A request seeking permission to delay filing an appeal with the Commissioner of Education must be timely filed

A request seeking permission to delay filing an appeal with the Commissioner of Education must be timely filed
M.H. v Santiago Taveras, Interim-Acting Deputy Chancellor for Teaching and Learning of the New York City Department of Education, Decisions of the Commissioner of Education, Decision No. 16,097

M.H., a tenured New York City teacher, appealed the denial of her objections to unsatisfactory performance ratings by the Interim-Acting Deputy Chancellor to the Commissioner of Education.

Rejecting M.H.’s appeal as untimely notwithstanding the representation that the delay in filing the appeal was due to personal illness, the Commissioner explained:

1. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of unless any delay is excused by the Commissioner for good cause shown and to be timely, a request to have the delay excused must be commenced within 30 days of receiving the administrative determination.

2. When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays.

3. Neither illness nor ignorance of the appeal process is a valid excuse for the late commencement of an appeal.

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume50/d16097.htm

Canceling COBRA coverage

Canceling COBRA coverage
Geissal v Moore Medical Corp., USSC, 524 U.S. 74

If an employer discovers that an individual participating in its health insurance plan under COBRA is also covered as a dependent under a different health insurance plan, may it cancel his or her coverage?

It all depends on the date on which the individual’s coverage as a dependent in the other plan took effect.

According the United States Supreme Court’s ruling in the Geissal case, the employer may not cancel its coverage if the individual was covered as a dependent under the other plan before he or she made the COBRA election.

The court noted that 29 USC 1162(2)(D)(i) allows the employer to cancel an individual’s COBRA participation in its health plan only if the individual became covered as a dependent in the other plan after making his or her COBRA election and then only if the new plan does not exclude “pre-existing conditions.”

The Geissal case involved an employee who was covered under both his employer’s health insurance plan and as a dependent under his spouse’s health insurance plan at the time he was terminated from employment and made a timely election to continue in the employer’s group health plan as provided by COBRA.

The fact that both plans provided similar coverages was held irrelevant. The high court decided that because Geissal was covered by his wife’s policy as a dependent before he elected COBRA, his former employer could not cut off his participation in its plan even though the benefits in both plans were essentially the same.

In other cases involving the discontinuation of COBRA coverage by employers on the basis of “alternate coverage as a dependent,” some U.S. Circuit Courts of Appeal had applied a “significant gap” test. These courts held that continued coverage under COBRA was available to an eligible employee only if there was a “significant gap” between the individual’s COBRA benefits and the benefits available to the individual under his or her spouse’s plan. Eligibility for continuation of COBRA coverage based on such a distinction was rejected by the Supreme Court.

Unemployment Insurance Board may apply the doctrine of collateral estoppel to reject an individual’s application for benefits

Unemployment Insurance Board may apply the doctrine of collateral estoppel to reject an individual’s application for benefits
Obafemi v Comm. of Labor, Appellate Division, 250 A.D.2d 905

Suppose an employee who has been dismissed from his or her position following a disciplinary hearing applies for unemployment insurance benefits. May the Unemployment Insurance Board deny unemployment insurance benefits on the doctrine of “collateral estoppel?”

The doctrine of collateral estoppel allows a court or administrative body to apply the judgment in a earlier action in a subsequent action based on the same events but brought as a different “cause of action,” thereby obviating the need for a new hearing.

Disciplinary charges were filed against Thkikuma D. Obafemi, a toll collector, alleging that he was discourteous to customers. The arbitrator had found Obafemi guilty of being rude to a customer despite prior warnings to refrain from such inappropriate behavior. The penalty imposed was dismissal.

Following his termination Obafemi applied for unemployment insurance benefits. When the Unemployment Insurance Appeals Board ruled that he was disqualified for such benefits because he was terminated for misconduct, he appealed. Obafemi claimed that he was not given a hearing as to his eligibility for unemployment insurance benefits. The Appellate Division dismissed his appeal, commenting that the board could give “collateral estoppel” effect to the findings of the arbitrator. After all, the court said, Obafemi had been given a “full and fair opportunity” to litigate the issue of his misconduct at the arbitration hearing.

