Layoff of personnel in the event of a reduction of force by public employers in the State of New York

The impact of COVID-19 on the economy has resulted in many public employers in New York State considering laying off staff in order to close budget gaps. 

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book addresses the relevant laws, rules and regulations, and selected court and administrative decisions, to be considered in a layoff of personnel in the event of a reduction of force by the State of New York as the employer and its political subdivisions. Posted below, with permission, is the introductory chapter of this e-book summarizing such elements affecting layoff decisions as the abolishment of positions; tenure; seniority; leaves and resignations; layoff units; military service; takeovers; affirmative  action; retirement; and preferred and similar lists.

Both the Civil Service Law and the Education Law, and rules and regulations promulgated pursuant to such laws, set out guidelines and procedures addressing the layoff of public employees of the State as an employer and political subdivisions of the State including school districts and BOCES. Many court and administrative rulings have been handed down interpreting the application and administration of these statutes, rules, regulations and administrative determinations with respect to layoff of officers and employees in the public service.

Essentially, such officers and employees are to be laid off based on their relative seniority in the inverse order of their permanent appointment. Errors in making determinations concerning “seniority” for the purposes of layoff are costly as the redress in such cases is the payment of back salary and benefits to the individual unlawfully laid off from his or her position.(1)

§§80 and 80-a of the Civil Service Law and various provisions of the Education Law set out the procedures to be followed in executing a layoff of employees in the classified service and the unclassified service respectively.(2) These provisions, and similar statutes, have become required reading for many. 

As to employees in the classified service, the date of the individual’s “original appointment” to a position on a permanent basis controls, regardless of the fact that the individual was originally appointed a different the position from which he or she is laid off is in the competitive class [see CSL §80] or the noncompetitive class [see CSL §80-a].

In contrast, the Education Law provides that in the event a board of education abolishes a position the services of the tenured teacher having the least seniority in the school district or BOCES “within the tenure area of the position abolished shall be discontinued.”

This element – seniority – cannot be diminished or impaired by the terms of collective bargaining agreement as demonstrated by City of Plattsburgh v Local 788, 108 AD2d 1045.

In Plattsburgh the issue concerned the application of a Taylor Law contract provision dealing with seniority in a layoff situation.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff under State law, i.e., the individual's date of initial permanent appointment in public service.

For example, assume Employee A was provisionally appointed on January 1, and Employee B was appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1.

Under the terms of the Local 788 collective bargaining agreement A would have greater seniority for layoff purposes than B. But §§80 and 80-a of the Civil Service Law provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the law, B would have greater seniority than A.

This was the problem in the Plattsburgh case. The City laid off Mousseau rather than another worker, Racine. While Mousseau, had been employed by the City for a longer period than Racine, Racine had received his permanent appointment before Mousseau was permanently appointed.

The Union grieved, contending that under the seniority provision in the collective bargaining agreement, Racine should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus Mousseau, rather than Racine, had to be laid off first. Plattsburgh won an order prohibiting arbitration. The Court said that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

As the Court of Appeals said in County of Chautauqua v. Civil Service Employees Ass'n, 8 N.Y.3d 513, “Once such an informed decision as to which positions are to be [abolished] is made, §80(1) obligates the employer to respect the seniority rights of its employees."

Similarly, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

However, in Gee v Board of Educ. of Rochester City Sch. Dist., 99 AD3d 1260, the Appellate Division, 4th Department, conclude that “by accepting employment as a school instructor and entering into a collective bargaining agreement as a result of his membership in the union representing him, the individual waived any right to be credited for seniority in the tenure area of teacher.”

The court cited Dietz v Board of Educ. of Rochester City School Dist., 98 AD3d 1251 in which it was held “… the collective bargaining agreement (CBA) between the District and the union representing petitioner provided that layoffs of ‘school instructors’ would be affected within the four separate categories of school instructors identified in the CBA rather than within tenure areas; that separate seniority lists for purposes of layoffs are maintained for school instructors; and that, ‘[i]n the event that positions are abolished, school instructors shall not have rights to displace teachers in regular school programs having less seniority, nor shall teachers have rights to displace school instructors having less seniority.’"

Another element to consider is “continuous service.” §§80.2 and 80-A.2 of the Civil Service Law set out the effect, or lack thereof, of “interruptions in service” in the event of resignation followed by a reinstatement; appointment to a position in the unclassified service and other types of absences or leaves.

Abolishment of positions

As to mechanics, the Attorney General has concluded that there must be an actual and lawful abolishment of a position in order to lawfully remove an employee from his or her position pursuant to §§80 and 80-a (1976 Opinions of the Attorney General 7; see, also, O'Reilly v Nedelka, 212 A.D.2d 714).

Typically the appointing authority determines which position or positions are to be abolished. In some cases, however, the Doctrine of Legislative Equivalency may be a consideration.

The Doctrine of Legislative Equivalency states that only the entity that created the position may abolish it [i.e., a position created by a legislative act can only be abolished by a correlative legislative act" (Matter of Torre v. County of Nassau, 86 NY2d 42)].

This Doctrine, and a number of other significant public personnel law issues including the establishment of positions in the Classified Service by a political subdivision of the State, jurisdictional classification of positions in the Classified Service and the impact of a Taylor Law agreement in the event there is layoff of employees in the Labor Class, were considered by the Appellate Division in Chandler v Village of Spring Valley, 104 AD3d 847.

According to the decision, the Village of Spring Valley appointed three individuals [petitioners] to classified service positions of “Laborer” in the Labor Class in its Department of Public Works(3) and that these three individuals had “completed their probationary periods" prior to August 10, 2010. On August 10, 2010, however, the County of Rockland Department of Personnel, the municipal civil service commission [Commission] having jurisdiction over the Village, advised Spring Valley that it had "no record of employment" for the three petitioners, citing Civil Service Law §22 [Certification for positions] and §97 [Reports of appointing officers; official rosters].

The Commission’s reference to Civil Service Law §22, Certification for positions, suggests that these were new position or existing positions in a jurisdictional class other than the Labor Class in that Section 22 provides that: “Before any new position in the service of a civil division shall be created or any existing position in such service shall be reclassified, the proposal therefore, including a statement of the duties of the position, shall be referred to the municipal commission having jurisdiction and such commission shall furnish a certificate stating the appropriate civil service title for the proposed position or the position to be reclassified. Any such new position shall be created or any such existing position reclassified only with the title approved and certified by the commission.

