ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

Aug 16, 2011

Governor Cuomo and CSEA President Danny Donohue announce CSEA Collective Bargaining Agreement ratification

Governor Cuomo and CSEA President Danny Donohue announce CSEA Collective Bargaining Agreement ratification
Office of the Governor

Noting that the new five-year contract avoids the need for broad layoffs while meeting tough fiscal demands, Governor Andrew M. Cuomo and CSEA President Danny Donohue today announced that members of the Civil Service Employees Association (CSEA) have ratified the five year labor contract agreed to in June by CSEA leadership and the Cuomo administration. The agreement marks a milestone accomplishment for collective bargaining and labor-management cooperation in New York State.

The contract includes provisions to keep CSEA-represented state employees on the job delivering essential services to New Yorkers. The new contract freezes base wages for the first three years, and then allows for retention payments – totaling $1,000 – as well as salary increases in each of the last two years. It also calls for a redesign of the employee health care contribution and benefit system.

The terms of the agreement will take effect immediately as the State Legislature already approved the agreement contingent on the CSEA ratification.*

Key elements of the Collective Bargaining Agreement

Base Wages: Under the five-year agreement, there will be no general salary increase in Fiscal Year 2011-12; 2012-13; 2013-14. Employees will receive a 2 percent increase in 2014-15 and 2015-16.




2011-12
2012-13
2013-14
2014-15
2015-16
0%
0%
0%
2%
2%


Health Care System Redesign: The agreement includes a series of reforms in the employee health care system. If adopted by all bargaining units, these reforms would save $1.27 billion. The components of the health system redesign are:

Health Care Contributions: The agreement includes substantial changes to employee health care contributions bringing public employee benefits more in line with the private sector. The agreement reflects a two percent increase in contributions for Grade 9 employees and below, and a six percent increase for Grade 10 employees and above. (Under the agreement, for example, the state will pay 69 percent of family coverage for a Grade 10 employee and above, and the employee will pay 31 percent. The prior split was 75 percent state/25 percent employee. For individual coverage, a Grade 10 employee and above will pay 16 percent and the state share will be 84 percent. The prior split was 10 percent employee/90 percent state).

Health Care Opt Out: For the first time, the state is offering an opt-out option. Health care premiums cost $16,600 for family coverage and $7300 for individual coverage. Employees electing to opt out of the health insurance program must provide proof of alternative coverage and will receive $1000 or $3000 for the cessation of individual or family coverage, respectively.

Health Benefit Redesign: The health benefit plan system of co-pays, deductibles, and programs has been redesigned to encourage healthy choices and control costs of pharmaceutical products. For example, for the first time the plan will cover the use of nurse practitioners and "minute clinics" and encourage employees to use these services when appropriate instead of hospital emergency rooms.

Deficit Reduction Leave: Under the agreement, employees will take a five day unpaid deficit reduction leave during fiscal year 2011-12 and four days unpaid leave during fiscal year 2012-13. The value of the days taken not worked will be deducted from employee pay over the remaining pay periods equally during the fiscal year in which they are taken. Employees will be repaid the value of the 4 days from 2012-13 in equal installments starting at the end of the contract term.

Performance advances, longevity and retention payments: Performance advances and longevity payments will continue to be in effect. Current employees who remain active through 2013 will earn a onetime retention payment of $775 in 2013 and $225 in 2014 in recognition of working without a wage increase for three years.

Patient Abuse Reforms: Both CSEA and the State agree that the system in place for investigating allegations of abuse of patients at state facilities does not adequately protect our most vulnerable population in state care. While CSEA employees are dedicated caretakers, allegations of abuse must be dealt with thoroughly. Under the new contract, the State and CSEA will take a number of steps to improve the quality of care, including creating a completely new Select Panel on Patient Abuse with A-list arbitrators and creating a table of penalties for increasingly severe acts of misconduct, along with a number of other reforms.

Review of Temporary Employees: The State and CSEA will form a joint committee to review the use of temporary employees and contractors and make recommendations to the Division of Budget and Department of Civil Service.

Layoff Protection: CSEA employees will receive broad layoff protection for fiscal year 2011-12 and 2012-13 arising from the $450 million budget gap. Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the State's fiscal circumstances are not covered by this limitation.

* Civil Service Law §204-a.provides, in pertinent part, that a collective bargaining agreements between public employers and employee organizations include the following provision:

1. Any written agreement between a public employer and an employee organization determining the terms and conditions of employment of public employees shall contain the following notice in type not smaller than the largest type used elsewhere in such agreement: "It is agreed by and between the parties that any provision of this agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval [emphasis supplied].

Governor Cuomo and CSEA President Danny Donohue announce CSEA Collective Bargaining Agreement ratification

Governor Cuomo and CSEA President Danny Donohue announce CSEA Collective Bargaining Agreement ratification
Office of the Governor

Noting that the new five-year contract avoids the need for broad layoffs while meeting tough fiscal demands, Governor Andrew M. Cuomo and CSEA President Danny Donohue today announced that members of the Civil Service Employees Association (CSEA) have ratified the five year labor contract agreed to in June by CSEA leadership and the Cuomo administration. The agreement marks a milestone accomplishment for collective bargaining and labor-management cooperation in New York State.

