New York Public Personnel Law

Feb 3, 2016

Body piercings and dress codes

Body piercings and dress codes

From the Blogs - Posted by Employment Law News, WK WorkDay, A service provided by Wolters Kluwer Legal & Regulatory U.S.

Noting that during the 21st century, body piercings, tattoos, and long beards have come into vogue and become commonplace, and arbitrator recently sustained a grievance filed by a union member seeking to quash her employer’s written disciplinary warnings issued for her failure to remove facial piercings (Amalgamated Transit Union, Local 1070 and Indianapolis Public Transportation Corp., Nov. 18, 2015, Daniel Zeiser, Arbitrator).

In 2009, prior to being hired as a bus driver in 2013, the grievant elected to receive three micro dermal piercings in her cheek. The process involved the insertion of an anchor through a hole in the cheek created by a thin needle. The anchor included a flat base and an arm that extended through the skin, into which could be inserted a jewel or a stone.

She chose to undergo this permanent process because it reminded her of something her mother wore when she was young. Her cheek, however, rejected one of the piercings, leaving two implants and a scar where the third implant failed.

The bus company that hired her had a Dress and Personal Appearance Policy that applied to employees with regular public contact, to project a professional image to riders and to the general public. The company updated its policy in 2014, which included an accessories section that limited the size of earrings that could be worn and limited earrings to one per ear, but it said nothing about face piercings. In September of 2014, however, the employer issued a notice about winter uniforms that included a ban on all facial piercings. Following the issuance of the September ban on facial piercings, the employer ordered the employee to remove her piercings. When she failed to do so, the employer issued a written warning. She failed to remove the facial implants because they could not easily be removed like other piercings, requiring instead plastic surgery at great expense. She then filed a grievance contesting the employer’s decision.

An employer is permitted to adopt rules of personal appearance as long as the rules have a reasonable relationship to (1) the employer’s image or (2) health and safety considerations. Furthermore, employers are not permitted to regulate an employee’s personal appearance away from work, unless harm is caused to the employer’s business by that appearance.

In this case, the employer had the right to institute the dress policy. The arbitrator determined, however, that the ban on facial piercings was unreasonable because the employer could not prove any harm to its business. The employer, for example, never surveyed customers about their attitudes to the piercings, never learned whether other transit systems disciplined employees for facial piercings, and never sought to find out if piercings had an impact on funding. The arbitrator noted that many riders themselves had piercings and that no complaints had been received. As a result, he sustained the grievance and ordered that the written warning be removed from her file.

The right to a disciplinary hearing survives the individual’s resignation or retirement from the position

The right to a disciplinary hearing may survive the individual’s resignation or retirement from the position

Hughes v. County of San Bernardino, California Court of Appeals, Docket E-060294

Robert Hughes had been served with, and found guilty of, certain disciplinary charges. The penalty imposed: a 15-day suspension without pay, which resulted in a loss of about $7,000 in pay.

Hughes initiated an administrative appeal pursuant to the San Bernardino County’s civil service rules, but missed the scheduled hearing after suffering a heart attack. Hughes retired for medical reasons before the appeal hearing could be rescheduled.

The County refused to reschedule the hearing, contending that he was no longer an employee entitled to an administrative appeal. The San Bernardino Civil Service Commission ruled that it had no jurisdiction to continue with the appeal.

Ultimately the California Court of Appeal ruled that Hughes was entitled to complete his administrative appeal as provided in the County's Personnel Rules.

In Blair v Horn* a New York Supreme Court justice considered the same issue, and came to a similar conclusion.

Clinton Blair sued the New York City Department of Correction (DOC) seeking a court order directing DOC to reinstate him to his former position and to schedule a hearing on the disciplinary charges that were pending against him at the time of his retirement after the Department had denied his request for such a hearing.

The court ruled that in this instance it was not irrational for DOC to treat the employment relationship as terminated as Blair was no longer working and remained on the payroll solely for purposes of exhausting leave that had been approved in anticipation of the termination of his employment.

While the court sustained DOC’S determination denying Blair’s request to “withdraw his retirement,” the court nevertheless ruled that Blair was entitled to a hearing on the disciplinary charges so that he may have an opportunity to contest them. In the words of the court, “His resignation during the pendency of charges does not terminate the proceeding against him.”

