Determining an educator’s seniority for the purposes of layoff and reinstatement from a preferred list
Donna Marsico v Board of Education of the City School District of the City of Mount Vernon, Decisions of the Commissioner of Education, Decision #16,158
Donna Marsico was appointed to a probationary appointment as a teacher of business education, effective February 1, 1989. Her position was abolished in 1990 and her name was placed on a preferred list. Marsico was subsequently appointed as a business education teacher in the district, effective September 1, 1993 and was granted tenure, effective September 1, 1994.
On September 24, 2008, the board established a preferred eligibility list and Marisco was listed as the most senior business education teacher. Marsico was then told that her position was abolished for budgetary reasons effective October 3, 2008.
As the result of an “opinion letter” from the New York State United Teachers dated June 24, 2009, the board rescinded the September 24, 2008 seniority list and established a new seniority list with Concetta Fantini listed as the most senior business education teacher.
In September 2009, Fantini was reinstated from the reconstituted preferred list to a business education position with the district. When Marisco sued in Supreme Court, Westchester County, challenging Fantini’s appointment the court “issued a stay” on the proceeding to permit Marisco to appeal to the Commissioner.
In her appeal to the Commissioner Marisco claimed that she was “continuously employed as a tenured business education teacher from 1993 until her layoff in October 2008, rendering her the most senior business education teacher and eligible for the first recall from the preferred eligibility list.”
The school board, on the other hand, argued that Marisco “cannot claim seniority credit for years served in a non-tenure track position that does not require a teaching certificate. Therefore, such service is not “service in the system” as required under Education Law §2510(3) for purposes of recall rights.”
The Commissioner found that, based Marisco employment record, she served as an adult education teacher in a distance-learning program from September 1, 1993 through the 2006-2007 school year. Accordingly, said the Commissioner, “Since none of the tenure areas prescribed in Subpart 30-1 of the Rules of the Board Regents relate to teachers of adult education and there is no teaching certificate required for such position, I find that [Marisco’s] service as an adult education teacher was in a non-tenure track position and cannot be considered for purposes of recall rights,” citing Appeal of Thomas, Commissioner’s Decision #13,275.
Further, said the Commissioner, “It is well settled that for purposes of determining the recall rights of teachers on a preferred eligibility list, length of service in the system is used, not length of service within a particular tenure area,” citing Mahony v. Bd. of Educ. of Mahopac Cent. School Dist., 140 AD2d 33, appeal denied 73 NY2d 703.
As to what is considered “length of service in the system,” the Commissioner concluded that the phrase “length of service in the system” means length of service as a professional educator as defined in §30-1.1 of the Commissioner’s regulations.
Accordingly, said the Commissioner, Marisco’s service from September 1, 1993 until the 2006-2007 school year was not in a tenure-bearing position and, therefore, cannot be counted as “service in the system” for purposes of recall rights under Education Law §2510(3).
However, the Commissioner said that although he was “constrained to dismiss this appeal,” he noted that “the board lacked the authority to grant [Marisco] tenure in the business education tenure area for her service as an adult education teacher” and said that the board must follow “all pertinent provisions of the Civil Service Law, Education Law §2510 and Part 30 of Rules of the Board of Regents” in this regard.
NYPPL Comments: §80 of the Civil Service Law, which applies to individuals in the competitive class, provides, in pertinent part, that layoffs "shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs.”
In contrast to “service in the system” within the meaning of §30-1.1 of the Commissioner’s Regulations, for the purposes of §80 of the Civil Service Law, once having attained permanent status an employee’s “seniority” is not truncated should he or she subsequently be appointed as a provisional employee or temporary employee or to a position in the exempt, noncompetitive or labor class or to a position in the unclassified service.
In the words of the statute, “A period of employment on a temporary or provisional basis, or in the unclassified service, immediately preceded and followed by permanent service in the classified service, shall not constitute an interruption of continuous service for the purposes of this section; nor shall a period of leave of absence without pay pursuant to law or the rules of the civil service commission having jurisdiction, or any period during which an employee is suspended from his position pursuant to this section, constitute an interruption of continuous service for the purposes of this section.”
Further, seniority is measured from the individual’s effective date of initial, uninterrupted, permanent appointment and not from the date he or she attained tenure in such position.
§80.2 of the Civil Service Law measures “continuous service” from the individual’s date of his or her first appointment on a permanent basis in the classified service followed by continuous service in the classified service on a permanent basis up to the time of the abolition or reduction of the competitive class position. Further, an employee who has resigned and who has been reinstated or reappointed in the service within one year thereafter shall, for the purposes of such section, be deemed to have continuous service.
§80-a of the Civil Service Law, which applies to employees of the State as an employer, provides similar protection for those State employees serving in a position in the non-competitive class.
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16158.htm
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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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NYPPL
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
October 12, 2010
School boards action in an executive session appointing an interim school superintendent held to have violated the State’s Open Meetings Law
School boards action in an executive session appointing an interim school superintendent held to have violated the State’s Open Meetings Law
Matter of Zehner v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 2010 NY Slip Op 51709(U), Decided on October 1, 2010, Supreme Court, Onondaga County, Judge Donald A. Greenwood [Not selected for publication in the Official Reports]
David Zehner sued the Board of Education of the Jordan-Elbridge Central School District [and others] alleging that it had violated the Open Meetings Law when it appointed Sue Gorton as its Interim Superintendent during an Executive Session of the Board.
The Board subsequently issued a “public information bulletin” to the school community, stating that "[t]he Board has decided to appoint as Interim Superintendent, Ms. Sue Gorton effective November 1, 2010." This was done, said the Board, in order to ensure a seamless transition and Ms. Gorton was to begin working during the summer of 2010 on District-wide matters with Mrs. Marilyn Dominick. Mrs. Dominick, the current superintendent, was scheduled to retire effective November 1, 2010.
Zehner attorney wrote to the Board contending that the appointment of Gorton was in violation of the Open Meetings Law and that it was not properly noticed on the meeting agenda or discussed in open session. The Board did not response.
Failing to receive a response from the Board, Zehner sued, seeking a court order declaring that the Board's actions to appoint Gorton as Interim Superintendent while in Executive Session violated the Open Meetings Law and is therefore null and void for a number of reasons including “there is no statutory basis for the Board's action purporting to appoint an employee to the position of Interim Superintendent without a public vote or discussion and that the action….”
Although the Education Law §1708.3 provides that meetings of the board of education must be open to the public, it also permits a board to hold Executive Sessions, at which sessions only the members of such boards or the persons invited shall be present.
Judge Greenwood said that “The procedure and substance of those [executive] sessions is subject to the limitations of the Open Meetings Law,” citing Previdi v. Hirsh, 138 Misc 2d 436.