The contract includes provisions to keep CSEA-represented state employees on the job delivering essential services to New Yorkers. The new contract freezes base wages for the first three years, and then allows for retention payments – totaling $1,000 – as well as salary increases in each of the last two years. It also calls for a redesign of the employee health care contribution and benefit system.

The terms of the agreement will take effect immediately as the State Legislature already approved the agreement contingent on the CSEA ratification.*

Key elements of the Collective Bargaining Agreement

Base Wages: Under the five-year agreement, there will be no general salary increase in Fiscal Year 2011-12; 2012-13; 2013-14. Employees will receive a 2 percent increase in 2014-15 and 2015-16.




2011-12
2012-13
2013-14
2014-15
2015-16
0%
0%
0%
2%
2%


Health Care System Redesign: The agreement includes a series of reforms in the employee health care system. If adopted by all bargaining units, these reforms would save $1.27 billion. The components of the health system redesign are:

Health Care Contributions: The agreement includes substantial changes to employee health care contributions bringing public employee benefits more in line with the private sector. The agreement reflects a two percent increase in contributions for Grade 9 employees and below, and a six percent increase for Grade 10 employees and above. (Under the agreement, for example, the state will pay 69 percent of family coverage for a Grade 10 employee and above, and the employee will pay 31 percent. The prior split was 75 percent state/25 percent employee. For individual coverage, a Grade 10 employee and above will pay 16 percent and the state share will be 84 percent. The prior split was 10 percent employee/90 percent state).

Health Care Opt Out: For the first time, the state is offering an opt-out option. Health care premiums cost $16,600 for family coverage and $7300 for individual coverage. Employees electing to opt out of the health insurance program must provide proof of alternative coverage and will receive $1000 or $3000 for the cessation of individual or family coverage, respectively.

Health Benefit Redesign: The health benefit plan system of co-pays, deductibles, and programs has been redesigned to encourage healthy choices and control costs of pharmaceutical products. For example, for the first time the plan will cover the use of nurse practitioners and "minute clinics" and encourage employees to use these services when appropriate instead of hospital emergency rooms.

Deficit Reduction Leave: Under the agreement, employees will take a five day unpaid deficit reduction leave during fiscal year 2011-12 and four days unpaid leave during fiscal year 2012-13. The value of the days taken not worked will be deducted from employee pay over the remaining pay periods equally during the fiscal year in which they are taken. Employees will be repaid the value of the 4 days from 2012-13 in equal installments starting at the end of the contract term.

Performance advances, longevity and retention payments: Performance advances and longevity payments will continue to be in effect. Current employees who remain active through 2013 will earn a onetime retention payment of $775 in 2013 and $225 in 2014 in recognition of working without a wage increase for three years.

Patient Abuse Reforms: Both CSEA and the State agree that the system in place for investigating allegations of abuse of patients at state facilities does not adequately protect our most vulnerable population in state care. While CSEA employees are dedicated caretakers, allegations of abuse must be dealt with thoroughly. Under the new contract, the State and CSEA will take a number of steps to improve the quality of care, including creating a completely new Select Panel on Patient Abuse with A-list arbitrators and creating a table of penalties for increasingly severe acts of misconduct, along with a number of other reforms.

Review of Temporary Employees: The State and CSEA will form a joint committee to review the use of temporary employees and contractors and make recommendations to the Division of Budget and Department of Civil Service.

Layoff Protection: CSEA employees will receive broad layoff protection for fiscal year 2011-12 and 2012-13 arising from the $450 million budget gap. Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the State's fiscal circumstances are not covered by this limitation.

* Civil Service Law §204-a.provides, in pertinent part, that a collective bargaining agreements between public employers and employee organizations include the following provision:

1. Any written agreement between a public employer and an employee organization determining the terms and conditions of employment of public employees shall contain the following notice in type not smaller than the largest type used elsewhere in such agreement: "It is agreed by and between the parties that any provision of this agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval [emphasis supplied].

Appointing authority must have the transcript of the disciplinary hearing available to it before it can make its determination


Appointing authority must have the transcript of the disciplinary hearing available to it before it can make its determination
Ernst v Saratoga County, 234 AD2d 766

In Ernst the court annulled a disciplinary determination dismissing the employee because each individual member of the appointing authority, a board, was not given a complete copy of the Section 75 hearing transcript for review prior to the board makings its determination.

The court said that the entire matter should be returned to the board for a de novo determination based on the record made during the disciplinary proceeding.

The appointing authority, after reconsidering the matter, again found Ernst guilty and, again, imposed the penalty of dismissal. The determination was sustained on appeal from the Board’s subsequent decision [Ernst v Saratoga County, 251 AD2d 866].

Unilateral transfer of unit work


Unilateral transfer of unit work
City of Rome v PERB, 283 AD2d 817

The Civil Service Employees Association, Local 1000, AFSCME, AFL-CIO Inc., City of Rome Unit [CSEA], filed an improper practice charge with the Public Employment Relations Board [PERB] alleging that Rome had impermissibly assigned unit work to nonunit employees without first bargaining with CSEA. PERB determined that Rome had violated Section 209-a(1)(d) of the Civil Service Law when it unilaterally transferred the responsibilities of its acting purchasing agent Marilyn McLiesh to others.