In effect, these decisions provided Hughes and Blair, respectively, "name clearing hearings." As the Court of Appeals held in Matter of Stanziale, 55 NY2d 735, where it is alleged that the basis or reason for dismissal of an individual is of a "stigmatizing nature" and there has been "publication" of such a basis or reason, the individual is entitled to some due process so as to clear his or her name.**

Although in both Hughes and Blair the courts ruled that an individual was entitled to go forward with a disciplinary hearing despite resignation or retirement, the converse is also possible wherebythe employer may elect to go forward and prosecute disciplinary charges that were pending at the time an individual left its employ and the employee's resignation or retirement will not defeat the appointing authority's ability to go forward with the disciplinary action.

In other words, a disciplinary action may survive the individual’s resignation or retirement from his or her position.

4 NYCRR 5.3(b), which applies to employees 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,*** permits the appointing authority to elect to disregard a resignation filed by an employee and to prosecute disciplinary charges and, in the event that such employee is found guilty of such charges and the penalty imposed is dismissal from the his or her employment, to record his or her separation as a dismissal rather than as a resignation.

The significance of this is that should the appointing authority elect to proceed with the disciplinary notwithstanding the employee’s resignation from the position and finds the individual guilty of such charges and imposes the penalty of “dismissal,” should a prospective employer asks if the individual had ever been removed from his or her employment “for cause,” the correct answer would be “yes.” Further, such an individual may be found to be disqualified for unemployment insurance benefits.

Further, the decision in Blair suggests that a court could deem a retirement to be the equivalent of a resignation for the purposes of 4 NYCRR 5.3(b).

* Blair v Horn, 2008 NY Slip Op 32581(U)[Not selected for publication in the Official Reports], is posted on the Internet at: http://www.leagle.com/decision/In%20NYCO%2020080929167/IN%20THE%20MATTER%20OF%20BLAIR%20v.%20HORN

** For example, a provisional employee [see Browne v City of New York, 45 AD3d 590] or a probationary employee who has been terminated from his or her position [see Donato v Plainview-Old Bethpage Central School District, 96 F.3d 623,] or an individual alleging his or her retirement was a “coerced" retirement” [see Murphy v City of New York, 35 AD3d 319], among others, may be entitled to a name-clearing hearing if the reasons for his or her separation have been made public by the employer and those reasons tend to “stigmatize” the individual [see Matter of Brathwaite, 70 AD2d 810].

*** Although 4 NYCRR 5.3(b) applies only to these entities, many local civil service commissions have adopted a similar rule.

The Hughes decision is posted on the Internet at: http://law.justia.com/cases/california/court-of-appeal/2016/e060294.html

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

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The right to a disciplinary hearing survives the individual’s resignation or retirement from the position

The right to a disciplinary hearing may survive the individual’s resignation or retirement from the position

Hughes v. County of San Bernardino, California Court of Appeals, Docket E-060294

Robert Hughes had been served with, and found guilty of, certain disciplinary charges. The penalty imposed: a 15-day suspension without pay, which resulted in a loss of about $7,000 in pay.

Ultimately the California Court of Appeal ruled that Hughes was entitled to complete his administrative appeal as provided in the County's Personnel Rules.

In Blair v Horn* a New York Supreme Court justice considered the same issue, and came to a similar conclusion.

In other words, a disciplinary action may survive the individual’s resignation or retirement from his or her position.

Further, the decision in Blair suggests that a court could deem a retirement to be the equivalent of a resignation for the purposes of 4 NYCRR 5.3(b).

*** Although 4 NYCRR 5.3(b) applies only to these entities, many local civil service commissions have adopted a similar rule.

The Hughes decision is posted on the Internet at: http://law.justia.com/cases/california/court-of-appeal/2016/e060294.html

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Click here to Read a FREE excerpt from The Discipline Book concerning the due process rights of public employees in New York State.

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Feb 2, 2016

Name Clearing Hearings

Name Clearing Hearings

Stanziale v. Executive Dep't, Office of Gen. Servs., 55 N.Y.2d 735

Where the reason for the employee's termination from employment is claimed to be stigmatizing nature, the individual may demand a "name-clearing hearing."

Stanziale [petitioner] was a nontenured employee of the Office of General Services [OGS] at the time of his termination. As the courts held in Holbrook v State Insurance Fund, 54 N.Y.2d 892 and James v Board of Education, 37 N.Y.2d 891, where the employee is "nontenured", in the absence of individual showing that the termination was for constitutionally impermissible reasons or prohibited by statute or policies established by decisional law, the appointing authority is free to effect the termination without giving any reason for the dismissal and without holding a "pre-termination" hearing.

