory discharge,” unlawful discrimination, and sexual harassment. She also claimed violations of the state Human Rights Law.

Oshinsky had filed nine different complaints over a period of several years, three of which were brought under Title VII. One of her Title VII claims alleged that she had been the victim of a “retaliatory discharge” based on her having been retirement on ordinary disability as a result of NYPD (which had merged with the housing authority police) filing an employer application for retirement on her behalf.

Among the significant events relevant to Oshinsky’s claims:

1. In January 1994 Oshinsky, then an employee of NYCHA, slipped and fell while at work, striking her head. Initially assigned to “limited duty,” in November 1994, NYCHA placed Oshinsky on sick leave based on her “complaining of headaches, inability to concentrate, and feelings of anxiety and depression.”

2. NYCHA police were merged into NYPD while Oshinsky was on sick leave.

3. On August 9, 1995, Oshinsky, now a NYPD employee, applied for accident disability retirement and benefits, complaining of “post-concussion syndrome.”

4. As required by New York City regulations, NYPD then submitted an employer application for ordinary disability on Oshinsky’s behalf.

Oshinsky’s application for accidental disability retirement was rejected after a finding that her disability was not the “natural and proximate result of accidental injury received in the performance of police duty.” However, the application for ordinary disability retirement filed on her behalf by NYPD was approved and in November 1996, she was retired on ordinary disability.

Oshinsky has then filed a complaint with the EEOC contending that her retirement for “ordinary disability” was, in effect, a wrongful discharge. The EEOC issued a Notice of Right to Sue letter on May 28, 1998 but her claims against the NYPD for “retaliatory discharge” were dismissed by Federal District Court Judge Allen G. Schwartz. The court said that in order to establish a prima facie case of retaliation under Title VII and state law, a plaintiff must show three elements: (1) participation in a protected activity known to the defendant; (2) an adverse employment action; and (3) a causal connection between the protected activity and the adverse employment action.

While it was clear that Oshinsky applied for accident disability retirement and benefits based on her alleged “post-concussion syndrome,” in her Title VII complaint she contended that she had been “tricked” into filing the application. Judge Schwartz said that he assumed that for the purpose of deciding the City’s motion for summary judgment that “when the NYPD retired [Oshinsky] based upon a diagnosis of depression, and awarded her a less desirable [ordinary] retirement package, it subjected her to an adverse employment action.” Notwithstanding this, the court said that:

[w]e find, however, that [Oshinsky] has failed to demonstrate a causal connection between the sexual harassment complaints she filed while she was with NYCHA and what she refers to as her “forced” retirement by the NYPD. Plaintiff filed her complaints against NYCHA in February 1990 and January 1992. At the time she came to the NYPD, [Oshinsky] had been out on sick leave since November 1994. She was retired by the NYPD in November 1996, almost five years after the second complaint, without ever actually having performed any work for the NYPD. There is no basis to conclude that [Oshinsky’s] complaints, filed in 1990 and 1992 against one agency, led to her “forced” retirement in 1996 by another agency.

While the court in this case decided that in this instance there was no basis to conclude that NYPD’s filing an application on behalf of Oshinsky for ordinary disability retirement constituted a “retaliatory discharge,” the implication is that such a claim could serve as a basis for a Title VII action and, if proved, redress provided.

Judge Schwartz summarily dismissed the eight other claims filed by Oshinsky alleging violations of Title VII and the State Human Rights Law and various torts. With respect to Oshinsky naming her superior, Richie Aalbue, as a defendant, Judge Schwartz said that “no cause of action can lie against an individual under Title VII.” While the Title VII claims against Aalbue were dismissed, the decision notes that the Second Circuit has held that an individual who actually participates in the conduct giving rise to a discrimination claim may be held personally liable under the New York Human Rights Law, citing Matter of Tomka v Seiler Corporation, 66 F.3d 1295.
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