Rome was ordered to immediately transfer certain duties previously performed by McLiesh to the unit represented by CSEA, offer McLiesh reinstatement to her former position and make McLiesh whole for lost wages, benefits and conditions of employment from the effective date of her separation from service to the effective date of the offer of reinstatement.

The Appellate Division set out the following critical points in reviewing Rome's petition to vacate PERB's determination:

1. From October 1986 until December 1995, McLiesh served as Rome's deputy assistant purchasing agent. In December 1995, McLiesh was appointed acting purchasing agent after the Purchasing Agent resigned.

2. In January 1998, Rome abolished its purchasing agent position and transferred some of the work previously performed by McLiesh to employees in the Oneida County Purchasing Department. The tasks not transferred to the County were assigned to Rome's Treasurer's office. It then terminated McLiesh.

Rome challenged PERB's directive providing for McLiesh's reinstatement and the award of back pay as violative of Article V, Section 6 of the State Constitution.

Supreme Court ruled that McLiesh's continuation in service as an acting purchasing agent beyond the three-month period for temporary appointments permitted by Civil Service Law Section 64(1) violated Article V, Section 6 and thus PERB exceeded its authority by directing McLiesh's reinstatement. The Court annulled that part of PERB's decision that directed Rome to reinstate McLiesh with back pay and benefits. CSEA and PERB appealed.

The Appellate Division commenced its analysis of the case by noting that the transfer of McLiesh's responsibilities to nonunit workers did not, of itself, violate any law. Rather, it was Rome's failure to negotiate the transfer of such duties with PERB that violated Civil Service Law Section 209-a(1)(d).

The court said that its prior decision in Village of Scotia v PERB, 241 AD2d 29, was relevant in this case. In Scotia the Appellate Division held that although an individual “had been impermissibly demoted from police sergeant to patrolman,” PERB could not direct that he be restored to his prior position because he was not on a current eligibility list for appointment to police sergeant.

Here, said the court, the record showed that although McLiesh had been on an eligible list for the position of purchasing agent, that list expired on April 25, 1987 and would, in any event, have expired by operation of law at the end of four years. The Appellate Division's conclusion:

Since McLiesh took no subsequent test for purchasing agent and there was on no eligible list for the title, “it necessarily follows that, at the expiration of three months following McLiesh's appointment as 'acting' purchasing agent' her employment in that position violated the requirement of Article V, Section 6.”

In the court's view, “PERB's effort at justifying its remedial order by pointing out that it did not restore McLiesh to the position of purchasing agent but, rather, to her prior position of “acting” purchasing agent, fails to recognize that [her retention in] the latter position was itself violative of NY Constitution, Article V, Section 6.” Accordingly, PERB's directing Rome to reinstate McLiesh with back salary was not viewed as lawful.
It should be noted that McLiesh died while this appeal was pending. The court said that her “unfortunate death ... did not render the appeal moot. Notably, an award of back pay, which is primarily at issue here, would inure to the benefit of McLiesh's estate.”

Special Errand exception - Workers' Compensation eligibility for injury suffered going to or from work


Special Errand exception - Workers' Compensation eligibility for injury suffered going to or from work
Dziedzic v Orchard Park CSD, 283 AD2d 878

A kindergarten teacher employed by the Orchard Park Central School District died as the result of an automobile accident that occurred while she was traveling to school.

Just prior to the accident, the teacher had stopped at a store to purchase items to be used by her students in a classroom project, as she had done many times before during her long tenure with the school district. The store was along Dziedzic's regular route to school and the accident happened after she had exited the store's parking lot and was on her way to her school.

The Workers' Compensation Board ruled that accident arose out of and in the course of the teacher's employment and said that the payment of workers' compensation death benefits was appropriate under the circumstances. The district and its workers' compensation carrier had controverted the claim* and subsequently appealed the Board's decision.

The Appellate Division pointed out that the general rule in such situations is that injuries sustained during travel to and from work are not compensable under the Workers' Compensation Law. However, the court quickly noted, this general rule is subject to a number of exceptions, including an exception for an injury or death that occurs in the course of an individual performing a “special errand.”

The “special errand” exception is triggered when it is determined that the employee's travel serves a purpose of the employer. Injuries sustained by workers in the course of such travel may be compensable. There is a “two-prong” test that is applied in making such a determination. The special errand exception is applicable only if it is determined that the employer both:

1. Encouraged the errand; and

2. Obtained a benefit from the employee's performance of the errand.

The Appellate Division said that there was “evidence in the record that Dziedzic and her fellow kindergarten teachers at the school employed a hands-on, developmental approach to teaching, with the students involved in activities which included projects that required the purchase of materials that were not available in the school.” The district, said the court, was aware of the activities and recognized them as extra efforts or enhancements in the teachers' annual evaluations.

Further, said the court, the record indicated that the district knew of this practice by their teachers which involved their routinely purchasing classroom project materials outside the school to facilitate their hands-on approach to teaching and the district “neither discouraged nor placed any limitations on the purchases which, depending upon the dollar amount, were subject either to reimbursement or the use of a purchase order.”