In Stanziale case the Court of Appeals said that its review of the record shows that these "proscriptions were not violated."

Citing Board of Regents v Roth, 408 US 564, the Court of Appeals said that even if the reason OGS elected to provide regarding the petitioner's termination could be said to have been stigmatizing, any hearing to which Stanziale might have bee entitled was accorded to him.

Finding that the challenged termination was neither arbitrary nor capricious and was made in good faith, the Court of Appeals observed that there was a rational basis for the appointing authority's rejecting the recommendation of the hearing officer and dismissing petitioner for the offense.

Accordingly, the only relief petitioner could demand was a "name-clearing hearing" in view of the court concluding that his termination was neither arbitrary nor capricious and was made in good faith.

Termination of the employee following unsuccessful progressive disciplinary efforts did not shock the court’s "sense of fairness”

Termination of the employee following unsuccessful progressive disciplinary efforts did not shock the court’s "sense of fairness”
Phillips v York, 2016 NY Slip Op 00418, Appellate Division, Third Department

Warren County Sheriff's Office patrol officer Scott C. Phillips was served with two disciplinary charges as a result of his involvement in a preventable motor vehicle accident while on duty, an accident that allegedly resulted from his careless or negligent driving and that violated the terms of a previous disciplinary settlement agreement obligating him to exercise reasonable care in operating agency vehicles.

The Civil Service Law §75 Hearing Officer sustained both charges and recommended that Phillips be given a letter of reprimand, a two-month suspension and a one-year term of disciplinary probation. The appointing authority adopted the findings of the Hearing Officer with respect to Phillips’ guilt, but determined that, under the circumstances, termination was the appropriate penalty.

Phillips initiated a CPLR Article 78 proceeding challenging the appointing officer’s determination in Supreme Court, which transferred the action to the Appellate Division for resolution.

In his appeal Phillips first argued that appointing authority’s determination was arbitrary and capricious in that “it departed, without explanation, from prior disciplinary determinations imposing penalties well short of termination.” The Appellate Division said that those prior disciplinary actions “involve radically different misbehavior, a point noted by the Hearing Officer.” The court pointed out that while the appointing authority had declined to terminate employees for significant misconduct, those decisions are "factually distinguishable from this case” and did not require further explanation by appointing authority.

Phillips also contended that a September 2013 stipulation and agreement entered into by the parties following disciplinary action involving similar misconduct on the part of Phillips prohibited the appointing authority from terminating him. The court disagreed, noting that the stipulation and agreement relied upon by Phillips “did not include language prohibiting [the appointing authority] from seeking to terminate [Phillips] for future misconduct, and only stated that [the appointing authority] was free in his ‘discretion and without completion of all the formal provisions [of] . . . Civil Service Law §75 . . . [to] suspend[] [Phillips] without pay for a period not to exceed two (2) months’ if the terms of his probation were violated.” Significantly, the court said that had the parties "intended the clause to have a broader meaning" and preclude the appointing authority from seeking a harsher penalty if he employed the procedures set forth by Civil Service Law §75, it was incumbent upon them to "have specifically so stated."

Phillips also challenged the penalty of termination imposed by the appointing authority, claiming that such a penalty constituted an abuse of discretion because "it is so disproportionate to the offense as to shock [the court’s] sense of fairness" – a violation of the so-called the Pell Doctrine [Pell v Board of Education, 34 NY2d 222].

The Appellate Division was not persuaded by this claim, noting that “From March 2011 to December 2013, [Phillips] was involved in several preventable accidents while operating patrol vehicles. Despite progressive discipline imposed as a result of those accidents, it is evident that [the appointing authority] appropriately found from this history that [Phillips] would pose a risk to persons and property if he continued to hold his position as a patrol officer and, thus, we cannot say that the penalty of termination shocks our sense of fairness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00418.htm

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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Can Government Hiring Get Out of the Stone Age?

Can Government Hiring Get Out of the Stone Age?

Source: GOVERNING the States and Localities, February 2016

In the February 2016 issue of GOVERNING the States and Localities Katherine Barrett and Richard Green ask “Can Government Hiring Get Out of the Stone Age?”