In another unemployment insurance case, Joyce v Commissioner of Labor, 250 A.D.2d 901, the Appellate Division said that the Unemployment Insurance Board had substantial evidence that Stephen M. Joyce had voluntarily left his employment with the U.S. Postal Service without good cause.

Joyce was directed to leave work after an outburst during which he shouted racist remarks. The Postal Service’s psychiatrist found Joyce “not fit for duty” and advised him to seek “outside psychiatric treatment.” Joyce was also told that he could not return to work until he obtained treatment. Joyce told the Service that he was unwilling to seek outside psychiatric treatment.

The Court agreed with the Board, pointing out that “it is well settled that when a claimant fails to take a step that is reasonably required as a prerequisite to continued employment, the claimant will be deemed to have left his [or her] employment without good cause.”

Past practice of using seniority in bidding for shift assignment trumps Sabbath observer’s request for work schedule adjustment

Past practice of using seniority in bidding for shift assignment trumps Sabbath observer’s request for work schedule adjustment
Balint v Carson City [Nevada], CA9, 144 F.3d 1225

Lisette Balint had been selected for employment in the detention center of the Carson City, Nevada Sheriff Department and was to start “on a swing shift” effective Friday, March 31, 1995. However, Balint was a member of a church that barred all forms of secular work during the period its members observed as the Sabbath -- Friday night through Saturday night.

After being selected, Balint told the department that she could not work “during her Sabbath” and requested that her schedule be adjusted to accommodate her religious practice. When the head of the detention department informed Balint that there could be no accommodation, she withdrew her employment application.

In her original application for employment Balint said that she “was willing to work swing-shift, graveyard, weekends and holidays.” She did not mention any religious or other objections to working on certain shifts.

As a “past practice,” Carson City deputy sheriffs participate in a semi-annual bidding system in which the twelve or thirteen deputies assigned to the jail bid for shifts in the order of their seniority.

Contending that Title VII required that the department accommodate her religious needs, Balint sued. The U.S. Circuit Court of Appeals, 9th Circuit disagreed, reversing a lower court ruling in Balint’s favor.

The Court commenced its analysis with the observation that Title VII prohibits employers from discriminating on the basis of religion and that the employer has a duty to accommodate a current or prospective employee’s religious practices unless the accommodation would cause “undue hardship on the conduct of the employer’s business,” citing 42 U.S.C. Sect. 2000e(j).

The applicant or employee must establish a prima facie case of unlawful discrimination. If he or she does so, the burden shifts to the employer to prove that it either initiated good faith efforts to accommodate the employee or that any accommodation would create an undue hardship on the employer.

The department argued, and the court agreed, that it had “a legitimate seniority system, enacted without discriminatory intent” and any attempt to accommodate Balint would, as a matter of law, cause undue hardship.

The Circuit Court concluded that because the Sheriff’s Department had followed a nondiscriminatory seniority-based system for assigning shifts, it had no duty to accommodate Balint, “even if such accommodation would have no more than a de minimis [slight] impact. The court ruled that an employer is not required to alter an existing, bona fide seniority-based shift-bidding system to accommodate an employee’s religious needs.

Individual ineligible for unemployment insurance benefits if compensation exceeds the highest benefit rate applicable during relevant “effective days”

Individual ineligible for unemployment insurance benefits if compensation exceeds the highest benefit rate applicable during relevant “effective days”
Robinson v Commissioner of Labor, 2010 NY Slip Op 06272, decided on July 29, 2010, Appellate Division, Third Department

A claimant for unemployment insurance benefits is eligible to be paid for an accumulation of "effective days" of unemployment, provided that no effective days may be accumulated in any week in which he or she is paid compensation exceeding the highest benefit rate applicable.

Jonathon Robinson applied for unemployment insurance benefits but his claim was rejected by the Unemployment Insurance Appeals Board based on its finding that Robinson received an average weekly wage "far above the maximum weekly benefit rate of $405" and, as a result, “he did not accumulate effective days for those weeks.”