The Appellate Division sustained the Workers' Compensation Appeals Board's conclusion that Dziedzic was engaged in a “special errand” when she was involved in this fatal accident as there was substantial evidence demonstrating that the employer not only benefited from the teachers purchases of materials outside the school, but also encouraged those purchases.

In Dziedzic the employee was on her way to work when she was involved in the accident. Does the same rule apply in cases where the individual is injured after he or she leaves work?

Neacosia v NY Power Authority, 85 NY2d 471, decided by the Court of Appeal, involved such a variation of the facts -- the employee was injured after he left work and while he was driving to his home.

Michael Neacosia, a New York Power Authority security officer, was involved in an automobile accident after he stopped on his way home from work to leave his work uniform at a cleaning shop. The basic question: Was Neacosia acting within the scope of his employment and thus was eligible for workers' compensation benefits when he suffered his injuries?

According to the decision, Neacosia was required to keep his “employer provided uniforms” clean and presentable. To this end, the Authority had made arrangements with a number of cleaning establishments to clean these uniforms and to bill the agency for their services. In the alternative, security personnel could arrange for the cleaning themselves and submit bills for the cost of the cleaning to the Authority.

The critical elements in this case:

1. Neacosia completed his shift, left work, and in the course of driving home, stopped to deliver his uniforms to one of the cleaners recommended by the Authority. After leaving his uniform at the cleaning establishment, Neacosia continued to head home along his usual route.

2. After leaving the cleaners, Neacosia was involved in an automobile accident in which he sustained severe injuries.

The Authority controverted his application for workers' compensation benefits.

Applying the special exceptions rule, the Court of Appeals sustained the Workers' Compensation Board's ruling that Neacosia was engaged in a “special errand” at the time he was injured and thus eligible for Workers' Compensation benefits.

* In the event the employer and, or, the employer’s insurer challenges a Workers’ Compensation Award, it has “controverted the claim.”

Noncompetitive promotion to a position in the competitive class


Noncompetitive promotion to a position in the competitive class
Rockland County Patrolmen's Benevolent Association, Inc. v. Prendergast, 25 AD3d 615

Section 52.7 of the Civil Service Law provides:

7. Promotion by non-competitive examination. Whenever there are no more than three persons eligible for examination for promotion to a vacant competitive class position, or whenever no more than three persons file application for examination for promotion to such position, the appointing officer may nominate one of such persons and such nominee, upon passing an examination appropriate to the duties and responsibilities of the position may be promoted, but no examination shall be required for such promotion where such nominee has already qualified in an examination appropriate to the duties and responsibilities of the position.*

The Rockland County PBA sued in an effort to annul the “non-competitive permanent appointment” of William Sherwood to the position of Chief of Police, Town of Clarkstown Police Department. Sherwood apparently had taken and passed a civil service examination for Police Chief but that list had expired prior to the date he was selected for appointment to the title.

The Appellate Division ruled that Sherwood’s promotion to the position pursuant to Civil Service Law Section 52.7 violated Section 4 of the Rockland County Police Act (RCPA).

RCPA Section 4 provides that: "[n]otwithstanding any other special or general laws to the contrary, such promotion examination shall be competitive examinations held by the state civil service commission regardless of the number of candidates eligible for such promotion."**

The Appellate Division said that although Civil Service Law Section 52.7 authorizes the non-competitive appointment of police officers for promotion, this provision is inconsistent with RCPA Section 4, as Section 4, which in this situation controls, requires competitive examinations for promotion regardless of the number of eligibles or applicants for promotion to the title.” ***

* This provision reflects the so-called “rule of three” whereby the appointing authority may select from among the three candidates scoring highest on the eligible list.

** In the words of the Appellate Division, the RCPA is a "special act which takes precedence over inconsistent provisions of the Civil Service Law," and "was intended to supersede any general statute with regard to the establishment, organization and operation of police departments in Rockland County."

*** If Sherwood was the single candidate eligible for promotion to chief at the time, it would appear that permanently appointing him to the chief title pursuant to CSL 52.7 would not, under these circumstances, satisfy RCPA Section 4.

Aug 15, 2011

New York State’s Governor Cuomo signs ethics reform legislation

New York State’s Governor Cuomo signs ethics reform legislation
Source: Office of the Governor

Characterized as a new law addressing major inadequacies in the current ethics system designed to restore public trust in government, on August 15, 2011 Governor Andrew M. Cuomo signed into law the New York State "Public Integrity Reform Act of 2011," [Chapter 399 of the Laws of 2011].

The Governor said that this new statute establishes “unprecedented transparency, strict disclosure requirements, and a strong independent monitor with broad oversight of New York State government.”

According to the Governor’s office, the Public Integrity Reform Act of 2011 includes the following:

Greater financial disclosure: Financial disclosure statements filed with the new Joint Commission on Public Ethics from elected officials will now be posted on the internet and the practice of redacting the monetary values and amounts reported by the filer will be ended.