Judge Greenwood concluded that the Board violated the Open Meetings Law in number of ways, including failing “to give a sufficient reason for adjourning to Executive Session.” The court said that the Board was required to be specific in its resolution to go into executive session and its failure to do so constituted a violation of the Open Meetings Law.
The court also faulted the Board for discussing the issue of the "superintendent search" in Executive Session as there “is no exception for this type of discussion in the Open Meetings Law to take place in Executive Session.”
Further, the court held that the Board violated the Open Meetings Law by appointing Gorton as Interim Superintendent.
In the words of the court, “The act of discussing and coming to a consensus in Executive Session, but not passing a formal resolution, does not shield the Board from a violation of the law.” Rather, the Open Meetings Law was designed to “assure the public's right to be informed and it is the entire decision making process which the Legislature intended to affect by the statute, not only formal acts of voting or formal executions of documents.”
Judge Greenwood concluded that the Board members participated in a private meeting with a quorum of Board members present, where topics for discussion and eventual decision are such as would otherwise arise at a regular meeting occurred and in so doing the Board has violated the Open Meetings Law.
Finding that the Board’s appointing Gorton as Interim Superintendent violated the Open Meetings Law, Judge Greenwood declared its action void but denied Zehner motion seeking costs and reasonable attorney's fees pursuant to Public Officers Law §107(2).
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51709.htm
NYPPL
Matter of Zehner v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 2010 NY Slip Op 51709(U), Decided on October 1, 2010, Supreme Court, Onondaga County, Judge Donald A. Greenwood [Not selected for publication in the Official Reports]
David Zehner sued the Board of Education of the Jordan-Elbridge Central School District [and others] alleging that it had violated the Open Meetings Law when it appointed Sue Gorton as its Interim Superintendent during an Executive Session of the Board.
The Board subsequently issued a “public information bulletin” to the school community, stating that "[t]he Board has decided to appoint as Interim Superintendent, Ms. Sue Gorton effective November 1, 2010." This was done, said the Board, in order to ensure a seamless transition and Ms. Gorton was to begin working during the summer of 2010 on District-wide matters with Mrs. Marilyn Dominick. Mrs. Dominick, the current superintendent, was scheduled to retire effective November 1, 2010.
Zehner attorney wrote to the Board contending that the appointment of Gorton was in violation of the Open Meetings Law and that it was not properly noticed on the meeting agenda or discussed in open session. The Board did not response.
Failing to receive a response from the Board, Zehner sued, seeking a court order declaring that the Board's actions to appoint Gorton as Interim Superintendent while in Executive Session violated the Open Meetings Law and is therefore null and void for a number of reasons including “there is no statutory basis for the Board's action purporting to appoint an employee to the position of Interim Superintendent without a public vote or discussion and that the action….”
Although the Education Law §1708.3 provides that meetings of the board of education must be open to the public, it also permits a board to hold Executive Sessions, at which sessions only the members of such boards or the persons invited shall be present.
Judge Greenwood said that “The procedure and substance of those [executive] sessions is subject to the limitations of the Open Meetings Law,” citing Previdi v. Hirsh, 138 Misc 2d 436.
Judge Greenwood concluded that the Board violated the Open Meetings Law in number of ways, including failing “to give a sufficient reason for adjourning to Executive Session.” The court said that the Board was required to be specific in its resolution to go into executive session and its failure to do so constituted a violation of the Open Meetings Law.
The court also faulted the Board for discussing the issue of the "superintendent search" in Executive Session as there “is no exception for this type of discussion in the Open Meetings Law to take place in Executive Session.”
Further, the court held that the Board violated the Open Meetings Law by appointing Gorton as Interim Superintendent.
In the words of the court, “The act of discussing and coming to a consensus in Executive Session, but not passing a formal resolution, does not shield the Board from a violation of the law.” Rather, the Open Meetings Law was designed to “assure the public's right to be informed and it is the entire decision making process which the Legislature intended to affect by the statute, not only formal acts of voting or formal executions of documents.”
Judge Greenwood concluded that the Board members participated in a private meeting with a quorum of Board members present, where topics for discussion and eventual decision are such as would otherwise arise at a regular meeting occurred and in so doing the Board has violated the Open Meetings Law.
Finding that the Board’s appointing Gorton as Interim Superintendent violated the Open Meetings Law, Judge Greenwood declared its action void but denied Zehner motion seeking costs and reasonable attorney's fees pursuant to Public Officers Law §107(2).
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51709.htm
NYPPL
Considering an employee’s personnel record in a disciplinary action
Considering an employee’s personnel record in a disciplinary action
Source: 2001 No. 2 Pub. Emp. L. Notes 27
On October 1, 2010, NYPPL posted a summary of the decision in Matter of Board of Educ. of the Dundee Cent. School Dist. v Coleman, 2010 NY Slip Op 51684(U), decided October 1, 2010, Supreme Court, Yates County, Judge W. Patrick Falvey, which addressed the issue of employee conduct that was the subject of counseling memoranda serving as the basis for disciplinary charges subsequently served on the employee was posted at:
http://publicpersonnellaw.blogspot.com/2010/10/conduct-that-was-subject-of-counseling.html
A footnote in NYPPL’s summary indicated that the court had cited 2001 No. 2 Pub. Emp. L. Notes 27 among the authorities it considered in making its decision. However, this reference apparently is not easy to locate. Accordingly. it has been set out below for those interested.
Our subscribers raise interesting questions. For example, a subscriber recently asked if NYPER was aware of any court decisions concerning the introduction of an employee's employment history into the record during a disciplinary hearing?
According to the subscriber, the Section 75 hearing officer admitted the accused employee's performance evaluations during the proceeding at the request of the appointing authority, indicating that the evaluations would be considered in determining the penalty the hearing officer would recommend if he found the employee guilty of one or more of the disciplinary charges.
The question raises a number of issues, including the following:
1. May such records be introduced into the record at the disciplinary hearing?
2. If the employee is found guilty of charges unrelated to adverse material in his or her personnel record, may the records be used to determine the penalty to be imposed by the hearing officer? By the appointing authority?
3. If the employee is found guilty of charges related to an adverse comment in his or her personnel records should further consideration be barred on the grounds of "double jeopardy?"
Introducing the personnel record:
In Scott v Wetzler, 195 AD2d 905, the Appellate Division, Third Department rejected Scott's argument that he was denied due process because the Section 75 hearing officer allowed evidence concerning his performance evaluations to be introduced during the disciplinary hearing.
The court said that "such evidence was relevant to the determination of an appropriate penalty," noting that Scott was allowed an opportunity to rebut these records and to submit favorable material contained in his personnel file.
Considering the personnel record:
Having introduced the employee's personnel records, for what purpose(s) may they be used?
In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if:
1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and
2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer "mitigating circumstances."
Is criticism discipline?