Robinson had been employed as a lecturer at Cornell University for the summer sessions in 2006 and 2007, teaching a class two days per week. He received a flat fee of $9,360 for the summer 2006 session, representing an average weekly wage of $1,560, and a flat fee of $9,780 for the summer 2007 session, representing an average weekly wage of $1,630.

Paid on a semimonthly basis, Robinson applied for unemployment benefits for those weeks in which he did not receive a paycheck, certifying that he had earned less than the maximum weekly benefit rate of $405.

Ultimately it was determined that Robinson was ineligible to receive benefits on the basis that he earned over the statutory limitation for those weeks for which he had claimed entitlement to benefits. He was charged with a recoverable total overpayment of $1,504.75 and, in addition, his right to receive future benefits by 64 effective days on the basis that he had made willful false statements to obtain benefits.

Robinson appealed these determinations by the Board.

The Appellate Division sustained the Board’s decision, commenting that “A claimant is eligible to be paid for an accumulation of ‘effective days" of unemployment, provided that no effective days may be accumulated in any week in which a claimant is paid compensation exceeding the highest benefit rate applicable’ … Here, the record reflects, and claimant admits, that he received an average weekly wage far above the maximum weekly benefit rate of $405 and, therefore, the determination by the Board that he did not accumulate effective days for those weeks is supported by substantial evidence and has a reasonable basis in law.”

As to the Board's finding that Robinson “made willful misrepresentations to obtain benefits,” the Appellate Division concluded that the Board’s decision was supported by substantial evidence.

The decisions reports that Robinson had conceded that he had received and read the unemployment insurance benefits handbook. Accordingly, said the court, the Board could reasonably find that, regardless of his communications with representatives of the Department of Labor, the language in the handbook addressing a claimant's ineligibility for benefits was clear and unambiguous.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06272.htm

The statute of limitations for filing an appeal commences to run on date the individual knew, or should have known, of the event or omission

The statute of limitations for filing an appeal commences to run on date the individual knew, or should have known, of the event or omission
William R. Hayes v The Board of Education of the Saugerties Central School District, Decisions of the Commissioner of Education, Decision No. 16,094

A board member read aloud an anonymous letter in which district employees were criticized at a public board meeting held by the Saugerties Central School District on December 8, 2009. William R. Hayes, who was present at the meeting, asked for a copy of the letter on December 18, 2009. He received the requested copy on January 22, 2010.

Contending that the anonymous letter was disrespectful to teachers and contrary to the Board’s code of ethics and Education Law §1709(18), Hayes filed an appeal with the Commissioner of Education seeking [1] a letter of apology from the School Board to the teaching staff for reading the letter, and [2] the Board's agreement not to read anonymous letters in a public forum in the future. In the alternative, Hayes asked to Commissioner to “chastise” the Board for its alleged unethical behavior.

The Board asked the Commissioner to dismiss the appeal for a number of reasons, including its representation that the appeal is untimely. The Commissioner agreed that Hayes' appeal was untimely and dismissed it.

Noting that an appeal to the Commissioner must be commenced "within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown,” the Commissioner explained that the anonymous letter was read at a Board meeting held on December 8, 2009 and Hayes did not file his appeal until January 26, 2010, more than 30 days later.

As the appeal related solely to the Board’s actions on December 8, 2009, the Commissioner ruled that Hayes’ “belated receipt of a copy of the letter does not excuse his delay” in view of the fact that he was present at the December 8 meeting of the Board and "personally heard and observed the alleged misconduct at that time."

The decision demonstrates the general rule that a statute of limitations for filing an appeal with the Commissioner is measured from the date on which the individual knew, or should have known, of the alleged offending event or omission.

Another frequent basis for the Commissioner rejecting an appeal – the failure of the appellant to name and serve a necessary party, i.e., an individual that may be adversely affected were the Commissioner to sustain the appeal, as illustrated in recent decisions by the Commissioner. See, for example, http://publicpersonnellaw.blogspot.com/2010/07/appeal-to-commissioner-of-education.html .