The Act also includes greater and more precise disclosure of financial information by expanding the categories of value used by reporting individuals to disclose the dollar amounts in their financial disclosure statements. It also requires disclosure of the reporting individual's and his or her firm's certain outside clients and customers doing business with, receiving grants or contracts from, seeking legislation or resolutions from, or involved in cases or proceedings before the State as well as certain of such clients that were brought to the firm by the public official.

Increased access to information concerning who is appearing before a State entity and why: The Act establishes a new database of any individual or firm that appears in a representative capacity before any state governmental entity.

Additional disclosures by registered lobbyists: The bill expands lobbying disclosure requirements, including the disclosure by lobbyists of any "reportable business relationships" of more than $1,000 with public officials. It also expands the definition of lobbying to include advocacy to affect the "introduction" of legislation or resolutions, a change that will help to ensure that all relevant lobbying activities are regulated by the new Joint Commission.

Forfeiture of pensions by public officials convicted of a felony: Certain public officials who commit crimes related to their public offices may have their pensions reduced or forfeited in a new civil forfeiture proceeding brought by the Attorney General or the prosecutor who handled the conviction of the official. 

The bill amends the Retirement and Social Security Law [RSSL] and the Criminal Procedure Law requiring that prior to trial, and before accepting a defendant's plea to a count, the court must individually advise the defendant, on the record, that if at the time of the alleged felony crime the defendant was a public official, the defendant's plea of guilty and the court's acceptance thereof or conviction after trial may result in proceedings for the reduction or revocation of such defendant's pension. 

The court must individually advise the defendant, on the record, that if at the time of the alleged felony crime the defendant as a public official, as defined in division six of section one hundred fifty-six of the RSSL, the defendant's plea of guilty and the court's acceptance thereof or conviction after trial may result in proceedings for the reduction or revocation of such defendant's pension pursuant to article three-B of the RSSL.

A new joint Commission on Public Ethics: The Joint Commission on Public Ethics will replace the existing Commission on Public Integrity with jurisdiction over all elected state officials and their employees, both executive and legislative, as well as lobbyists.

Clarifying independent expenditures for elections: The Act requires the state board of elections to issue new regulations clarifying disclosure of Independent Expenditures.

Increased penalties for violations: The Act substantially increases penalties for violations of the filing requirements and contribution limits in the Election Law, and provides for a special enforcement proceeding in the Supreme Court. The bill also increases penalties for violations of certain provisions of the state's code of Ethics that prohibits conflicts of interest.

State Comptroller concludes that "cyber security investments are cost effective" for governmental agencies


State Comptroller concludes that "cyber security investments are cost effective" for governmental agencies
Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli Monday reminded local governments and school districts that they can save money and trouble by investing in cyber security. DiNapoli released a report on Information Technology security that detailed local government security breaches and identified preventive measures.

Concerning payments for travel from other than the employer


Concerning payments for travel from other than the employer
Conflicts of Interest Bd. v. Markowitz (in PDF), OATH Index No. 1400/11

New York City’s Conflicts of Interest Board adopted OATH Administrative Law Judge Kevin F. Casey’s finding that the Brooklyn Borough President violated the City’s Conflicts law when he accepted payments from two foreign governments and a not-for-profit organization to cover travel costs for his wife when she accompanied him on two trips to Turkey and one trip to the Netherlands.

The Board did not dispute that the Borough President conducted official business on the trips and could accept free airfare and lodging for himself.

In contrast, because the Borough President’s wife did not have an official role in the Borough President’s office, he would have to pay for her travel expenses.

The Board adopted Judge Casey’s recommended penalty of a $20,000 fine. 



Employee required to provide adequate notice of in loco parentis status of an individual if seeking FMLA leave


Employee required to provide adequate notice of in loco parentis status of an individual if seeking FMLA leave
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

The FMLA allows an eligible employee of a covered employer to take FMLA leave to care for a covered family member, including a parent.  A "parent" includes a biological, adoptive step or foster mother or father, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter (e.g., under 18 years of age, or over 18 years of age an incapable of self-care due to a disability).  29 CFR 825. 122(b).  In loco parentis means that the individual had day-to-day responsibility to care for or financially support the employee when the employee was a son or daughter.  29 CFR 825.122(c)(3). 

To invoke the protections of the FMLA, the employee must notify his or her employer of the need for FMLA-qualifying leave.  The FMLA's notice requirements are not onerous.  Basically, the employee must provide adequate information to apprise the employer that the leave may be in need of FMLA leave. An employee need not invoke the "FMLA" by name.  If the employer needs more information to determine whether the leave is covered by the FMLA, they are required to inquire further.  

In Ruble v. American River Transportation Co., No. 2:10 CV 24 DDN (E.D. Mo. June 29, 2011), Jack Ruble notified his supervisor (the boat captain) that his 90-year-old grandmother was ill and that he may need to leave the boat during the voyage.  It was uncontested that Ruble's grandmother took exclusive care of Ruble when he was a child for several years. 

During the voyage, Ruble was notified by his family that his grandmother had been diagnosed with terminal cancer and was not expected to live more than a week.  That day, he told the boat captain that his grandmother had terminal cancer, that she was not expected to live more than a week, and that he wanted to leave the boat.  Ruble and the crew lived on the boat during the voyage.  Under Company policy, leaving the boat during a voyage without approval was grounds for removal.  The boat captain referred Ruble to the Company Personnel Manager, whom Ruble called and explained the situation. 