Significantly, Civil Service Law §44 provides that all positions in the Classified Service are in the competitive class unless placed in a different jurisdictional classification.(3) The Appellate Division's decision, however, makes no reference to these three laborer positions having been placed in the Labor Class by amendment of the Commission's Rules, which rules are subject to the approval of the State Civil Service Commission in accordance with the provisions of Civil Service Law §20.

Accordingly, appears that the three petitioners at the time of their respective “appointment” were provisionally appointed to three “new positions in the competitive class,” and that these appointments should have been so reported to the Commission with Village’s request that the Commission amend its rules to “jurisdictional classify the three positions in the Labor Class.” The Commission’s August 10, 2010 notification also advised the Village that the "[petitioners] without approval from this office to work must be terminated immediately unless there is a resolution to the situation."

That same day, the Village Board adopted Resolution No. 519 of 2010, unanimously resolving that the individual petitioners "shall be immediately removed” from the Village payroll and informed that they are not employees of the Village. The three individuals then filed a petition pursuant to CPLR Article 78 seeking to annul the Village’s resolution removing them from the Village payroll, to compel the Village to comply with its ministerial duty under the Civil Service Law by submitting the required paperwork to the Commission, and to reinstate them with back pay.

The petitioners also submitted evidence that another employee in the labor class with less seniority had been retained by the Village after their removal from the payroll, an action they alleged violated their “seniority rights under the governing collective bargaining agreement.”(4)

In response, the Village contended that in the months preceding its adoption of the resolution terminating the three petitioners it had conducted a comprehensive review of its operations and determined that the Department of Public Works "would operate more economically and efficiently by creating three new positions with the title of assistant maintenance mechanic and eliminating all positions in the labor class by attrition and/or layoffs."

In rebuttal, the petitioners submitted evidence that the new title “Assistant Maintenance Mechanic” was proposed on July 27, 2010 and notice of three vacancies in the new class was posted on that date. Accordingly the petitioners contended that the Village had not properly abolished the individual petitioner's positions on August 10, 2010, but had terminated their employment "in violation of the collective bargaining agreement and the Civil Service Law."

The Supreme Court denied the petition and dismissed the proceeding, holding that the Village had properly abolished the individual petitioners' positions for the purpose of economy or efficiency and that the petitioners had failed to allege or establish that the Village had acted in bad faith in abolishing their positions.

The Appellate Division reversed the lower court’s ruling, explaining that the Doctrine of "Legislative equivalency requires that a position created by a legislative act can only be abolished by a correlative legislative act," citing Torre v County of Nassau, 86 NY2d 42.

Here, said the court, it is undisputed that each of the individual petitioners' positions was created by resolution of the Village Board, and thus, another resolution of the Village Board was required to abolish each of those positions. Contrary to the Village's contention, the Appellate Division ruled that three positions in question were not abolished by the Village's Resolution No. 519 of 2010.

The Appellate Division explained that “The misconception of the Village Board that the positions did not exist was premised upon the Village's own failure to comply with the filing requirements of the Civil Service Law pursuant to the notification by the municipal civil service commission." The Village Board had “unanimously resolved to ‘immediately remove[ ]’ the individual petitioners from the Village payroll and to inform them that they ‘are not employees of the Village,’ rather than to remedy their filing and certification violations under the Civil Service Law.” Further, said the court, the plain language of the subject resolution “refutes the [Village's] contention that the Village Board was abolishing positions then in existence.”

Moreover, said the Appellate Division, the record supports the petitioners' contention that although the resolution “immediately removed the individual petitioners from the payroll,” the Village continued to employ another laborer with less seniority. The Appellate Division held that the petitioners established that the positions of the individual petitioners were not abolished and they were laid off in violation of the seniority provisions of the collective bargaining agreement. The court explained that the Village's action in removing the individual petitioners from the payroll was not justified by its proper creation of a new class of employees, with the intention of eliminating the labor class by attrition or layoff.

Clearly "A public employer may abolish civil service positions for the purpose of economy or efficiency, as long as the position is not abolished as a subterfuge to avoid statutory protection afforded civil servants before they are discharged." Here, however, the Appellate Division ruled that “although the evidence supported the Village’s contention that it intended to abolish the laborer positions after it had created the new class of assistant maintenance mechanic,” the evidence does not support its contention that the Village actually abolished the individual petitioners' positions in the resolution dated August 10, 2010 [emphasis in the decision].

In any event, said the court, even if the August 10 resolution could be construed to abolish the individual petitioners' positions effective August 10, 2010, the immediate termination of their employment pursuant to that resolution violated a provision in the collective bargaining agreement requiring two weeks notice prior to terminating an employee whose position has been abolished, and thus constituted improper abolishment of a civil service position "to avoid the statutory [in this instance better read “a contractual”] protection afforded civil servants before they are discharged."

The Appellate Division reversed the Supreme Court’s decision, annulled the Village’s August 10 resolution and remitted the case to the Supreme Court, Rockland County for further proceedings “including a calculation of the individual petitioners' pay retroactive to August 10, 2010.”

Once it is decided which competitive class positions [and with respect to the State as an employer, positions in the noncompetitive class] in a layoff unit are to be abolished, two factors control for the purposes determining the individual or individuals to be laid off: the employee's tenure status [i.e., the permanent, contingent permanent, temporary, or provisional status of the worker] and his or her seniority.

Layoff units must be considered as well. Among the elements that complicate the determination of the specific individual or individuals to be suspended or displaced as a result of a layoff are (1) the identification of the specific layoff unit(s) for layoff purposes and (2) the employee's decision with respect to exercising any "displacement," bumping" or "retreat" rights within that layoff unit that he or she may have. With respect to the State as an employer, layoff units are set out in the Rules of the State Civil Service Commission [see 4 NYCRR 72 below].

It could be costly to the appointing authority if it fails to make correct determinations concerning an employee's tenure status and seniority for the purposes of layoff. If a person ultimately found to have superior rights to retention was laid off and another individual having lesser rights to retention was continued in service instead, courts will usually award the individual who was laid off in error back salary and other benefits and the appointing authority would be directed to reinstate the individual retroactively to his or her former position as well.

Layoffs from positions in the unclassified service: Layoffs of individuals employed in positions in the unclassified service are also governed by statute. For example, §§2510, 2588 and 3013 of the Education Law, among other sections, control with respect to the layoff of tenured teachers and administrators employed by a school district or a BOCES.