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume50/d16094.htm

Comptroller's audit finds former Town Supervisor's spouse misappropriated $378,000 of the Town’s funds by writing checks to the Supervisor and herself

Comptroller's audit finds former Town Supervisor's spouse misappropriated $378,000 of the Town’s funds by writing checks to the Supervisor and herself
Source: Office of the State Comptroller

According to an audit released by State Comptroller Thomas P. DiNapoli, the spouse of the former supervisor of the Town of Fairfield admitted to misappropriating $378,000 in town funds by using her husband's signature stamp on 347 checks that she made payable to herself and her husband.

The supervisor, who has since resigned, had hired his wife as deputy supervisor.

Following fieldwork by DiNapoli's auditors, the former supervisor's wife was indicted on 350 counts related to the lost money.

Auditors tracked the town's bank activity from 2004 to 2009.

The Comptroller’s report is posted on the Internet at: http://www.osc.state.ny.us/localgov/audits/towns/2010/fairfield.pdf

Uninterrupted Civil Service Law §72 absence for one year or more permits termination of employee pursuant to §73 of the Civil Service Law

Uninterrupted Civil Service Law §72 absence for one year or more permits termination of employee pursuant to §73 of the Civil Service Law
NYC Dept. of Corrections v Anonymous, OATH Index #1472/10

OATH Administrative Law Judge Alessandra Zorgniotti recommended that the New York City Department of Correction terminate a correction officer absent on Civil Service Law Section 72 leave from employment pursuant to Section 73 of the Civil Service Law after the officer has been absent from duty continuously for more than one year due to a non work-related disability.

Zorgniotti credited the opinion of the Department's doctor that the officer was not currently fit to return to work because “his medical condition was active and that the stresses of returning to work in the jail could trigger another episode with serious consequences.”

Section 72 leave is available to an employee who is unable to perform his or her duties because of a disability other than a disability resulting from an occupational injury or disease as defined in the Workers’ Compensation Law, while Section 71 of the Civil Service Law provides for a leave of absence when the employee is absent due to an occupational injury or disease.

There is, however, one significant difference between Section 71 leave and Section 72 leave. The one-year leave period* allowed under Section 71 is determined on the basis of the individual’s cumulative absence while the minimum leave period under Section 72 is based on the employee’s ininterrupted absence for one year.

In other words, under Section 72, the employee may be terminated pursuant to Section 73 of the Civil Service Law if he or she has been absent from work for an uninterrupted period of at least one year.

In contrast, an employee absent on Section 71 leave may be terminate after he or she has been absent for a cumulative total of at least one year, even if such absences are intermittent whereby the employee returns to work and then goes on Section 71 leave again because of the same injury or disease.

It should be remembered that under both Section 71 and Section 73, separating an employee from service after the employee has been absent for the minimum period mandated for such leave is discretionary and the appointing authority is not required to terminate the employee.

Further, the individual separated from the position pursuant to either Section 71 or Section 73, as the case may be, is eligible for reinstatement to his or her former position is he or she applies for such reinstatement within one year of termination of the disability. If a suitable position is not available, the individual’s name is to be placed on a preferred list and he or she may be reinstated to a suitable position in a lower grade while on such a preferred list if available.

* In the event is the employee’s absence resulted from an assault sustained in the course of his or her employment, he or she is entitled to a leave of absence for at least two years unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1472.pdf

Federal Court in Michigan holds plaintiff must exhaust local administrative review despite belief that hearing officer was selected by city attorney

Federal Court in Michigan holds plaintiff must exhaust local administrative review despite belief that hearing officer was selected by city attorney
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/

Just because you think an administrative appeal would be useless doesn't mean that the courts will think it is useless. Dean Patty Salkin (Albany Law School) on her Law of the Land blog reports on a Federal District Court case that suggests one must be very, very careful before deciding that available administrative remedies would be useless and charging into the courts.