In Holt v Board of Education, 52 NY2d 625, the Court of Appeals ruled that performance evaluations and letters of criticism placed in the employee's personnel file were not "disciplinary penalties" and thus could be placed there without having to first hold a disciplinary proceeding.
In other words, the appointing authority's placing correspondence critical of the employee's conduct or performance in his or her personnel file did not constitute discipline.
The basic rule set out in Holt is that a statutory disciplinary provision such as Section 75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism.
In contrast, alleged "constructive criticism" may not be used to frustrate an employee's right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure.
As the Commissioner of Education indicated in Fusco v Jefferson County School District, CEd, decided June 27, 2000, and Irving v Troy City School District, CEd 14,373, decided May 25, 2000:
Comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.
What distinguishes lawful "constructive criticism" of an individual's performance by a supervisor and supervisory actions addressing an individual's performance that are disciplinary in nature? This could be a difficult question to resolve.
As the Court of Appeals indicated in Holt, a "counseling memorandum" that is given to an employee and placed in his or her personnel file constitutes a lawful means of instructing the employee concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work.
In the Fusco and Irving cases the Commissioner of Education found that "critical comment" exceeded the parameters circumscribing "lawful instruction" concerning unacceptable performance.
In Fusco's case, the Commissioner said that "contents of the memorandum" did not fall within the parameters of a "permissible evaluation" despite the school board's claim that the memorandum was "intended to encourage positive change" in Fusco's performance.
The Commissioner noted that it "contains no constructive criticism or a single suggestion for improvement." Rather, said the Commissioner, the memorandum focused on "castigating [Fusco] for prior alleged misconduct."
In Irving's case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal.
The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law.
Double jeopardy
A "counseling memorandum" is placed in an individual's personnel file and later disciplinary charges involving the same event(s) are served upon the individual. Does including or incorporating the events set out in the counseling memorandum as charges constitute "double jeopardy?"
No, according to the Court of Appeal's ruling in Patterson v Smith, 53 NY2d 98. In Patterson the court said that including charges concerning performance that were addressed in a counseling memorandum was not "double jeopardy."
The court explained that a "proper counseling memoranda" contains a warning and an admonition to comply with the expectations of the employer. It is not a form of punishment in and of itself.
Accordingly, case law indicates that giving the employee a counseling memorandum does not bar the employer from later filing disciplinary charges based on the same event.
Further, the memorandum may be introduced as evidence in the disciplinary hearing or for the purposes of determining the penalty to be imposed if the individual is found guilty. The employer, however, may not use the counseling memorandum or a performance evaluation to avoid initiating formal disciplinary action against an individual as the Fusco and Irving decisions by the Commissioner of Education demonstrate.
NYPPL
Source: 2001 No. 2 Pub. Emp. L. Notes 27
On October 1, 2010, NYPPL posted a summary of the decision in Matter of Board of Educ. of the Dundee Cent. School Dist. v Coleman, 2010 NY Slip Op 51684(U), decided October 1, 2010, Supreme Court, Yates County, Judge W. Patrick Falvey, which addressed the issue of employee conduct that was the subject of counseling memoranda serving as the basis for disciplinary charges subsequently served on the employee was posted at:
http://publicpersonnellaw.blogspot.com/2010/10/conduct-that-was-subject-of-counseling.html
A footnote in NYPPL’s summary indicated that the court had cited 2001 No. 2 Pub. Emp. L. Notes 27 among the authorities it considered in making its decision. However, this reference apparently is not easy to locate. Accordingly. it has been set out below for those interested.
Our subscribers raise interesting questions. For example, a subscriber recently asked if NYPER was aware of any court decisions concerning the introduction of an employee's employment history into the record during a disciplinary hearing?
According to the subscriber, the Section 75 hearing officer admitted the accused employee's performance evaluations during the proceeding at the request of the appointing authority, indicating that the evaluations would be considered in determining the penalty the hearing officer would recommend if he found the employee guilty of one or more of the disciplinary charges.
The question raises a number of issues, including the following:
1. May such records be introduced into the record at the disciplinary hearing?
2. If the employee is found guilty of charges unrelated to adverse material in his or her personnel record, may the records be used to determine the penalty to be imposed by the hearing officer? By the appointing authority?
3. If the employee is found guilty of charges related to an adverse comment in his or her personnel records should further consideration be barred on the grounds of "double jeopardy?"
Introducing the personnel record:
In Scott v Wetzler, 195 AD2d 905, the Appellate Division, Third Department rejected Scott's argument that he was denied due process because the Section 75 hearing officer allowed evidence concerning his performance evaluations to be introduced during the disciplinary hearing.
The court said that "such evidence was relevant to the determination of an appropriate penalty," noting that Scott was allowed an opportunity to rebut these records and to submit favorable material contained in his personnel file.
Considering the personnel record:
Having introduced the employee's personnel records, for what purpose(s) may they be used?
In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if:
1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and
2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer "mitigating circumstances."
Is criticism discipline?
In Holt v Board of Education, 52 NY2d 625, the Court of Appeals ruled that performance evaluations and letters of criticism placed in the employee's personnel file were not "disciplinary penalties" and thus could be placed there without having to first hold a disciplinary proceeding.
In other words, the appointing authority's placing correspondence critical of the employee's conduct or performance in his or her personnel file did not constitute discipline.
The basic rule set out in Holt is that a statutory disciplinary provision such as Section 75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism.
In contrast, alleged "constructive criticism" may not be used to frustrate an employee's right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure.
As the Commissioner of Education indicated in Fusco v Jefferson County School District, CEd, decided June 27, 2000, and Irving v Troy City School District, CEd 14,373, decided May 25, 2000:
Comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.
What distinguishes lawful "constructive criticism" of an individual's performance by a supervisor and supervisory actions addressing an individual's performance that are disciplinary in nature? This could be a difficult question to resolve.
As the Court of Appeals indicated in Holt, a "counseling memorandum" that is given to an employee and placed in his or her personnel file constitutes a lawful means of instructing the employee concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work.
In the Fusco and Irving cases the Commissioner of Education found that "critical comment" exceeded the parameters circumscribing "lawful instruction" concerning unacceptable performance.
In Fusco's case, the Commissioner said that "contents of the memorandum" did not fall within the parameters of a "permissible evaluation" despite the school board's claim that the memorandum was "intended to encourage positive change" in Fusco's performance.
The Commissioner noted that it "contains no constructive criticism or a single suggestion for improvement." Rather, said the Commissioner, the memorandum focused on "castigating [Fusco] for prior alleged misconduct."
In Irving's case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal.
The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law.
Double jeopardy
A "counseling memorandum" is placed in an individual's personnel file and later disciplinary charges involving the same event(s) are served upon the individual. Does including or incorporating the events set out in the counseling memorandum as charges constitute "double jeopardy?"