In addition, Rules of the Board of Regents must be considered. For example, 8 NYCRR 30-1.13 [Rights incident to abolition of positions] allows a more senior individual to "bump" a less senior individual following his or her transfer to position in another tenure area in the course of a layoff situation.

Tenure 

Insofar as tenure is concerned, those lacking permanent status in the title [i.e., temporary employees and provisional appointees] are to be terminated before permanent employees are laid off. Permanent employees serving their probationary period are to be laid off before permanent employees in the title who have completed their probationary period. For the most part, so-called "contingent permanent employees" enjoy the same tenure rights as permanent employees when it comes to layoff.(5)

Seniority 

As to seniority, the basic principle in a layoff situation is "LIFO" - Last In; First Out. For the purposes of §§80 and 80-a, seniority is determined on the basis of the date of the individual's initial permanent appointment followed by continuous permanent status in the classified service up to the date of his or her layoff.

Note that it is the initial date of permanent appointment rather than the date on which the employee attained tenure upon satisfactory completion of his or her probationary period that controls.

Such “seniority" is not always the same as the employee's "seniority in the title" or "seniority" under a Taylor Law agreement.

Taylor Law contract provisions, however, may not adversely affect the layoff rights vested in employees by laws such as §§80 or 80-a of the Civil Service Law. [see Plattsburgh v Local 788, 108 AD2d 1045].

Some collective bargaining agreements may set out a different basis for determining seniority or grant “super-seniority” to certain individuals. In a layoff situation, the statutory provisions regarding determining seniority trump those set out in a collective bargaining agreement.

The fact that at sometime during his or her career the employee may have been provisionally promoted or been placed on leave from his or her "permanent position" or employed in a position in a different jurisdictional class will not necessarily constitute a break in the employee's "continuous permanent status" for the purposes of §§80 and 80-a. In some cases the employee's date of seniority may include service with another governmental jurisdiction.

Breaking ties in seniority: Sometimes it may be necessary to break a “tie” in seniority, [for example, see CSEA v OMH, 196 A.D.2d 276; Fiffe v City of Cohoes CSD, 262 A.D.2d 762], especially in a layoff involving a school district where typically a number of educators are appointed simultaneously effective at the beginning of an academic year [see, for example, Decisions of the Commissioner of Education 12933].

Essentially any rational method of ranking to break ties in seniority may be used as long as it is consistently applied to those subject to the layoff.

Leaves and resignations

Separation from employment after a leave of absence without pay from a position in the classified service in excess of one year would, in most cases, constitute an interruption of continuous service. Service is deemed interrupted if an individual resigns from his or her position and is not reinstated or reappointed within one year of the effective date of the resignation.(6)

Layoff units

Among the elements that complicate the determination of the specific individual or individuals to be suspended or displaced as a result of a layoff are:

(1) the identification of the specific layoff unit(s) for layoff purposes and

(2) the employee's decision with respect to exercising any "displacement," "bumping" or "retreat" rights within that layoff unit that he or she may have [see, for example, Rules of the State Civil Service Commission, 4 NYCRR 5.5 et. seq.

Layoff units are set out in the President's Regulations [see 4 NYCRR 72].

If only a few positions are involved in a layoff, it is somewhat easier to determine the specific individual or individuals to be laid off.

Where large numbers of positions are abolished, especially where the layoff unit is geographically spread out, the task of determining the rights of employees based on their relative seniority is made significantly more complex.

Military service

Military service(7) may be a factor in determining seniority as well.

A veteran who served in time of war may be entitled to have his or her "seniority date" adjusted for the purposes of layoff [§85, Civil Service Law]. Five years of service are credited to an eligible disabled veteran's original date of permanent appointment; 2 years of service credit is added in the case of non-disabled veterans. Also, the spouse of a 100% disabled veteran may be eligible for five years of "additional" service credit in layoff situations if he or she meets the requirements set out in §85.7 of the Civil Service Law.

Civil Service Law §85.7(1) provides that a blind employee is entitled to absolute preference in retention in cases of layoff.

Also, §86 of the Civil Service Law provides for the transfer of veterans and exempt volunteer firemen employed by political subdivisions of the State in positions in the non-competitive class or in the labor class employed by a political subdivision of the State upon abolition of positions in such classes [see, for example, Bartholomew v Columbia County, 191 A.D.2d 88].

Takeovers

Another element that may be a factor in some layoff situations involves determining §§80 or 80-a seniority for individuals who attained permanent status with a public employer as a result of a "takeover" of a private institution or enterprise by a governmental employer pursuant to §45 of the Civil Service Law or a similar law. Such employees will typically have two seniority dates to consider and it may be necessary to consider both when determining their retention rights in a layoff situation.

One is their date of seniority with respect to other public employees in the layoff unit generally, usually determined on the basis of the effective date of the takeover. The second is the date of their seniority with respect to their coworkers at the private enterprise continued in public service pursuant to §45 upon the takeover.Collective bargaining agreements: As noted earlier, another difficulty may arise as a result of an employer's efforts to comply with "layoff provisions" contained in a Taylor Law agreement.

As the Plattsburgh decision indicates, [Plattsburgh v Local 788, 108 AD2d 1045], statutory seniority rights for the purposes of layoff may neither be impaired nor limited by Taylor Law agreements.

Similarly, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

Affirmative Action

Layoff may also adversely impact affirmative action plans, interests and goals. Employees appointed pursuant to Affirmative Action programs may be among those having the least seniority and thus having the greatest potential of being laid off in the event of a “reduction in force [RIF].

Further, reinstatement following layoff is also based on seniority and here the so-called "rule of one" controls. The person having the greatest seniority willing to accept the position must be appointed to the item from the preferred list or the position must be kept vacant.

One Federal appeals court has concluded that unless there is some evidence that layoff procedures based on seniority were adopted or applied with an intent to discriminate against protected classes, layoffs based on seniority neither violate Title VII nor the post-Civil War Civil Rights statutes [42 USC 1981, 42 USC 1983] (see NAACP v Detroit Police Officers Association, 52 FEP 1001).