Dean Salkin’s report is posted on the Internet at: http://lawoftheland.wordpress.com/2010/07/29/federal-dist-court-in-michigan-holds-plaintiff-must-exhaust-local-administrative-review-despite-belief-that-hearing-officer-was-selected-by-city-attorney/

The general rule requires those objecting to administrative action to exhaust their administrative remedies before asking for judicial review.

There is an exception if further administrative steps would be futile and irreparable harm will result from the delay (as with a preliminary injunction).

Fear of bias, however well founded, does not mean that the agency will no-way do the right thing. It could have an attack of logic, or common sense, or honesty, or other insanity. Most agency decision makers, no matter how political, try to follow the rules. Even when the appellant is a whining publicity hound who contributed to the other party.

Edward M. “Ted” McClure

FMLA leave request does not insulate employee from unrelated disciplinary action

FMLA leave request does not insulate employee from unrelated disciplinary action
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Howard Gipson was employed as a plaint maintenance worker for Vought Aircraft Industries. He also served as the local union president.

In late 2004, Gibson underwent triple-bypass heart surgery. He was granted FMLA leave for the surgery. In October 2005, Gipson was removed as the local union president. Incident to that removal, his successor removed Gipson's personal effects from the union office and placed them in an adjacent lobby with instructions for Gipson to collect them. He did not.

Gipson's shift supervisor subsequently asked Gipson to remove his effects from the lobby. Gipson did nothing. His supervisor asked him a third time to remove his effects. Gipson replied that it was a union-related matter and that he would not comply without a written directive. His supervisor next gave him a verbal directive to remove his effects, and warned Gipson that failure to do so could result in discipline up to and including discharge. Gipson walked away. He went and saw the company nurse. She told him his blood pressure was slightly elevated. Gipson returned to his station, and told his supervisor he wanted to go home because he was in pain and needed his medicine. Gipson was asked one final time by the HR manager to retrieve his effects. Gipson declined stating that he had a very bad headache.

The company terminated Gipson on the spot for insubordination. Gipson sued alleging that his termination was in retaliation for exercising his FMLA rights. The Sixth Circuit disagreed.

The Court found that there was no a casual connection between is exercise of FMLA rights and his termination. The court opined: "As we have stated, an employee may not insulate himself from a pending dismissal by opportunistically invoking the FMLA."

Here, Gipson, the court found, could not demonstrate that his employer would not have dismissed him regardless of his alleged request for FMLA leave. The Court noted Gipson's admission that he flatly disobeyed the direct order of his supervisors, which "is indisputably grounds for termination."

The Court also cited the finding of the arbitrator that, in violation of a known work rule, Gipson failed to comply with his supervisor's three requests to move his effects, all of which were issued before Gipson had voiced his medical concerns to anyone. While he was not terminated until after Gipson asked for a medical pass to leave for the day, he had been warned prior to his request that failure to obey a direct order to move his effects would result in discipline, including discharge.

According to the Court, "the wheels of termination had already been put into motion before Gipson requested leave." A reasonable jury "could not conclude that it was Gipson's request for a medical pass, rather than Gipson's continuing insubordination, that provoked his firing."

Mr. Bosland Comments: Invoking FMLA leave does not protect an employee from unrelated discipline that is already in the pipeline. Note that the court considered the discipline to be in the pipeline even though formal discipline had not been proposed or issued. Rather, the court focused on whether the discipline would have occurred regardless of the employee's request for FMLA leave. In practice, the employer can demonstrate that it would have issued discipline notwithstanding the exercise of FMLA rights based on conduct that pre-dated the employee's invoking the need for FMLA leave.

Of course, by opportunistically invoking the FMLA, Gipson forced his employer to to go through the great time and expense of litigating the case before both an arbitrator and through the courts. Many employers would look to settle such a case. While that might not guarantee that Gipson would return to his job, a settlement to avoid the substantial expense of litigation might have allowed Gipson to resign with a neutral recommendation, and with a few dollars in his pocket.