Ruble told the Personnel Manager that his grandmother was ill and he needed to go see her before she died because she had taken care of him.  He delayed leaving the vessel for a few days while the Company tried to secure a replacement.  The Company asked Ruble to wait one more day for the replacement before leaving the boat.  Ruble declined, and flew home.  He did not, however, see his grandmother at the hospital until the following day. 

Ruble's grandmother was discharged from the hospital a few days after he arrived.  She stayed with her daughter, who was primarily responsible for her care.  Ruble's grandmother did not live with him at his home near or before her death.  Ruble stayed by his grandmother's side throughout her hospital stay, providing psychological comfort, and care.  He also spent almost every day with his grandmother while at Shipley's house.  Ruble's grandmother died on May 18.  

Ruble was terminated from employment for leaving the boat without authorization during the voyage.  He sued, alleging that his termination violated the FMLA.  The Company moved for summary judgment to dismiss the case, arguing that Ruble failed to provide adequate notice that the leave may be FMLA-qualifying. The Company argued that Ruble failed to adequately notify it that his grandmother was his in loco parentis parent while Ruble was a child.  Absent an in loco parentis relationship, the FMLA does not entitle an employee to take leave to care for a grandparent.

The Court opined:

When an employee seeks to invoke FMLA benefits based on an in loco parentis relationship, the employee must provide his employer with sufficient facts indicating that such a relationship may exist. See Sherrod v. Philadelphia Gas Works, 57 Fed. Appx. 68, 72-73 (3d Cir. 2003)("Since [the employee] did not initially tell her employer that her grandmother had raised her, she failed to sufficiently explain her reasons for the needed FMLA."); Abousaidi v. Mattress Discounters Corp., No. 1:05CV1142 (JCC), 2005 WL 3797366, at *2 (E.D. Va. Dec. 8, 2005).  Otherwise, the employer could not know that the employee's leave may be secured by the FMLA. See Wierman,638 F.3d at 1000 (the employer's duties do not arise until the employee gives sufficient information to who that he may be in need of FMLA leave).

The Court found that Ruble's assertion that he told the Personnel Manager that his grandmother "took care of him," coupled with his more effusive affidavit on the subject, created a genuine issue of material fact regarding the adequacy of Ruble's notice sufficient to defeat the Company's motion for summary judgment. 

Mr. Bosland comments:  To secure the benefits and protections of the FMLA, an employee requesting FMLA leave to care for an in loco parentis parent must articulate some facts to put the employer on reasonable inquiry notice that the leave might be FMLA qualifying.  An in loco parentis parent does not have to involve a legal or biological relationship.  All that is required is that the individual had responsibility to care for and/or financially support the employee when the employee was a son or daughter within the meaning of the FMLA.  Absent a biological or legal relationship, it may not be obvious to an employer that a grandparent, older sibling, uncle, aunt, or someone else cared for the employee when the employee was a child.  While an employee need not affirmatively assert an in loco parentis relationship (although they certainly could do so), the do need to articulate some facts suggesting an in loco parentis relationship.  If the employer needs additional information to confirm an in loco parentis relationship, the burden is on the employer to inquire further.

As demonstrated in Ruble, the notice bar on this issue is relatively low (e.g., my grandma took care of me).  It is not, however, non-existent.  Employers, in turn, must be alert to in loco parentis relationships as a qualifying basis for FMLA leave.  When in doubt, ask the employee to clarify the nature of what might be an in loco parentis relationship.    
  
 

Employee dismissed for alleged sexual harassment disqualified for unemployment insurance benefits Matter of Ferro, 283 AD2d 828


Employee dismissed for alleged sexual harassment disqualified for unemployment insurance benefits
Matter of Ferro, 283 AD2d 828


The Ferro decision demonstrates that engaging in sexual harassment will disqualify an employee for unemployment insurance benefits if he or she is terminated as a result of such misconduct.

Albert J. Ferro was dismissed from his position for allegedly violating his employer's policy prohibiting sexual harassment. According to the decision, a witness testified that he had observed Ferro, a management trainee, grab a female employee from behind and then acted in a sexual manner. This resulted in Ferro being fired from his position.

Ferro's application for unemployment insurance benefits was rejected. The Unemployment Insurance Appeals Board ruled that Ferro was ineligible for unemployment insurance benefits because his employment was terminated due to his misconduct. The Appellate Division, Third Department, sustained the Board's determination. The court pointed out that “offensive behavior in the workplace can constitute disqualifying misconduct ... as can conduct that is detrimental to the employer's interest.”

The rationale underlying the ruling: employers may be held “vicariously liable” as the result of the sexual harassment of subordinates by its management employees. Accordingly, such misconduct “is detrimental to the employer's interests.”

The date on which a statute of limitations commences "running" depends on the nature of the challenge to an administrative action


The date on which a statute of limitations commences "running" depends on the nature of the challenge to an administrative action
Roenke v SUNY, 284 AD2d 781

Whether or not an Article 78 action appealing a particular administrative decision is timely depends on the nature of the action being challenged, as the Roenke case demonstrates.