As minorities and women currently tend to cluster in the “lowest in seniority” group, layoffs based on traditional seniority provisions will most likely result in adverse impact. One of the factors to be considered is the influence of public employee unions that have generally favored “seniority” in contract provisions where possible. A number of attempts to negotiate minimizing the effect of layoff through work sharing or reduced workweek scheduling have been attempted with little success. However, it has been suggested that affirmative action considerations in connection with work force reductions may result in procedures could permit a public employer to retain all employees through mandated part-time work schedules, involuntary furlough in lieu of layoff or other methods to avoid the erosion of past equal employment gains.

Swiftly following its decision in the American Tobacco case, the United States Supreme Court issued its opinion in Pullman-Standard v Swint, 456 U.S. 273. The decision holds that it is not unlawful discrimination under Title VII to operate a seniority system that has some discriminatory consequences unless it is shown that the system was purposefully discriminatory. Disparate impact alone was viewed as insufficient to invalidate the seniority system even though it may perpetuate pre-Title VII discrimination. This decision is viewed as illustrative of a trend in court decisions to place greater burdens on plaintiffs to show a violation of Title VII in cases where “length of service” is the criteria for selection, promotion or layoff.

The U. S. Supreme Court in Guardians v Civil Service Commission of the City of New York (51 LW 5105) holds that while proof of intentional discrimination is not required to establish a prima facie case of unlawful discrimination for the purposes of Title VII, intentional discrimination must be shown in order to be given compensatory relief under Title VI. In this case the compensatory relief sought was “constructive seniority” and “administration of a promotion test to minorities”. If intentional discrimination is not shown in Title VI cases, only “limited injunctive relief” will probably be granted by federal Courts.

While the disparate impact standard may be sufficient to establish a “prima facie” case of discrimination in seniority cases, plaintiffs apparently now will have to show some intentional discriminatory purpose before the burden of going forward is shifted to the defendant.

Some believe that this will make it almost impossible to win Title VII claims alleging unlawful discrimination where contracts or law control advancement or layoff on the basis of seniority. As earlier noted, this decision may affect the results achieved through affirmative action efforts in layoff situations should public employers continue to reduce their work forces.

Retirement 

In an effort to reduce the total number of persons to be laid off, legislation may be enacted that provides certain employees with a "retirement incentive."

Many individuals faced with layoff who are eligible to retire will undoubtedly consider this option, especially where an "early retirement option" has been made available to officers and employees. A provision that may be of interest to persons who are not eligible for "superannuation retirement" and who are to be laid off is §73 of the Retirement and Social Security Law.(8)

§73 grants eligibility for certain benefits to members of the Employees' Retirement System who have been discontinued from service after 20 years. A person who is laid off from service while a member "through no fault or delinquency on his part, may elect to receive his accumulated contributions or a retirement allowance...." §73.a deals with persons who last became members of the System before April 8, 1943; §73.b provides for those who last became members on or after that date. The section sets out the formula to be used in determining the member's retirement allowance in the event he or she elects to receive a retirement allowance under those circumstances. However, typically the retirement allowances available under §73 are significantly less than those that would be payable upon retirement for "superannuation."

Preferred Lists

The “fall-out” of a layoff is the preferred list. Errors in the creation and use of preferred lists could be as expensive to the employer as errors in determinations concerning the individuals laid off following the abolishment of positions.

This is further complicated by the fact that a preferred list is a “moving target.” If, for example, an individual is first on a preferred list, he or she may later be displaced as “number 1” by an individual in the layoff unit having greater seniority but subsequently laid off. Further, an individual is entitled to remain on a preferred list for the statutory period authorized by law, measured from the date on which he or she was laid off and placed on the preferred list.

Some key points concerning the use of preferred lists:

1. Typically the most senior individual on the list may be "passed over" or, under certain circumstances, have his or her name removed from the list, only if he or she actually declines the offer of an appointment.

2. The name of an individual may not be removed from a preferred list if he or she merely declines appointment to a different position for which certification of the preferred list was not mandated or deemed appropriate or accepts an appointment to a lower grade position.

With respect to accepting an appointment to a lower grade position, if an individual is laid off from Position A and subsequently accepts a position "to a lower rank position" for which the preferred list was certified his or her name remains on the preferred list. If the employer subsequently reestablishes Position A and that the individual is eligible for certification from the preferred list and t he or she is the most senior person on the list, he or she must be appointed to the newly created position or the position must remain vacant.

3. The individual is not required to seek information concerning the existence of any vacancy for which he or she could be certified.

4. While an appointing authority is not required to fill a vacant position, if it elects to do so, it must use the appropriate preferred list if one exists.(9)

5. If an individual accepts other employment, his or her name is to remain on the preferred list until it may otherwise be lawfully removed. 

Other considerations

Another element that must be considered is the possible existence of a special eligible list or a "military reemployment list” authorized by the State’s Military Law as it is possible that some State and municipal employees who have been ordered to military duty may be laid off as a result of the abolishment of positions. In such cases the provisions of §243.11 of the State's Military Law may be applicable.(10)

§243.11 provides that if a position occupied by a public employee is abolished prior to the termination of his or her military service, the name of that individual is to be placed on a preferred list. Persons in the competitive class are to have their names placed on preferred lists pursuant to §81 of the Civil Service Law; other individuals may be entitled to preferred list rights under other provisions set out in the Civil Service Law or the Education Law.

Persons not covered by the provisions of §243.11 may be entitled to have their names placed on a "military reemployment list" pursuant to §243.12 of the Military Law.

In addition to these benefits, a person ordered to military duty whose name is on an eligible list retains his or her rights and status on such list. If the name of such a person becomes reachable for certification while on military duty, he or she may request that their name be placed on a "special eligible list." This request must be made following the termination of military service and during the period of the employee's eligibility on such list. Names are kept on the “special list” for two years following the individual's termination of military duty [see §243.7, Military Law].

§243 provides other special benefits to those called to military duty such as crediting such service for the purposes of probation [see §243.9 and §243.9-a], special consideration in cases of disability and age [see §243.10 and §243.10-a] and appointment to a vacancy while on the individual is on active military duty [see §243.6]. Still other rights available to employees returning to work following military duty are listed in §§243.5 and 243.8.

ENDNOTES

(1) Employee improperly laid off due to error in determining her seniority entitled to back pay without any deduction for amounts she might have earned prior to being reinstated to her position. Civil Service Employees Ass'n, Inc., Local 1000, AFSCME, AFL-CIO v. Brookhaven-Comsewogue Union Free School Dist., 87 N.Y.2d 868.