The decision is posted on the Internet at: http://www.ca6.uscourts.gov/opinions.pdf/10a0420n-06.pdf

Court sustains Human Rights’ finding that the reasons advanced by employer for terminating employee was pretext for unlawful discrimination

Court sustains Human Rights’ finding that the reasons advanced by employer for terminating employee was pretext for unlawful discrimination
New York State Office of Mental Health v New York State Division of Human Rights, 2010 NY Slip Op 06268, Decided on July 29, 2010, Appellate Division, Third Department

Bisi Asimolowo was employed by the Office of Mental Health as a pharmacy intern in 1992 and Asimolowo understood that he was expected to take and pass the licensing examination to become a pharmacist.

Although Asimolowo failed to become a licensed pharmacist, Mental Health periodically obtained authorization from the Department of Civil Service to continue employing him as a pharmacy intern.

The decision reports that in 2003 Asimolowo was unable to work for approximately 27 days due to undergoing treatment for cancer.

Asimolowo subsequently submitted a doctor's note stating that he was “medically disabled due to an ankle and knee injury.” On that same day Mental Health notified him that his employment would end, “ostensibly because the Department [of Civil Service] had declined to authorize his continued employment.”

Asimolowo filed a verified complaint with State Division of Human Rights alleging that among other things, disability discrimination. Ultimately a SDHR Administrative Law Judge issued a recommended order finding that although Mental Health had advanced an otherwise legitimate, nondiscrimatory reason for terminating Asimolowo's employment, it was, in fact, a pretext and Asimolowo had been discharged because of his disability.

The Commissioner of Human Rights adopted the ALJ's findings but reduced the proposed award of damages from $50,000 to $30,000.

Noting that “A determination of SDHR is entitled to considerable deference due to its expertise in assessing discrimination claims, and we must uphold that determination if it is supported by substantial evidence,” the Appellate Division said that “The parties do not dispute that Asimolowo suffered from a disability but was capable of working as a pharmacy intern or that [Mental Health] provided a legitimate, nondiscrimatory reason to support his termination.

Accordingly, said the court, it need only determine whether substantial evidence supports SDHR's finding that Asimolowo demonstrated that Mental Health's nondiscrimatory reason was, in fact, a pretext for unlawful discrimination.

Recognizing that Mental Health “undoubtedly had legitimate concerns about Asimolowo's employment status given his failure to become a licensed pharmacist,” the Appellate Division said that “serious efforts to remove him only began after he used a substantial quantity of sick leave to address medical issues.”

The court also commented that “discussions of an unknown nature” occurred between Mental Health officials and the Department of Civil Service and that Asimolowo was not advised of his termination until after his supervisor was notified of his knee and ankle injury, “despite [Mental Health’s] purported awareness of the pending termination for months beforehand.”

The court concluded that although the evidence in the record could support a different result, substantial evidence supported SDHR's determination that “relying upon Asimolowo's dubious civil service status to terminate him was a pretext and that [Mental Health] intended, by the ‘devious and subtle means’ often employed, to discriminate.”

The Division's award of damages for Asimolowo's emotional distress was also affirmed. Such injuries, said the court, may be proven by a complainant's own testimony, even in the absence of medical or other treatment.

The Division had found that Asimolowo was continuing to feel "enormous mental anguish and humiliation" at the time of the hearing, over four years later, and that he was "deeply hurt" that his children had lost respect for him as a result of losing his job.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06268.htm

Paying prevailing wages

Paying prevailing wages
Office of the Comptroller ex rel Local 924 v Office of Labor Relations, OATH Index No. 464/10
Office of the Comptroller ex rel Local 1087 v Office of Labor Relations, OATH Index No. 588/10

The "prevailing wage law" requires the City of New York to pay “laborers, workmen and mechanics” in its employ the prevailing rate of wages and benefits paid in the private sector for work in the same trade in the locality.

The City and public sector unions are required to negotiate in good faith to enter into a contract setting the wages and benefits for prevailing wage employees but when negotiations fail, the union may file a complaint with the Comptroller on behalf of its members.