No, according to the Court of Appeal's ruling in Patterson v Smith, 53 NY2d 98. In Patterson the court said that including charges concerning performance that were addressed in a counseling memorandum was not "double jeopardy."
The court explained that a "proper counseling memoranda" contains a warning and an admonition to comply with the expectations of the employer. It is not a form of punishment in and of itself.
Accordingly, case law indicates that giving the employee a counseling memorandum does not bar the employer from later filing disciplinary charges based on the same event.
Further, the memorandum may be introduced as evidence in the disciplinary hearing or for the purposes of determining the penalty to be imposed if the individual is found guilty. The employer, however, may not use the counseling memorandum or a performance evaluation to avoid initiating formal disciplinary action against an individual as the Fusco and Irving decisions by the Commissioner of Education demonstrate.
NYPPL
Employees must answer questions honestly in the course of an investigation involving job-related conduct
Employees must answer questions honestly in the course of an investigation involving job-related conduct
People v James, Court of Appeals, 93 NY2d 620
Section 106 of the Civil Service Law provides that it is a misdemeanor to obstruct the civil service rights of an individual. Cases involving violations of Section 106, however, are rarely encountered. Allegations of violating Section 106 and then committing perjury concerning events involving the preparation of a civil service examinations were factors in the James case.
Gordon, a New York City Transit Police officer, had been assigned to help draft a promotion examination for the New York City Transit Police Department. He set up a meeting at his home that James attended together with other potential examinees named Lebron, Tarquini and Gillians. Material concerning of the promotional examination was distributed, including questions that were ultimately included on the promotion test.
James and the others copied the materials distributed by Gordon and left with them after the meeting. One of the participants, Lebron, later gave photocopies of the test materials that she had copied, together with the tapes of her telephone conversation with Gordon, to the Department’s Internal Affairs Bureau.
The February 1991 promotion examination was invalidated, and a substitute examination was given on February 2, 1992. James, Tarquini and Gillians took the substitute examination and their rankings on the technical knowledge section of the test was determined to have dropped significantly below their performance on the 1991 test. James was called before the Grand Jury investigating the allegations of cheating on the test.
After being granted immunity, James testified that he had never been to Gordon’s home in 1990, that he had never been to Gordon’s home when Lebron was present and that he did not attend a study session at Gordon’s home on October 20, 1990. He was subsequently indicted on six counts of perjury based upon those sworn denials -- a grant of immunity does not afford a witness the right to commit perjury.*
The decision of the U.S. Supreme Court in La Chance v Erickson, 522 US 662, is instructive concerning such situations. Here the Court ruled unanimously that federal government agencies could mete out harsher discipline to employees who lie while being investigated for job-related conduct. Although only federal employees were involved, the ruling could influence cases involving state and local employees in similar situations.
Citing Bryson v. United States, 396 US 64, the Court said:
Our legal system provides methods for challenging the Government’s right to ask questions – lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.
Thus, said the Court, “… we hold that a government agency may take adverse action against an employee because the employee made false statements in response to an underlying charge of misconduct.”
On another point, Chief Justice William H. Rehnquist wrote that if employees remain silent, citing the Fifth Amendment or some other reason, employers are free to take such silence into consideration and draw adverse inferences in discipline.
* Gordon was also indicted by a Grand Jury on two counts of official misconduct in violation of Penal Law Section 195.00 and four counts of obstructing civil service rights in violation of Civil Service Law Section 106. In March 1994, Gordon was convicted of both counts of official misconduct and three of the four counts of obstructing civil service rights.
.
People v James, Court of Appeals, 93 NY2d 620
Section 106 of the Civil Service Law provides that it is a misdemeanor to obstruct the civil service rights of an individual. Cases involving violations of Section 106, however, are rarely encountered. Allegations of violating Section 106 and then committing perjury concerning events involving the preparation of a civil service examinations were factors in the James case.
Gordon, a New York City Transit Police officer, had been assigned to help draft a promotion examination for the New York City Transit Police Department. He set up a meeting at his home that James attended together with other potential examinees named Lebron, Tarquini and Gillians. Material concerning of the promotional examination was distributed, including questions that were ultimately included on the promotion test.
James and the others copied the materials distributed by Gordon and left with them after the meeting. One of the participants, Lebron, later gave photocopies of the test materials that she had copied, together with the tapes of her telephone conversation with Gordon, to the Department’s Internal Affairs Bureau.
The February 1991 promotion examination was invalidated, and a substitute examination was given on February 2, 1992. James, Tarquini and Gillians took the substitute examination and their rankings on the technical knowledge section of the test was determined to have dropped significantly below their performance on the 1991 test. James was called before the Grand Jury investigating the allegations of cheating on the test.
After being granted immunity, James testified that he had never been to Gordon’s home in 1990, that he had never been to Gordon’s home when Lebron was present and that he did not attend a study session at Gordon’s home on October 20, 1990. He was subsequently indicted on six counts of perjury based upon those sworn denials -- a grant of immunity does not afford a witness the right to commit perjury.*
The decision of the U.S. Supreme Court in La Chance v Erickson, 522 US 662, is instructive concerning such situations. Here the Court ruled unanimously that federal government agencies could mete out harsher discipline to employees who lie while being investigated for job-related conduct. Although only federal employees were involved, the ruling could influence cases involving state and local employees in similar situations.
Citing Bryson v. United States, 396 US 64, the Court said:
Our legal system provides methods for challenging the Government’s right to ask questions – lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.
Thus, said the Court, “… we hold that a government agency may take adverse action against an employee because the employee made false statements in response to an underlying charge of misconduct.”
On another point, Chief Justice William H. Rehnquist wrote that if employees remain silent, citing the Fifth Amendment or some other reason, employers are free to take such silence into consideration and draw adverse inferences in discipline.
* Gordon was also indicted by a Grand Jury on two counts of official misconduct in violation of Penal Law Section 195.00 and four counts of obstructing civil service rights in violation of Civil Service Law Section 106. In March 1994, Gordon was convicted of both counts of official misconduct and three of the four counts of obstructing civil service rights.
.
Court said dismissal too harsh a penalty after considering employee’s personnel file
Court said dismissal too harsh a penalty after considering employee’s personnel file
Schnaars v Copiague UFSD, 275 AD2d 462
Is dismissal too severe a penalty for a school employee who uses a school computer to find pornographic web sites? Yes, both a Supreme Court Judge and the Appellate Division ruled in the Schnaars case.
A student at Copiague High School turned on a school computer and was immediately confronted by a pornographic image. Schnaars, Copiague UFSD’s head custodian, took responsibility. Schnaars admitted that, with his subordinates, he accessed pornographic web sites during two night shift tours of duty.
The district filed disciplinary charges against him, alleging that he had used the district’s computers without authorization and neglected his duty. The hearing officer found Schnaars guilty of the charges and recommended that he be demoted to a lower grade position.