(2) With respect to those situations where there are no statutory or contractual requirements concerning layoff applicable to incumbents of positions to be abolished, the appointing authority should consider adopting guidelines that will survive a challenge that the designation of the individual or individuals to be laid off was arbitrary or capricious.

(3) The Classified Service consists of four jurisdictional classes: the Competitive Class, the Non-competitive Class; the Exempt Class and the Labor Class.

(4) N.B. Employees in the Labor Class are not within the ambit of either §80 or §80-a of the Civil Service Law [which sections of law provide certain rights to employees in the competitive and non-competitive classes in the event of a layoff] but employees in the Labor Class may be accorded layoff rights based on “seniority” pursuant to a Taylor Law agreement provided that any such contract right does not adversely affect the statutory layoff rights of other employees [see City of Plattsburgh v Local 788, 108 AD2d 1045]. 

(5) In some instances an individual may be employed pursuant to a “contract of employment” having a fixed duration or his or her continuation in employment may be subject to the appointing authority receiving “grant” or similar funding from an outside source. Such employees typically to not enjoy tenure in such a position but may be on leave from a position in which they hold “tenure.” Such tenure status in a position from which the officer or employee is on leave is another element that must be considered by the appointing authority in layoff situations.

(6) In some instances a civil service commission may approve the reinstatement of an individual who was not reinstated or reappointed within one year of the effective date of his or her resignation.

(7) §242.4 of the State’s Military Law provides certain rights that could be relevant in a layoff situation. Time during which a public officer or employee is absent for military duty pursuant to §242, subdivisions two, three and three-a of the State’s Military Law is not an interruption of continuous employment and, “ notwithstanding the provisions of any general, special or local law or the provisions of any city charter, no such officer or employee shall be subjected, directly or indirectly, to any loss or diminution of time service, increment, vacation or holiday privileges, or any other right or privilege, by reason of such absence, or be prejudiced, by reason of such absence, with reference to continuance in office or employment, reappointment to office, re-employment, reinstatement, transfer or promotion.” 

(8) Spano v Kings Park Cent. School Dist., 61 A.D.3d 666, is a case demonstrating some “unintended consequences” of electing to take a retirement incentive.  [see http://www.courts.state.ny.us/reporter/3dseries/2009/2009_02771.htm]

(9) Under certain circumstances, a public employer may be required to use other types of "preferred lists" such as a "special military list" before the “regular” preferred list.

(10) Public employees who volunteered for such military service are deemed to have been "ordered to military duty" for the purposes of §243 of the Military Law.

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The Layoff, Preferred List and Reinstatement Manual

A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on   http://booklocker.com/books/5216.html

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Topics Addressed in NYPPL

NYPPL has summarized and posted almost 6,000 decision. Listed below are the captions of the most frequently accessed postings.

Abolishing a position for economic reasons

Absent a statutory or negotiated administrative hearing procedure, an appointing authority may delegate decision-making authority to the hearing officer

Acquiring tenure in the position by tenure by "operation of law," sometimes referred to as tenure by estoppel or tenure by acquiesce

Actions of an employee prior to his or her promotion may properly form the basis for terminating the individual prior to the completion of his or her probationary period

Administrative due process in disciplinary actions

Administrative tribunal may not rely on evidence not in the record in arriving at its decision

Admitting evidence of prior disciplinary action taken against the charged party

Alcoholism as a defense in a disciplinary action

Amending disciplinary charges "to conform with the testimony" given by a witness in the course of the disciplinary hearing

Anatomy of an administrative disciplinary decision

Appeals involving efforts to remove a member of a school board from office

Appeals to the Commissioner of Education seeking to remove members of a Board of Education for alleged misconduct or alleged neglect of duty

Applicant for performance of duty disability retirement benefits must show that his or her disability was the result of an act of an inmate

Application for retirement benefits must be timely delivered to and received by the retirement system to be operative

Application seeking the removal of an employee of a School District

Applying the Pell Doctrine in a disciplinary action

Appointing authority imposed a more severe penalty than the one recommended by the hearing officer

Appointing authority’s neglecting to make a timely designation of an individual to serve in lieu of the appointing authority in a §75 disciplinary action is a fatal omission

Arbitrator's award may only be vacated by a court if it violates public policy, is irrational or it exceeds specified limitations on the arbitrator's power

Article 78 petition seeking the review of the disciplinary penalty imposed on an employee must raise an issue of substantial evidence to warrant Supreme Court’s transfer of the proceeding to the Appellate Division

Assessing the appropriate penalty to be imposed for unprofessional and disrespectful language in the workplace

Assigning law enforcement personnel to perform light duty while receiving benefits pursuant to §207-c of the General Municipal Law

Attempting to avoid disciplinary action

Authority of the arbitrator

Burden of proof shifts to the first responder if he or she fails to demonstrate a causative link between his or her illness and exposure to toxins at the World Trade Center activates

Burden of serving a proper "notice to appear" at an administrative hearing is the responsibility of the charging party

Challenging a decision to terminate a probationary teacher's employment

Challenging an employee's termination during his or her disciplinary probation period

Civil Service Law §75 requires that a hearing officer appointed to conduct a disciplinary hearing be so designated in writing by the appointing authority

Claiming exempt volunteer firefighter status for the purposes of Civil Service Law §75.1(b)

Claiming the affirmative defense of "privilege"

Commissioner of Education will dismiss an appeal submitted pursuant to Education Law §306, in whole or part, if there are procedural defects or omissions

Commissioner of Education will dismiss an application or appeal involving an officer and, or, a member of the staff of a school district for improper service of the complaint and, or, lack of subject matter jurisdiction.