Noting that “Urgency or not, many governments are locked in antiquated systems and outdated processes that stand in the way of bringing in the best and brightest. At a time when state budgets are loosening their strings and dormant programs are being refreshed, human resources departments are faced with the need to focus on improving their capacity to hire and to retain employees. Many governments are finding that if they want to hire the next generation of public employees, they’ll need to shift from the old ways of doing business.”

So what are states and localities to do? ask the authors. They then proposed and explain suggested changes in the following 10 key areas:

Enhancing benefits;

Loosening civil service requirements;

Reexamining minimum qualifications;

Changing your own expectations;

Recruiting online (and not just on your website);

Beefing up your technology;

Getting serious about interns;

Focusing on military vets; and

Changing the conversation.

The article is posted on the Internet at:

http://www.governing.com/topics/mgmt/gov-government-hiring-best-practices.html?utm_medium=email&utm_source=Act-On+Software&utm_content=email&utm_campaign=February%3A%20Number%20of%20state%20budget%20analysts%20decline%2C%20housing%20the%20homeless%20and%20more&utm_term=Help%20Wanted

Feb 1, 2016

Distinguishing between employees and independent contractors

Distinguishing between employees and independent contractors

Matter of Strauss (Commissioner of Labor), 2016 NY Slip Op 00561, Appellate Division, Third Department

RMC Research Corporation, an educational research firm, had a contract with the New York City Department of Education to provide teaching consultants, known as "peer observers," for the purpose of evaluating teachers who had received unsatisfactory ratings from school administrators. RMC had retained former teachers, including Michael D. Strauss, to act as peer observers at various schools within the Department's jurisdiction. The evaluations of the peer observers were used to assist school administrators in determining whether a disciplinary proceeding should be brought to remove the teacher under review from his or her position.

The issue in this action was an Unemployment Insurance Appeals Board’s decision that Strauss and other similarly situated peer observers, were employees of RMC for the purposes of its liability for unemployment insurance contributions based on remuneration RMC paid to Strauss and others engaged as peer observers.

Strauss had entered into a "consultant agreement" with RMC that required him to make 10 site visits to the school where the teacher rated "unsatisfactory" was assigned, six for observation, three for consultation and one for final assessment. In addition, he was required to prepare specific documents including observation reports, an individualized professional development plan and a final assessment letter in connection with his assignment, and to complete his assignment within 10 weeks.

Noting that the existence of an employment relationship is a factual issue for the Unemployment Insurance Appeals Board to resolve, and its determination in this regard is beyond judicial review if it is supported by substantial evidence, the court explained that although no single factor is determinative, “where, as here, the services of teaching professionals are involved, ‘the pertinent inquiry’ is whether the purported employer retains control of important aspects of the services performed."

Here, said the court, RMC's hiring process required Strauss to submit an application, undergo an interview and provide references. He subsequently signed a “consultant agreement” and received six hours of training provided by RMC.

Further, Strauss was paid an hourly rate set by RMC, was expected to work three to four hours per week for a total of 36 weeks during the 10-week assignment and submitted a voucher provided by RMC on the 15th of each month to receive payment for hours worked. Significantly, the Appellate Division noted that Strauss was paid for services rendered regardless of whether RMC received payment from the Education Department.

Other items of significance, said the court, included RMC's name appearing at the top of the documents that peer observers were required to prepare; RMC determined the format of such documents; during the course of his or her assignment peer observers interacted with RMC's project director who reviewed their observation reports for comprehensiveness, clarity, spelling and grammar; any complaints about a peer observer’s performance were directed to RMC; and RMC arranged for a replacement if an assignment could not be completed.

In the words of the Appellate Division, “The foregoing illustrates that there is substantial evidence that RMC retained overall control over important aspects of [Strauss’] work to establish the existence of an employment relationship,” and found no reason to disturb the Board’s decision.

As to distinguishing between an employee and an independent contractor, 20 factors being used by the IRS for this purpose. They are:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Additional information concerning the status of an individual as an employee or as an independent contractor is posted on the Internet at:

http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Self-Employed-or-Employee

The Strauss decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00561.htm

Editor in Chief Harvey Randall served as Director of Personnel, State University of New York Central Administration; Director of Research, Governor's Office of Employee Relations; Principal Attorney, Counsel's Office, New York State Department of Civil Service; and Colonel, JAG, Command Headquarters, 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.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.