Although the board adopted the hearing officer’s findings as to guilt, it rejected the penalty recommended by the hearing officer and voted to terminate Schnaars instead.*
Schnaars sued, contending that board’s rejection of the hearing officer’s recommendation as to the penalty to be imposed was arbitrary, capricious, an abuse of discretion, and disproportionate to the offense for which he was found guilty.
New York State Supreme Court Judge Marquette L. Floyd of Suffolk County said that where the finding of guilt is confirmed and punishment has been imposed, the test is whether such punishment is “so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness,” citing the so-called Pell Standard [Pell v Board of Education, 34 NY2d 222]. Although courts rarely find that an administrative penalty violates the Pell Standard, in this instance Judge Floyd decided that dismissing Schnaars was a shockingly disproportionate penalty.
The Appellate Division affirmed the lower court’s ruling, commenting that Schnaars’ actions did not involve “moral turpitude, gross injury to the agency involved or [gross injury] to the public weal.”
Noting that “access to the school’s computers can be curtailed through adequate passwords and by ‘filtering’ software, which may also be complicated by First Amendment issues,” the Appellate Division said that although it “does not condone [Schnaars’] individual or supervisory behavior, his termination is so disproportionate to the facts that it may not be permitted to stand.”
What are some of the factors that should be considered in settling a disciplinary penalty? The Appellate Division said that where there is no “grave moral turpitude” and no grave injury to the agency or to the public weal,” the following should be considered:
1. The length of employment of the employee;
2. The probability that a dismissal may leave the employee without any alternative livelihood;
3. The employee’s loss of retirement benefits; and
4. The impact upon his innocent family.
In contrast, the court said that no such consideration of “mitigating circumstances” is required in situations involving such actions as a “deliberate, planned, unmitigated larceny, or bribe taking, or [a] demonstrated lack of qualification for the assigned job.”
The decision observed that Schnaars “candidly acknowledged his violation of District policy and sought to correct [the] same by informing his subordinates that ‘this has got to stop.’” Another consideration, said the court, was Schnaars “otherwise 13 year unblemished record with the District with many letters of recommendation and accolades that exhibit faithful and loyal service.”
What penalty would be appropriate in this case? The court said that the district should reinstate Schnaars to his position as Head Custodian with back salary and then impose “an appropriate penalty” suggesting either “demotion and/or suspension without pay for a reasonable period, said period not to exceed ninety (90) days.”
The Appellate Division also said that the district “shall be entitled to a credit of any of [Schnaars’] earned income from the time of his termination to the date of reinstatement.”
However, Civil Service Law Section 77 -- compensation of officers and employees reinstated by court order -- currently authorizes such adjustment only for “unemployment insurance benefits.” In 1985, Section 77 was amended to eliminate the clause allowing adjustments for “compensation which [the individual] may have earned in any other employment or occupation...” [Chapter 851, Laws of 1985].
On another area of concern: the decision sets out the penalty that the court said could be imposed: demotion and/or suspension without pay not to exceed ninety days.
This suggests that the district could demote Schnaars or it could suspend him without pay or it could impose both penalties. Courts, however, have ruled that only one of the several penalties set out in Section 75 may be imposed on an individual found guilty of Section 75 disciplinary charges -- the imposition of multiple penalties is not authorized. In other words, cumulative penalties are not permitted in such cases.
In Matteson v City of Oswego, 588 NYS2d 472, the Appellate Division overturned the penalties imposed by the appointing authority and remanded the matter for the imposition of a new, appropriate penalty.
Oswego had imposed the following penalties on Matteson: (1) suspension without pay for 30 days; and (2) demotion to a lower grade position; and (3) restitution of $3,699.48.
The Appellate Division held that the penalty meted out was contrary to law in that "the imposition of multiple penalties was improper" under 75.3 of the Civil Service Law.
In contrast, in cases involving the imposition of a penalty by an arbitrator pursuant to a "contract disciplinary procedure" the courts have held that the only limitations on the penalty to be imposed is the sound judgment of the arbitrator. Rarely are arbitrators limited as to the penalties or combination of penalties they can assign.
* Demotion or termination are among the penalties an appointing authority may impose on an employee found guilty of misconduct or incompetence pursuant to Section 75.
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Schnaars v Copiague UFSD, 275 AD2d 462
Is dismissal too severe a penalty for a school employee who uses a school computer to find pornographic web sites? Yes, both a Supreme Court Judge and the Appellate Division ruled in the Schnaars case.
A student at Copiague High School turned on a school computer and was immediately confronted by a pornographic image. Schnaars, Copiague UFSD’s head custodian, took responsibility. Schnaars admitted that, with his subordinates, he accessed pornographic web sites during two night shift tours of duty.
The district filed disciplinary charges against him, alleging that he had used the district’s computers without authorization and neglected his duty. The hearing officer found Schnaars guilty of the charges and recommended that he be demoted to a lower grade position.
Although the board adopted the hearing officer’s findings as to guilt, it rejected the penalty recommended by the hearing officer and voted to terminate Schnaars instead.*
Schnaars sued, contending that board’s rejection of the hearing officer’s recommendation as to the penalty to be imposed was arbitrary, capricious, an abuse of discretion, and disproportionate to the offense for which he was found guilty.
New York State Supreme Court Judge Marquette L. Floyd of Suffolk County said that where the finding of guilt is confirmed and punishment has been imposed, the test is whether such punishment is “so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness,” citing the so-called Pell Standard [Pell v Board of Education, 34 NY2d 222]. Although courts rarely find that an administrative penalty violates the Pell Standard, in this instance Judge Floyd decided that dismissing Schnaars was a shockingly disproportionate penalty.
The Appellate Division affirmed the lower court’s ruling, commenting that Schnaars’ actions did not involve “moral turpitude, gross injury to the agency involved or [gross injury] to the public weal.”
Noting that “access to the school’s computers can be curtailed through adequate passwords and by ‘filtering’ software, which may also be complicated by First Amendment issues,” the Appellate Division said that although it “does not condone [Schnaars’] individual or supervisory behavior, his termination is so disproportionate to the facts that it may not be permitted to stand.”
What are some of the factors that should be considered in settling a disciplinary penalty? The Appellate Division said that where there is no “grave moral turpitude” and no grave injury to the agency or to the public weal,” the following should be considered:
1. The length of employment of the employee;
2. The probability that a dismissal may leave the employee without any alternative livelihood;
3. The employee’s loss of retirement benefits; and
4. The impact upon his innocent family.
In contrast, the court said that no such consideration of “mitigating circumstances” is required in situations involving such actions as a “deliberate, planned, unmitigated larceny, or bribe taking, or [a] demonstrated lack of qualification for the assigned job.”