In December 1997, SUNY advised Henry M. Roenke, that effective January 1, 1998, it would no longer would permit him to make contributions to his tax deferred custodial account although it would allow him to make contributions to various tax sheltered annuities. Roenke objected, but his August 1998 petition seeking a court order compelling SUNY to designate a company or companies from which he could purchase shares in a tax deferred custodial account was dismissed as untimely. He appealed, contending that his petition was, in fact, timely filed because it was submitted within four months of SUNY's rejection of his demand that SUNY reinstate purchasing such shares.

According to the Appellate Division, if Roenke's action was in the nature of mandamus to compel SUNY to perform a statutory duty, the Statute of Limitations does not begin to run until an appropriate demand is made and refused. If, on the other hand, Roenke’s petition involves a challenge to a discretionary act by SUNY rather than its complying with a statutory duty, the Statute of Limitations begins to run from the date that the determination became final and binding upon on him.

Roenke's basic argument: Section 399 of the Education Law mandates that SUNY promulgate a list of companies from which shares in a custodial account may be purchased. The Appellate Division disagreed, holding that because there was nothing in Section 399 compelling SUNY to establish custodial account programs in the first instance, establishing such a program was clearly a discretionary action on the part of SUNY.

The opinion notes that the fact “[t]hat SUNY is permitted but not required to establish such programs is made even clearer by the language contained in Education Law Section 399(2), which begins, “[w]here the employer has established a special annuity and/or custodial account program authorized by this article”.

Accordingly, said the court, the four-month Statute of Limitations for challenging SUNY's administrative decision to discontinue making contributions to Roenke's custodian account effective January 1, 1998 began to run when Roenke was told of this change in December 1997. Thus, said the court, Roenke's filing his complaint in August 1998 “was plainly is time barred.” 

Determining if a disability was “job related”


Determining if a disability was “job related”
Roach v McCall, 284 AD2d 746

V. Robert Roach, Town of Webb Union Free School District head bus driver, applied for accidental disability retirement benefits based on injuries to his right shoulder he claimed resulted from employment-related accidents in 1985, 1995 and 1996. These accidents, he contended, incapacitated him from performing his head bus driver duties. The Comptroller rejected Roach's application after concluding that his condition did not result from employment-related accidents.

John Cambareri, a board-certified orthopedic surgeon, testifying on behalf of the State and Local Employees' Retirement System, said that, in his opinion, Roach's disability was the result of traumatic arthritis in his right shoulder stemming from a shoulder dislocation suffered by Roach as a teenager. Understandably, Roach's expert medical witnesses testified to the contrary.

The Appellate Division sustained the Comptroller's rejection of Roach's application, holding that where there is substantial evidence to support his decision, “it lies within the exclusive authority of the Comptroller to evaluate divergent medical opinions in the process of determining whether a claimant is entitled to accidental disability retirement benefits.”

Aug 13, 2011

Decisions of interest involving Government and Administrative Law


Decisions of interest involving Government and Administrative Law
Source: Justia August 12, 2011

Decisions of interest involving Government and Administrative Law


Decisions of interest involving Government and Administrative Law
Source: Justia August 12, 2011

Out of title work assignment


Out of title work assignment
Murphy v Herik, NYS Supreme Court [Not selected for publications in the Official Reports]

Out-of-title work usually refers to an employer assigning an individual to perform the work typically part of the duties of the incumbent of a higher-level position. Section 61.2 of the Civil Service Law provides that:

Prohibition  against out-of-title  work. No person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out-of-title work.

Many collective bargaining agreements require that if the employer assigns an individual to perform "out-of-title" work for more than a designated period of time, he or she is to be compensated at the appropriate pay level of the higher position.

Detailing is used to describe a form of assigning an individual to perform "out-of-title" frequently encountered in law enforcement organizations. Its most common manifestation: assigning a police patrol officer to perform the duties of a detective or investigator. Officers detailed to perform the duties of a detective or an investigator typically are not permanently appointed to the position. Section 58.4.c(ii) of the Civil Service Law was enacted to address this practice and provides that:

In any jurisdiction, other than a city with a population of one million or more, which does not administer examinations for designation to detective or investigator, any person who has received permanent appointment to the position of police officer or deputy sheriff and is temporarily assigned to perform the duties of detective or investigator shall, whenever such assignment to the duties of a detective or investigator exceeds eighteen months, be permanently designated as a detective or investigator and receive the compensation ordinarily paid to persons in such designation [emphasis supplied].

By its terms, Section 58.4.c(11) does not cover New York City police officers. However, Section 14-103(b)(2) of the City's Administrative Code tracks Section 58.4.c[ii] and provides that a "permanent police officer who temporarily perform the functions of what is otherwise considered to be detective work for periods of 18 months or more are to be appointed as detectives and be compensated as such."

Michael Murphy, a New York City police officer, was assigned to the Harbor Unit, Vessel Theft Team, in January, 1997. His duties included the investigation of stolen marine equipment; returning stolen property to its rightful owner and maintaining a working relationship with insurance companies for the purpose of identifying insurance fraud. After he had been performing these duties for over three years, Murphy's commanding officer, John Cassidy, recommended that Murphy be appointed to third-grade detective. Cassidy's justification for his recommendation: Murphy's primary responsibilities were those of a detective.