The Comptroller is authorized to conduct an investigation to determine the prevailing wages and benefits for the group of employees and has designated New York City's Office of Administrative Tribunals and Hearings [OATH] to conduct hearings in these matters.

In the Local 924 case OATH Administrative Law Judge Tynia Richard recommended that Laborers and City Laborers be paid wage and benefits in accord with those set forth in the contract for Local 79 mason tenders.

The Office of Labor Relations had contended that cleaners and porters who belong to Local 32BJ are the proper private sector match for the City Laborer and Laborer position. Comparing the work performed by the City Laborers and Laborers to that performed by mason tenders and porters and cleaners, ALJ Richard found the City employees' work more comparable to the mason tenders.

The Local 924 decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-464.pdf

The Local 1087 case concerned a proceeding to set the prevailing wages and benefits for City locksmiths and locksmith supervisors.

The Comptroller and Local 241 sought a determination that both titles be paid wages and benefits in accord with those paid pursuant to a collective bargaining agreement for locksmiths and supervisors at Columbia University.

The Office of Labor Relations argued that the union was not the prevailing one because its members do not comprise 30 percent or more of the locksmiths in New York City.

OATH Administrative Law Judge Addison ruled for the Comptroller and the union. Although the number of Local 241 locksmiths did not independently meet the 30 percent threshold for the title, when combined with Local 348 locksmiths, collectively the union locksmiths exceeded the thirty percent threshold.

ALJ Addison also ruled that where two or more collective bargaining agreements are involved, the prevailing wage may be set by picking the predominant one, here the members of Local 241 who work at Columbia University.

The Local 1087 decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-588.pdf

Protecting whistleblowers the focus of a policy statement issued by Wayne County [NY]

Protecting whistleblowers the focus of a policy statement issued by Wayne County [NY]
Source: Wayne County web site

Wayne County recently issued a policy statement addressing Whistleblower Protections . The statement indicates that “Wayne County will extend to its employees all protections afforded to them under the applicable State and federal Whistleblower laws including the Federal False Claims Act, the New York State False Claims Act and the New York State Civil Service Law.

The statement notes that New York State Civil Service Law [Civil Service Law §75-B] prohibits the public employers from dismissing or taking other disciplinary or other adverse personnel action against a public employee who reports fraud, wrongdoing or violations of the law, "to Wayne County or to another government body." These protections apply to disciplinary proceedings, arbitration and collective bargaining agreements where the adverse action taken by the employer is based solely on retaliation for whistleblower conduct.

The statement also notes that in the event the employee who has been the subject of a retaliatory personnel action is not subject to final and binding arbitration, the employee may bring a civil action in court and the court may order reinstatement of the employee to the same or an equivalent position, the reinstatement of full fringe benefits and seniority rights and compensation for lost wages, benefits and other remuneration including court costs and attorney fees.

Also addressed are the State and Federal False Claims Acts.

Under the Federal False Claims Act* any person may bring a qui tam** civil action for a violation of the Federal False Claims Act on behalf of the federal government. Further, an employee may bring a qui tam lawsuit in U. S. District Court if the employee has been discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or employer because of lawful acts done by the employee in reporting a false claim to the employer or to a government body.

The policy provides that in the event “if employee, contractor or vendor witnesses, learns of, or is asked to participate in, an activity that could potentially violate or is suspected or known to violate this Compliance Plan or any Wayne County policy, or any law or regulation, he or she must report the request and the activity."

According to the statement, "Employees, contractors or vendors should endeavor to contact their supervisor, acting supervisor, or department head first. If those persons are not available, or the reporter has reason to believe that the supervisor or department head is a party to the activity, or if the suspected violation presents an immediate or serious danger to the public health or safety, then the employee, contractor or vendor shall contact the Compliance Officer.”

As to New York State’s False Claims Act, Article 13, State Finance Law, (NYSFCA),*** also referred to as a Qui Tam Statute or as a whistleblower law, the NYSFCA allows a private individual (including a public employee) to sue a person or company (including a fellow employee or employer in their individual capacity), "if such person or company knowingly submits a false or fraudulent claim to a state or local government." Such false or fraudulent financial claims include, but are not limited to, health care fraud in programs such as Medicaid.