Common procedural errors or omissions that will bar the Commissioner of Education's considering the merits of an appeal

Comptroller has exclusive authority to determine the validity of a beneficiary designation on an application for death benefits, which determination must be supported by substantial evidence

Conducting disciplinary hearings in absentia

Conducting student disciplinary proceedings consistent with fundamental notions of due process is an "unwavering obligation"

Considering breaks in service in determining seniority for the purposes of layoff and reinstatement

Considering the employee's personnel history is setting a disciplinary penalty

Constructive discharge from the position as the result of unlawful acts of discrimination

Counseling memorandum issued to an employee

Court's review of an administrative decision made after an adversarial hearing is limited to considering if the decision is supported by substantial evidence

Credit the opinion of one medical expert over that of another medical expert when reviewing an application for disability retirement

Deficiencies in the performance review process of a probationary teacher that were not merely technical undermined the integrity and fairness of the process

Delegating the authority to make a final disciplinary decision and the determination of the penalty to be imposed to another

Demanding an employee submit his or her resignation from his or her position

Determining “continuous residency” for the purpose of qualifying for public office or employment

Determining an appropriate disciplinary penalty under the circumstances

Determining an educator's seniority for the purposes of layoff

Determining if an administrative agency's decision is arbitrary and capricious

Determining if an employee is eligible for accidental disability retirement benefits

Determining if an incident qualifies as an accident for the purposes determining eligibility for accidental disability retirement benefits

Determining seniority and tenure area of teachers in the event of the abolishment of positions

Determining seniority for the purpose of layoff and establishing an educator's position on a "preferred list" for the purpose of reinstatement

Determining the amount of the General Municipal Law §207-a (2) supplement payable to a firefighter upon his or her retirement for disability because of a work related injury or disease

Determining the appropriate procedure to be followed when filing disciplinary charges against a police officer of a town

Determining the disability benefits due a firefighter as the result of a work-related injury can be complex

Determining the impact of performing light, limited or restricted duty on applications for disability retirement benefits

Determining the status and rights of an employee in the public service terminated from his or her employment

Difficulties result following the appointment of a teacher to an “unauthorized tenure area”

Disability not a defense to charges of excessive absence from work

Disciplinary action follows employee's disrespectful and intimidating behavior towards

superiors

Disciplinary actions pursuant to Education Law §3020-a processed consistent with compulsory arbitration standards

Disciplinary charges must be served on the target of the disciplinary action on or before the expiration of the period set by the controlling statute of limitations

Disciplinary hearing officer may not consider disciplinary charges and specifications not preferred against an employee

Disciplinary hearing officer permitted to "draw the strongest inferences" from the record in the event the charged individual declines to testify at his or her disciplinary hearing

Disciplinary hearing postponed “without prejudice” pending successful completion of a probationary period with another agency

Disciplinary hearings held in absentia

Disciplinary penalty imposed, termination, held reasonable under the circumstances

Disciplinary probation

Discrepancy between the contemporaneous incident reports and the applicant’s testimony at the subsequent hearing presents a credibility issue to be resolved by the hearing officer

Dismissing an employee before he or she has completed his or her probationary period

Distinguishing between an individual's "domicile" and his or her "residence"

Doctrine of Abatement: applied in a criminal action

Doctrine of Collateral Estoppel bars relitigating an issue raised and decided by a judicial tribunal in a prior action or proceeding involving the same parties but does not bar litigating claims involving the same parties that were not previously considered in prior administrative or judicial actions

Doctrine of Legislative Equivalency defeats a Mayor’s unilateral decision to abolish a position in the civil service

Doctrine of primary jurisdiction

Doctrine of Sovereign Immunity held to have been waived with respect to litigation challenging an arbitration award

Does the public have a right of access to a hearing concerning the removal of a member of a school board for official misconduct?

Due process consideration in the event an employee is terminated from his or her probationary period

Educator challenges the abolition of positions and the assignment of her former teaching duties to other teachers

Educator seeking to overturn an unsatisfactory annual performance rating must meet is very high standard of proof

Educator terminated for a continuing pattern of inappropriate behavior involving students

Educator terminated for doing exactly what he was permitted and encouraged to do by his employer

Educator's unsatisfactory performance rating for the academic year supported by the "detailed descriptions" of educator's difficulties in the classroom in the record

Eligibility for workers’ compensation benefits based on work-related stress

Employee dismissed pursuant to §75 of the Civil Service Law for incompetency based on excessive absenteeism

Employee has the burden of proving alleged misconduct by the arbitrator prejudiced his or her rights or the integrity of the process

Employee may be subjected to disciplinary action for misusing his or her sick leave accruals

Employee on Workers’ Compensation Leave continues to be subject to his or her employer’s rules and regulations concerning policies applicable to all its employees

Employee penalized 60-day suspension without pay after striking a patient and failing to report the incident

Employee served with disciplinary charges alleging he was "singing on the job"

Employee suspended for one year without pay after failing to comply with school directives

Employee terminated following the loss of the license required to perform the duties of the position

Employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay

Employee’s continuing to accept public assistance benefits after being employed to manage public assistance benefits held incompatible with such employment

Employee’s disciplinary history for rudeness and insubordination considered in determining disciplinary penalty to be imposed

Employee’s misuse of employer’s email results in dismissal

Employee’s testimony at the hearing differed from statements he gave during an investigative raised a question of credibility for the hearing officer to resolve

Employee’s use of the employer's electronic equipment - disciplinary action being taken against an employee

Employee's resignation after being found guilty of disciplinary charges forfeits his or her right to demand arbitration

Employer advanced good faith reasons supporting its decision to terminate a probationary employee

Employer's payment of employer contributions towards an employee's health insurance premiums discontinued during the employee's disciplinary suspension without pay

Employer's personnel policies may be operative with respect to its employees' conduct while its employees are "off-duty"

Employer's termination of a biologically male employee transitioning from male to female held unlawful discrimination on the basis of sex

Employment history of an employee found guilty of one or more disciplinary charges may be considered in setting the disciplinary penalty to be imposed

Essentials of challenging an employee disciplinary action where compulsory arbitration is involved

Evaluating claims of mitigating circumstances in considering challenges to the disciplinary penalty imposed by the appointing authority

Evidence that the firefighter suffered disease or malfunction of the heart as the result of his or her duties and activities required to trigger the statutory presumption set out in the Volunteer Firefighters' Benefit Law

Exceptions to the Doctrine of Exhaustion of Administrative Remedies

Exceptions to the general rule that only the union or the employer may demand that an issue be submitted to arbitration

Factual findings made in a disciplinary hearing have a collateral estoppel effect where the individual had a full and fair opportunity to litigate the alleged misconduct at that hearing

Failing to designate the individual to conduct a disciplinary hearing pursuant to §75 of the Civil Service Law in writing is a fatal jurisdictional error

Failing to provide a fair hearing requires the voiding a Civil Service Commission’s decision sustaining the termination of an employee by the appointing authority

Failure of the individual to timely execute his or her oath of office upon election to a public office results in the position becoming vacant by operation of law

Failure to comply with emergency leave regulations

Failure to honor a known policy of the employer can constitute disqualifying misconduct for the purpose eligibility for unemployment insurance benefits

Federal and State laws, rules and regulations control affecting public sector officers and employees engage in partisan political activities

Fifth Amendment's bar against “self-incrimination” does not protect an individual who lies in the course of an official inquiry

Filing disciplinary charges against an employee where the absence is due to an injury or disease

Findings of fact in support of the appointing authority’s decision to terminate an employee required to survive the employee’s judicial challenge seeking reinstatement to his or her former position.