The Department rejected Cassidy's recommendation and Murphy filed a grievance challenging its decision. The Department denied Murphy's grievance and he commenced an Article 78 proceeding in March of 2001 seeking a court order directing his appointment as a detective.

The Department asked the court to dismiss Murphy's petition. It contended that its rejecting Murphy's appointment as a detective was justified because the Harbor Unit was specifically excluded from the career-path for detective by a lawful Department policy. Accordingly, the Department argued, Murphy can not be deemed to have been performing detective work as part of the Harbor Unit and therefore he was not eligible for appointment as a detective pursuant to Section 14-103(b)(2) of the Code.

The Department also argued that Murphy was aware of the fact that the Harbor Unit was not on the career path for detective when he accepted the assignment.

Murphy, on the other hand, contended that he was eligible for appointment as a detective pursuant to the Code, citing Ryff v Safir, 264 AD2d 349, as authority for this claim. In Ryff, the Appellate Division ruled that the fact that the Harbor Unit was not included in the Department's career-path for detective did not exempt it from the provisions of Administrative Code Section 14-103(b)(2).


Supreme Court Justice Madden rejected the Department's argument that appointment as a detective does not depend on the actual work performed but rather on whether or not the position is on the career path for detective. Justice Madden said that the legislative intent in both Section 58.4 of the Civil Service Law and Section 14-103(b)(2) of the City's Administrative Code "was to prevent the department, for budgetary reasons, from using non-detective track officers in detective track positions, while denying the officers the benefit of those positions."

In effect, the court decided that the Department's justification for its action placed form over substance. As Murphy's duties were substantially similar to that of detective, Justice Madden ruled that Murphy was entitled to appointment as a detective pursuant to Section 14-103(b)(2). Justice Madden pointed out that there was no dispute concerning Murphy's performing criminal investigative duties, noting that Murphy was awarded "Investigator of the Year" from the International Association of Marine Investigators.

Deciding that Department's ruling that Murphy was precluded from being appointed as detective simply because his position was not included in its designated "career path" for detectives was arbitrary and capricious, Justice Madden granted Murphy's petition and, in addition, ruled that Murphy was entitled to compensation as a detective beginning 18 months subsequent to his original appointment to the Harbor Unit.

The lesson of the Murphy decision is that employees may not required to perform out-of-title duties except in cases involving a temporary emergency. If they are assigned, or permitted, to perform out-of-title duties when there is no temporary emergency, the employer may be held liable to pay any resulting salary differential.

One of the administrative procedures available to an individual who believes that he or she is being to required to perform higher level "out-of-title" work is to request that his or her position be reclassified to the higher level title -- i.e., a position allocated to a higher salary grade.

This is usually accomplished by filing a request for reclassification of the position with the responsible civil service commission or department.

The employer, also, may initiate a request for reclassification of a position. In some cases, the employer and the employee may file a "joint" application to have the position reclassified. Concerning a related point, classification and reclassification of a position focuses on the duties of a position while allocation or reallocation of a position is concerned with placing the position in the proper pay grade or setting its appropriate salary rate.

However, approval of an "out-of-title" reclassification application does not mean the individual has the right to be continued in the reclassified title. If a position in the competitive class is reclassified, the individual will have to qualify for permanent appointment to the new title by examination, despite the fact that he or she had been "performing the duties of the higher level position" and was instrumental in having it reclassified. The same applies with respect to qualifying for appointment to a higher-level position in the noncompetitive class following reclassification of the lower level position.

In some instances this could result in the individual's being "reclassified out of his or her job." Some modest protections, however, may be available to the individual whose position has been reclassified to avoid this result, at least temporarily. For example, insofar as "employees of the State" are concerned, the State Civil Service Commission's Rules, [4 NYCRR 4.1(d) provide that:

A promotion eligible list shall not be certified for filling a permanent vacancy created by upward reclassification of a permanently encumbered position where promotion from such list would require the layoff of a permanent employee or the reassignment of a permanent employee to a different geographical location; but this provision shall not apply if the incumbent whose position was reclassified has, following such reclassification, twice failed to qualify for promotion to the reclassified position].

4 NYCRR 4.1(e) provides similar protections with respect to the certification and use of an open competitive eligible list.

Many municipal civil service commissions have adopted similar rules.

N.B. The Rules of the State Civil Service Commission specifically provide that "[e]xcept as otherwise specified in any particular rule, these rules shall apply to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service."

In another New York City Police Department [NYPD] "service as a detective" case, Finelli v Bratton, App. Div., First Department, the issue was whether it was arbitrary and capricious for NYPD to determine that service by former Transit Authority [TAPD] police officer Nicholas G. Finelli did not qualify as "detective track" service.

According to the decision, such credit was properly denied since it was not established that Finelli performed investigative duties comparable to those performed in units given a detective track status after the TAPD's merger with the NYPD. In addition, the court said that detective track credit was properly refused for periods during which police officers were suspended from duty or on restricted, limited or modified duty.

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NYPPL Publisher Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.

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