The decision observed that Schnaars “candidly acknowledged his violation of District policy and sought to correct [the] same by informing his subordinates that ‘this has got to stop.’” Another consideration, said the court, was Schnaars “otherwise 13 year unblemished record with the District with many letters of recommendation and accolades that exhibit faithful and loyal service.”
What penalty would be appropriate in this case? The court said that the district should reinstate Schnaars to his position as Head Custodian with back salary and then impose “an appropriate penalty” suggesting either “demotion and/or suspension without pay for a reasonable period, said period not to exceed ninety (90) days.”
The Appellate Division also said that the district “shall be entitled to a credit of any of [Schnaars’] earned income from the time of his termination to the date of reinstatement.”
However, Civil Service Law Section 77 -- compensation of officers and employees reinstated by court order -- currently authorizes such adjustment only for “unemployment insurance benefits.” In 1985, Section 77 was amended to eliminate the clause allowing adjustments for “compensation which [the individual] may have earned in any other employment or occupation...” [Chapter 851, Laws of 1985].
On another area of concern: the decision sets out the penalty that the court said could be imposed: demotion and/or suspension without pay not to exceed ninety days.
This suggests that the district could demote Schnaars or it could suspend him without pay or it could impose both penalties. Courts, however, have ruled that only one of the several penalties set out in Section 75 may be imposed on an individual found guilty of Section 75 disciplinary charges -- the imposition of multiple penalties is not authorized. In other words, cumulative penalties are not permitted in such cases.
In Matteson v City of Oswego, 588 NYS2d 472, the Appellate Division overturned the penalties imposed by the appointing authority and remanded the matter for the imposition of a new, appropriate penalty.
Oswego had imposed the following penalties on Matteson: (1) suspension without pay for 30 days; and (2) demotion to a lower grade position; and (3) restitution of $3,699.48.
The Appellate Division held that the penalty meted out was contrary to law in that "the imposition of multiple penalties was improper" under 75.3 of the Civil Service Law.
In contrast, in cases involving the imposition of a penalty by an arbitrator pursuant to a "contract disciplinary procedure" the courts have held that the only limitations on the penalty to be imposed is the sound judgment of the arbitrator. Rarely are arbitrators limited as to the penalties or combination of penalties they can assign.
* Demotion or termination are among the penalties an appointing authority may impose on an employee found guilty of misconduct or incompetence pursuant to Section 75.
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Communications between department’s attorney and agency employees privileged
Communications between department’s attorney and agency employees privileged
Coleman v City of New York, NYS Supreme Court, Judge Peck, [Not selected for publication in the Official Reports]
In the private sector, conversations between an attorney and his or her client are private and cannot be disclosed without the client’s permission. If the employer is an entity such as the New York City Department of Health, and different employees speak with the department’s attorney, are such conversations privileged?
In the Coleman case, a state Supreme Court Justice ruled that the answer is yes.
State Supreme Court Judge George R. Peck said that the rules that applied in cases involving a private corporation were equally applicable to governmental employers. Just as the attorney-client privilege applies to confidential communications between a corporation and its attorneys, including communications between the corporation’s attorney and low-level corporate employees, the “Defendant City is a legal creation which acts through its employees, at all levels.”
Michael Coleman was terminated from his position at the Health Department in May 1998 as a result of having been prosecuted for taking bribes. Coleman denied taking any bribes and sued the city. His complaint alleged false arrest, malicious prosecution and related charges.
Coleman’s attorney attempted to depose a number of city employees concerning communications they had with an Assistant Corporation Counsel [ACC] concerning the case. The ACC objected, contending that conversations were privileged.
The attorney-client privilege generally excuses an attorney from having to disclose the content of communications concerning actual or potential litigation between the attorney and his or her client unless the client waives the privilege. Further, the attorney-client privilege may be invoked only by the client, or by the attorney on behalf of the client. The client, of course, may elect to “waive” the privilege.
Coleman’s attorney claimed that there was no attorney-client privilege because the employees he sought to depose had not asked the ACC to represent them in this litigation.
State Supreme Court Judge Peck decided that the communications were, in fact, privileged and prohibited Colemen’s attorney from deposing the employees concerning their conversations or other communications with the ACC. According to the ruling, it did not make any difference whether the employee-witness asked the Corporation Counsel to represent him or not -- the communications were privileged.
Judge Peck held that just as attorneys for corporations and for individual clients, the defendant City must have the same opportunity for a privileged “open dialogue” by its attorney in preparing city employee-witnesses for trial. Otherwise, the city “would be at a disadvantage in preparing for trial as compared to other types of parties.”
In the Matter of Lindsey Grand Jury Testimony, 148 F.3d 1100, a U.S. Circuit Court of Appeals held that if a public official wishes to claim the attorney-client privilege in connection with discussions involving “official business” with an attorney, he or she should employ and consult with a private attorney instead of discussing the matter with a government employee-attorney.
Here the issue was whether the conversation between the President of the United States and a federal government employee-attorney serving as his counsel for the purpose of obtaining legal advice triggered the attorney-client privilege with respect to compelling the attorney to testify before a grand jury concerning his conversations with the President. The Circuit Court ruled that in this instance no attorney-client relationship was created.
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Coleman v City of New York, NYS Supreme Court, Judge Peck, [Not selected for publication in the Official Reports]
In the private sector, conversations between an attorney and his or her client are private and cannot be disclosed without the client’s permission. If the employer is an entity such as the New York City Department of Health, and different employees speak with the department’s attorney, are such conversations privileged?
In the Coleman case, a state Supreme Court Justice ruled that the answer is yes.
State Supreme Court Judge George R. Peck said that the rules that applied in cases involving a private corporation were equally applicable to governmental employers. Just as the attorney-client privilege applies to confidential communications between a corporation and its attorneys, including communications between the corporation’s attorney and low-level corporate employees, the “Defendant City is a legal creation which acts through its employees, at all levels.”
Michael Coleman was terminated from his position at the Health Department in May 1998 as a result of having been prosecuted for taking bribes. Coleman denied taking any bribes and sued the city. His complaint alleged false arrest, malicious prosecution and related charges.
Coleman’s attorney attempted to depose a number of city employees concerning communications they had with an Assistant Corporation Counsel [ACC] concerning the case. The ACC objected, contending that conversations were privileged.
The attorney-client privilege generally excuses an attorney from having to disclose the content of communications concerning actual or potential litigation between the attorney and his or her client unless the client waives the privilege. Further, the attorney-client privilege may be invoked only by the client, or by the attorney on behalf of the client. The client, of course, may elect to “waive” the privilege.
Coleman’s attorney claimed that there was no attorney-client privilege because the employees he sought to depose had not asked the ACC to represent them in this litigation.
State Supreme Court Judge Peck decided that the communications were, in fact, privileged and prohibited Colemen’s attorney from deposing the employees concerning their conversations or other communications with the ACC. According to the ruling, it did not make any difference whether the employee-witness asked the Corporation Counsel to represent him or not -- the communications were privileged.