* On the Internet at: http://www.law.cornell.edu/uscode/31/3729.html

** One of the "ancient common law writs," a writ of qui tam allows a private individual to prosecute an alleged violation of §3729. If successful, the individual can receive all or part of any penalty imposed. A private person may bring such a civil action pursuant to §3730 of the Act, which provides that "The action shall be brought in the name of the Government [by a private individual]."

*** See, also, §740 of the State Labor Law.

The full text of the Wayne County policy statement is available on the Internet at:
http://www.co.wayne.ny.us/Departments/ctyattorney/Wayne%20County%20Compliance%20Plan%20-%20Final%20_1_.pdf

Revised Model State Administrative Procedure Act

Revised Model State Administrative Procedure Act
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/

From the National Conference of Commissioners on Uniform State Laws (NCCUSL) web site:

The Revised Model State Administrative Procedure Act is an update of the 1980 act of the same name.

The 1980 Act provided procedures for promulgating administrative regulations and for adjudicating disputes before administrative bodies.

The Revision updates the act to recognize electronic communications and other state procedural innovations since the Act was originally promulgated.

The draft presented at the recently completed Annual Meeting, along with other related materials, is available here.

Edward M. “Ted” McClure
Phoenix School of Law

Oregon retired police officers do not have a property interest in continuing in the health insurance plan available to police officers on active duty

Oregon retired police officers do not have a property interest in continuing in the health insurance plan available to police officers on active duty
Doyle v City of Medford, USCA, 9th Circuit, No. 09-16037

Although the City of Medford, Oregon did not provide health insurance coverage to its retired police officers upon their retirement, the retirees could elect to remain covered in the City’s plan for 18 months after their retirement under the Consolidated Omnibus Budget Reconciliation Act of 1985, COBRA, 29 U.S.C. §§1161-1168.

After that 18-month period, the retired police officer could enroll in the Oregon Public Employees Retirement System Health Insurance Program. The City made employer contributions to the Retirement System’s Health Insurance Program.

Ronald Doyle and other retired police officers sued the City and its City Manager, Michael Dyal, contending that they should be provide with the same health insurance coverage available to active police officers pursuant to a collective bargaining agreement between the City and the employee organization representing the police officers upon their retirement.

The US Court of Appeals, Ninth Circuit, ruled that the City of Medford’s decision to deny “active employee” health insurance coverage to its retired police officers did not violate their due process rights as Oregon Revised Statutes §243.303 did not create a property interest in having such health insurance coverage continue into retirement. Accordingly, said the court, the retired police officers lacked a legally protected property interest to the health insurance benefits available to active City police officers under the controlling collective bargaining agreement.

Noting that §243.303 provides that “A local government must make health insurance coverage available to retirees only if the government offers such coverage to current officers and employees,” the Circuit Court held that such a provision did not bar a jurisdiction from considering “real-world circumstances” that could excuse its obligation to cover retirees, citing Town of Castle Rock v. Gonzales, 545 U.S. 748.

In contrast, in Armistead v Vernitron Corp., 944 F.2d 1287, the Circuit Court of Appeals, Sixth Circuit, affirmed a lower court ruling that held that when a collective bargaining agreement is intended to give retirees with lifetime health and life insurance benefits, such benefits were not subject to unilateral termination.

N.B. “Participating employers” in the State's Employee Health Insurance Plan must allow employees to continue in the plan upon retirement [§163.4, Civil Service Law] and are required to pay "not less than fifty percentum of the cost of ... the coverage of its employees and retired employees ... [and] not less than thirty-five percentum ... for the coverage of dependents of employees and retired employees..." [§167.2, Civil Service Law].

The Doyle decision is posted on the Internet at:
http://scholar.google.com/scholar_case?case=13582283851357318805&hl=en&as_sdt=2&as_vis=1&oi=scholarr