Findings of fact made by a §75 hearing officer are given collateral estoppel effect in considering a terminated individual's application for unemployment insurance benefits

Fire district or municipal corporation may file an application for disability retirement on behalf of a firefighter receiving General Municipal Law §207-a.1 benefits

Firefighter Rule bars police officer from suing his or her employer or a coworker for injuries suffered while on duty

Forfeiture of employee retirement contributions made to a New York State public retirement system

Freedom of speech

General Municipal Law §207-a(2) salary supplement becomes payable by the employer upon a firefighters retirement with accidental or line of duty disability benefits

Giving an employee a negative performance rating because the rater “didn’t have time” to rate the employee’s performance is irrational, arbitrary and capricious

Guidelines followed by courts in reviewing a challenge to a disciplinary decision made after a hearing held pursuant to compulsory arbitration

Hearing officer considers failed efforts at “progressive discipline” in setting disciplinary penalty

Hearing officer is entitled to weigh the parties' conflicting evidence and to assess the credibility of witnesses where room for choice exists

Hearsay may constitute "substantial evidence" supporting the tribunal's findings in an administrative hearing

Hearsay testimony may be admitted in evidence in an administrative hearing

History of misconduct and other factors considered by the hearing officer in recommending termination of employment

If an employee engaged in repeated acts constituting disloyalty to the employer, forfeiture of compensation and benefits is warranted under the Faithless Servant Doctrine

If the collective bargaining agreement does not set out procedures for conducting GML §207-c hearings, the employer is free to establish such a procedure unilaterally

Implementing an arbitrator's decision after the appointing authority failed to timely comply with the provisions set out in a collective bargaining agreement

Imposing a "disciplinary probation period" as part of the penalty or settlement of a disciplinary action

Imposing a greater disciplinary penalty than the one recommended by the disciplinary hearing officer

Imposing a lesser disciplinary penalty than the one recommended by the disciplinary hearing officer

Imposing multiple disciplinary penalties on an employee found guilty of misconduct

Inability to satisfactorily perform the duties of the position due to an alleged disability

Individual cannot be found guilt of misconduct not charged in the notice of discipline

Individual has no property interest in his or her former employment once he or she is discharged

Individual is disqualified from receiving unemployment insurance benefits if he or she lost his or her employment as a result of acts constituting a felony

Individual is not deemed permanently disabled if undergoing a reasonably safe surgical procedure would permit the individual to perform the duties of his or her position

Individual or organization must have “standing” in order to maintain an Article 78 action challenging an administrative decision

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law

Individual wishing to withdraw or rescind his or her resignation after delivery to the appointing authority must fully comply with all relevant rules and regulations

Individual's General Municipal Law §207-c benefits may be discontinued where the decision to do so is supported by substantial evidence

Individual's retiring from his or her position to avoid disciplinary action may have unexpected consequences

Individual's right to due process is truncated if he or she is persuaded not to attend his or her administrative hearing

Injuries sustained by a trainee during a training exercise ruled the result of an accident for the purposes of claiming eligibility for accidental disability retirement benefits

Installing Global Positioning System equipment in devices use by employees during work

Insubordinate and discourteous conduct

Judicial review of a determination arrived at following a quasi-judicial hearing is typically limited to determining if the decision is supported by substantial evidence

Judicial review of determinations made after a hearing denying a police officer's application for General Municipal Law §207-c disability benefits

Lack of prior misconduct not sufficient to mitigate imposing the penalty of dismissal given the fraudulent nature of the individual’s misconduct

Lack of standing and failure to name a necessary party dooms an appeal to the Commissioner of Education

Layoff of seasonal employees constituted a termination of employment for the purposes of Public Authorities Law §2629(2)(a)

Leaving employment without good cause will disqualify an applicant for unemployment insurance benefits

Maintaining a proper chain of custody of evidence to be used in a disciplinary action

Making false statements concerning the employee's performance of his or her duties

Making false statements to investigators concerning alleged misconduct

Member service credit in the New York State Teachers' Retirement System upon the reemployment of an individual receiving a disability retirement allowance by a New

York State public employer

Membership in the NYS Employees’ Retirement System for 10 years is not necessarily the same as the member having 10 years of member service credit

Minor gaps and errors in the hearing transcript made at an administrative hearing did not preclude meaningful review of the hearing

Motions to have an administrative law judge recuse himself or herself from presiding at a disciplinary hearing

Name clearing hearings

Negotiating disciplinary procedures for City ofSchenectady police officers held a prohibited subject of collective bargaining

New York City employee found guilty of used his employer's telephone and computer equipment for his political campaign while at work

New York City police officer who filed fabricated complaints with the New York City Civilian Complaint Review Board dismissed from the department

New York State and Local Retirement System member has only 30 days following the “date of payability” of his or her retirement allowance to change his or her retirement option

OATH Administrative Law Judge recommended dismissal of disciplinary charges after finding supervisors’ testimony was unsupported by reliable documentary evidence

OATH disciplinary hearing held in absentia

Obligation to arbitrate the matter arising through a statutory mandate set out in Education Law §3020-a requires that the arbitrator’s determination be subject to "closer judicial scrutiny."