Judge Peck held that just as attorneys for corporations and for individual clients, the defendant City must have the same opportunity for a privileged “open dialogue” by its attorney in preparing city employee-witnesses for trial. Otherwise, the city “would be at a disadvantage in preparing for trial as compared to other types of parties.”
In the Matter of Lindsey Grand Jury Testimony, 148 F.3d 1100, a U.S. Circuit Court of Appeals held that if a public official wishes to claim the attorney-client privilege in connection with discussions involving “official business” with an attorney, he or she should employ and consult with a private attorney instead of discussing the matter with a government employee-attorney.
Here the issue was whether the conversation between the President of the United States and a federal government employee-attorney serving as his counsel for the purpose of obtaining legal advice triggered the attorney-client privilege with respect to compelling the attorney to testify before a grand jury concerning his conversations with the President. The Circuit Court ruled that in this instance no attorney-client relationship was created.
.
October 09, 2010
Social Media - its use by employers in pre-employment, employment and post-employment situations
Social Media - its use by employers in pre-employment, employment and post-employment situations
Source: Article by Eileen Morgan Johnson, Esq. of Whiteford, Taylor Preston [emjohnson@wtplaw.com ]. Copyright 2010 Eileen Morgan Johnson, All rights reserved
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Pre-employment screening
Employers are taking advantage of the free information on social media websites and communication tools to screen applicants or to perform pre-offer due diligence on successful applicants. It's not just people in their 20's and 30's who have online profiles and the use of social media by human resource professionals is not a passing fad.
There are a variety of resources that can be consulted such as LinkedIn®, MySpace™ and Facebook. Users of these three sites create an individual profile that can include information about their work history, extracurricular activities, and contacts. Other sites such as Twitter™ and YouTube can also yield information on applicants that might be valuable in making a decision to extend or withhold an offer of employment. For those employers who are unsure about using social media sites, a simple search using Google™ or some other search engine can also yield potentially interesting information.
What are employers looking for? Social media profiles can provide a lot of valuable information. While an employer should not rely solely on these sites to verify information on employment applications, they can be used to discredit applicants or to provide another view of the person behind the resume or online application. Online profiles can provide information on the person's:
Professional credentials
Career objectives
Maturity and judgment
Abuse of drugs or alcohol
Current employment status
Red flags
A June 2009 CareerBuilder survey of 2,600 hiring managers found that 45% of them use social media in the hiring process. That was double the number of hiring managers that reported such use in 2008. What's more, 11% planned to start using social media for prescreening. Eighteen percent or almost one in five hiring managers surveyed reported finding information online that encouraged them to hire candidates:
Profile - good feel for personality and "fit"- 50%
Profile supported professional qualifications - 39%
Candidate was creative - 38%
Solid communication skills - 35%
Candidate well rounded - 33%
Good references posted by others - 19%
Candidate received awards - 15%
However, twice as many (35%) hiring managers reported finding information that led them to not hire a candidate, including:
Inappropriate photos or postings - 53%
Postings on drinking or drug use - 44%
Bad-mouthing previous employer, co-workers or clients - 35%
Poor communication skills - 29%
Discriminatory comments - 26%
Lied about qualifications - 24%
Shared confidential information from previous employer - 20%
Potential pitfalls of screening
Screening with social media has some drawbacks. It can provide too much information about job applicants, including some information that cannot be considered in the employment decision. Some online content can be questionable in terms of its origin or truthfulness. Moreover, some employers are concerned about invading applicants' privacy.
Too much information
Certain information that can be found in an applicant's online profile cannot be used as the basis for an employment decision. These include information on the applicant's race, religion, national origin, age, pregnancy status, marital status, disability, sexual orientation (some state and local jurisdictions), gender expression or identity (some state and local jurisdictions) and genetic information. While it is best to avoid obtaining or even seeing this information, it is often prominently displayed on social networking profiles.
A potential solution is to assign one person to review the social media sites who is not part of the decision making process. That person should filter out any information regarding membership in a protected class and only pass on information that may be considered in the hiring process. The most fundamental way to protect against discrimination claims in using information gleaned from social media sites in the employment decision process is consistency. Employers should keep records of information reviewed and used in any employment decision.
Quality of information
Online information is not always reliable. The first rule is to make sure that the person whose profile you are viewing is actually your job applicant. It is not unusual for people to have similar names or even the same name. If you have confirmed the identity of the applicant, keep in mind that there is a possibility that not all of the information in the profile is correct. Profile information might have been deliberately falsified by the applicant or a friend or significant other with access to the profile login information.
Employers should also recognize that any site provides a limited picture of the individual. Remember the intended audience. On sites like LinkedIn, the intended audience is other professionals. However, on Facebook and MySpace, profiles are often developed for close friends and family. And some people enjoy creating a new persona for their online life, one that has no relationship to who they are in real life.
Invasion of privacy
Employers have little risk that viewing applicants' profiles, blogs or other online postings will give rise to invasion of privacy claims. Users of social networking sites usually have the option to set privacy settings on their personal pages. Their personal pages can be available to any user of the network, or can be restricted to only individuals authorized by the user. A critical question to ask in evaluating an invasion of privacy claim is whether there was a reasonable expectation of privacy. To avoid the potential for liability, employers should avoid attempts at circumventing the privacy settings put in place by users. Only view information that is readily accessible and intended for public viewing.
Google™ and other search engines
In a recent Monster.com report, 77% of employers surveyed reported performing a "Google" search on job applicants. Google is popular for the amount of information that can be discovered and the ease of use. In addition to the concern noted above that a Google search might return too much information, there are additional concerns about the quality of the information retrieved. The breadth of information that a Google search can produce has its own drawbacks including difficulty in identifying sources of search results.
As of now, employers are unlikely to incur liability based on Google searches of job applicants. To further protect against liability, employers should be consistent in their search practices, recognize the limits of online searches, and be sure the information they find actually relates to their applicants.
Current law on reviewing social media sites
There are no court decisions yet imposing liability for an employer's review of a social networking site in the pre-employment context. This is not a guarantee that such liability will not be imposed in the future. For now, the potential for liability is minimal in the absence of misconduct or discrimination by the employer. The potential for liability can be further reduced by:
- Being consistent in prescreening all applicants for certain positions or only those already selected for interviews
- Having someone other than the decision maker filter out protected class information if possible
- Keeping records of the basis for each employment decision
- Not circumventing privacy settings established on applicants' networking sites
If employers have any questions about whether information found through pre-employment screening should be used in the decision making process, they should consult employment counsel before using that information.
Part II - Social Media in the Workplace
The use of social media in employment and post-employment situations.
Social media is changing communications between employers and employees and among co-workers.