Opening a disciplinary hearing to the public and other procedural matters addressed in an appeal to the Commissioner of Education

Optional Retirement Plan

Overtime paid to a police officer on “special-duty” for service performed for a private entity not included in determining the officer’s “final average salary” for retirement purposes

Party seeking to modify an arbitration award must comply with the relevant provisions of Article 75 of the Civil Practice Law and Rules

Penalty of dismissal imposed on educator ruled shocking to its sense of fairness

Penalty of dismissal recommended for an employee found guilty of violating the public trust and other disciplinary charges

Penalty of termination to “jolt” the employee to understand of the seriousness of his misconduct remanded for the imposition of a lesser penalty

Petitioner's appeal from a Board of Education's seniority determination for the purposes of layoff dismissed for failure to make "proper service" on all the parties

Placing an employee on involuntary leave pursuant to Civil Service Law §72.5

Plausibility Standard

Police confrontations with mentally impaired citizens and inmates

Police detective who did not properly discharge his duties not entitled to a defense or indemnification by the employer in a lawsuit in which he or she is a defendant

Police officer eligible to receive General Municipal Law §207-c benefits may file a claim against his or her employer pursuant to General Municipal Law §205-e

Police officer holds a position of great sensitivity and trust and is subject to a higher standard of fitness and character are "ordinary civil servants"

Police officer terminated following being found guilty of downloading and possessing child pornography

Police officer's accident disability retirement benefits are to be offset against the injured retiree's jury award for future lost earnings and pension

Police offices and firefighters applying for accidental disability retirement benefits must demonstrate that his or her incapacity was the "natural and proximate result of an accident" within the meaning of §363[a][1] of the Retirement and Social Security Law

Presumption that an accident that occurred in the course of employment arose out of that employment

Probationary employee has the burden of showing his or her termination was unlawful

Probationary employee may not be terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law

Probationer challenging dismissal from the position claims to have suffered extreme emotional distress

Procedural errors to avoid in an appeal submitted to the Commissioner of Education

Procedural misstep in processing an appeal to the Commissioner of Education could result in a fatal jurisdictional defect

Procedural requirements with which a resident of a school district must comply when seeking to remove a school officer from his or her position

Processing an application for accidental disability retirement

Processing appeals to the Commissioner of Education seeking the removal of a member of a Board of Education

Proper service of the petition and notice of the petition of an appeal to the Commissioner of Education critical to the Commissioner assuming jurisdiction

Public employee's misconduct while "off-duty" may result in disciplinary action being initiated against the employee by his or her appointing authority

Public officer threatening to do something that he or she may lawfully due does not constitute coercion

Public policy prohibits an employer from bargaining away its right to remove employees meeting the plain and clear statutory requisites for termination

Public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination

Redacting the name of a party in an administrative disciplinary action from the decision

Refusing to accept the resignation submitted by an employee

Rejection of a hearing officer's finding of fact and determination by the appointing authority

Removing a judge from his or her office

Removing a school official for an alleged unauthorized disclosure of confidential information

Removing a town, village, improvement district or fire district officer, other than a justice of the peace, from his or her office

Removing a volunteer firefighter from his or her position

Requiring a firefighter injured in the line of duty to accept a "light duty" assignment and where appropriate to undergo surgery

Requiring an educator submit to a medical examination to determine his or her ability to perform the duties of his or her position

Requiring employees to submit to a “dog-sniffing test” for illegal drugs

Restoration of leave credits used by employees electing to remain on the payroll while on Workers’ Compensation Leave pursuant to Civil Service Law §71

Retirement

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

Right to administrative due process not compromised by a three-year delay in conducting a disciplinary hearing and, or, other alleged procedural errors

Rule of three

Running for public office

Salary reduction upon reassignment to another position in the course of an agency reorganization is not a disciplinary action requiring notice and hearing

School Board asks the Commissioner of Education to remove the president of the school board from the position

School board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty

School board seeks to remove a sitting member from the board for alleged "official misconduct"

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

School employee who elected to submit an issue for resolution through a contractual grievance procedure may not appeal the same issue to the Commissioner of Education pursuant to Education Law §310

Seniority for the purposes of layoff and reinstatement from a preferred list set out in "settlement agreement"

Sick leave

Sleeping on duty

Social Security Administration’s disability determination not binding on a public retirement system of this State.

Spoliation of evidence

Statutory rights of employees of the State and political subdivisions of the State absent from work as the result of a work-related injury or disease

Stipulation of settlement cannot withdrawn from the stipulation on the basis that it had "improvidently" agreed to it

Stipulation waiving rights to a disciplinary hearing and agreement to resign from the position may not disqualify the individual for Unemployment Insurance benefits

Summarily removing public officers and employees from their positions

Summarily terminating a federal officer holding a term appointment from his or her position

Supreme Court correctly applied the Doctrine of Collateral Estoppel based on the hearing officer's determinations as to the reasons for the employee's termination

Suspension of a tenured teacher requires the board of education to serve written disciplinary charges against the teacher within a reasonable amount of time

Suspension of a tenured teacher requires the timely filing of written charges and specifications with the clerk or secretary of the board of education

Teacher fined $10,000 after subjecting student to corporal punishment

Tenure area determinations upon the abolishment of a position or positions

Tenure by estoppel

Tenured employee who resigns from his or her position and is subsequently reemployed by his or her former employer in the same title is not automatically entitled to tenure in the position

Tenured teacher unwilling to improve her pedagogical skills despite being provided with substantial assistance terminated from her position

Terminated after a disciplinary hearing, employee’s Article 78 petition dismissed because he failed to file timely Education Law §3813(1) notice of claim

Terminated educator alleges that her employer breached the employment agreement and negligently terminated her

Terminated probationary employee has the burden of demonstrating an improper basis for his or her termination

Terminating a "long-time" provisional employee

Terminating a teacher during his or her probationary period

Termination of a police officer on General Municipal Law §207-c leave under color of Civil Service Law §71

Termination of a public officer from his or her position by operation of law

Termination of employee found guilty violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments

Termination of employment following extended absence without approval

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

Test applied to determine if an individual is eligible for accidental disability retirement is whether he or she is permanently unable to perform the full duties of the position

Unemployment Insurance Appeal Board may reject an application for unemployment insurance benefits based on its finding the Claimant's employment was terminated due to disqualifying misconduct

Unemployment insurance benefit denied where off-duty misconduct found to breach the standards of behavior expected of an employee in consideration of his or her duties

Union cannot object to imposing demotion as a disciplinary penalty when demotion was a penalty authorized in the collective bargaining agreement

Unless it is shown that a performance evaluation was arbitrary and capricious, or made in bad faith, the court will not substitute its judgment for that of the appointing authority

Unsatisfactory rating voided because employee's "performance review" failed to comply with the employer's own procedures and thus undermined the integrity of the process

Use of excessive and inappropriate force on juvenile residents at a facility

Use of video surveillance recording in disciplinary actions

Withdrawing a resignation delivered to an appointing authority

Zero tolerance drug policy