Employee communications
The employee newsletter is out and the company Facebook group is in. Employees of the 21st century want a different relationship with their employer and co-workers than that of prior generations. They are used to receiving information that is current and relevant to them, and they expect the same ability to preselect and customize the information they receive in the workplace. Employees want to be able to ask questions and provide feedback to management. With more employees teleworking or working from multiple locations, they want the ability to communicate with their co-workers. Today's workers like to create their own news in their personal lives and share it with others electronically, and they expect to be able to do the same with their work lives.
The International Association of Business Communicators Research Foundation & Bucks Consultants surveyed 1,500 employers in June 2009. An astonishing 97% of the employers said that they frequently use social media to communicate with their employees. Of these, 19% reported occasional use, with only 1% reporting that they used social media rarely or never. Whether by company emails, an intranet website, Facebook group or other tools, clearly social media have become critical to employer/employee communications.
Social media usage policies
Just as employers adopted Internet and computer use policies in the 1990's, now they are developing social media usage policies. These policies can be part of the company's electronic communications usage policy or a stand-alone policy. The key to an effective social media usage policy is frequent adaptation to new technologies and programs, new legal requirements related to both technology and the workplace, and communication with employees.
Distractions and productivity
Employers worry about lost employee productivity due to the distractions of social media in the workplace. The temptations to communicate with their friends and family members are everywhere. Text messaging, cell phones and instant messaging provide near instantaneous dialogue which can be more interesting than the daily work assignments.
Twitter feeds and other alerts are used to notify blog followers when a new posting has been added. Younger workers are used to multitasking. They made their way through high school and college with laptops, iPods, and cell phones, and can write a paper, text a friend, and download music simultaneously while watching television and talking with friends. They want their work lives to function the same way their personal lives do with constant stimulation and communication.
Do employers have the right to force their employees to focus on the task at hand and not use social media while at work? The courts are still working that issue out, but at least one federal court has suggested that employers might have the right to prevent employees from accessing blogs while at work. Nickolas v. Fletcher, 2007 U.S. Dist. Lexis 23843 (E.D. Ky. 2007).
Monitoring
An employer might want to monitor its employees' online conduct while at work. The argument goes something like this: "The employee is on my time, in my facility, and using my computer equipment. Why shouldn't I be able to monitor what's going on?"
Any monitoring should be done with care. In Pietrylo v. Hillstone Restaurant Group, 2008 WL 6085437 (D.N.J. 2008), a Newark jury found that the employer violated the federal Stored Communications Act by secretly monitoring employees' postings on a private password-protected Internet chat room. This followed an earlier case, Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), where the court also held that secret monitoring by an employer of a password protected website visited by an employee while at work violated the federal Stored Communications Act.
However, earlier this year, the U.S. Supreme Court unanimously held that a public employer's review of an employee's text messages on an employer-issued device was a reasonable search under the Fourth Amendment. City of Ontario v. Quon, No. 08-1332, 560 U.S. ___ (2010). This case involved the use of a pager issued to the employee by the employer. The employer authorized a set number of text messages per month and allowed employees to pay for any overage. Employees were not prohibited from using the pager to send and receive personal text messages. The employer noticed that one employee had an excessive number of text messages and asked its service provider for copies of the text messages from that employee's phone. It found messages to the employee's wife and girlfriend. The employee claimed that his privacy had been violated. The lower court had held that the service provider violated the Stored Communications Act when it provided the employee's text messages to the employer. The Supreme Court reversed, holding that the employer had a right to see text messages sent and received on the employer's pager. While this case involved a public employer (and courts have typically allowed greater employer control of public employees), the court clearly stated that employees do not have an expectation of privacy when using equipment provided by the employer.
Other Worries
Employers have more serious potential issues than lost productivity to worry about. Social media tools present an easy method of accessing and communicating information. This can include the unauthorized disclosure of confidential information. While the concerns about unauthorized disclosure using social media tools are similar to unauthorized disclosure in more traditional ways, now the disclosure is at the click of a mouse to multiple recipients. Unauthorized disclosure can include the business plans and information of clients as well as those of the employer.
Unfortunately, social media tools can also be used to harass co-workers. What might be a harmless exchange of jokes or photos between friends can take on a new life when they are spread around the office. The seemingly innocent friend request on Facebook from a co-worker can take on new meaning. How does a female employee respond to a "friend" request from her male supervisor?
The technology behind social media presents another new challenge to employers, the inability to effectively respond to misinformation. A fleeting complaint lingers forever and can be accessed or rebroadcast by other employees or those outside of the company. Information remains in cyberspace indefinitely. The employer's response to misinformation or even a later retraction by the defaming party is unlikely to reach all who received the initial communication. Any communication issued by an employee is seemingly valid, even when the employee is a self-appointed company "spokesperson."
Employers might consider charging employees who misuse social media at the workplace with using company equipment inappropriately and follow appropriate disciplinary measures. The social media usage policy should provide for discipline for abuse of the policy and explicitly state that social media may not be used to violate other employer policies, including harassment and non-discrimination policies.
Internal investigations
In a June 2009 survey, Proofpoint asked US employers to report on internal investigations at their companies in the past 12 months. The results of the survey show that employers do have a reason to be concerned about leaks of confidential or proprietary information. Employers reported conducting investigations of leaks by:
Email - 43%
Blog or message board - 18%
Video - 18%
Facebook and LinkedIn - 17%
Twitter or SMS texts - 13%
The same employers also reported on the results of their investigations, with a substantial number finding violations of company policies. The rates of employees disciplined or terminated for policy violations were:
Email - 31% terminated
Blog or message board - 17% disciplined, 9% terminated
Video - 15% disciplined, 8% terminated
Social networks - 8% terminated
Twitter/SMS texts - no reported actions
Employer responses
Employers can take a number of measures to reduce the problems that can arise from the use or misuse of social media. As a first step, employers should remind their employees that they have no expectation of privacy when using the employer's electronic equipment or network. This includes employer supplied smart phones, voice mail, and email. Next, employers should review and update as necessary their Internet usage policies to include the use of social media and clearly state what employee actions will result in discipline or even termination.
To address the potential misuse of social media, a social media usage policy should prohibit the use of the employer's name by employees outside of official company communications. The policy also should discipline employees for posting any negative statements about the employer or any derogatory comments about the employee's co-workers or supervisors.
Whether it is two pizza parlor employees abusing food for their YouTube video or anonymous misstatements on a blog about a company's products or services, an employer's reputation can be easily and speedily damaged through the misuse of social media tools. Postings favoring the employer's competitors or slamming its customers, or, in the case of associations, its members, can also be detrimental and the intentional disclosure of confidential employer information can be devastating.
Employer social media policies should prohibit:
Disclosure of confidential employer information
Discrimination against or harassment of co-workers
Using the employer's trademarks Infringing the intellectual property rights of others
Making statements adverse to the employer's business interests or reputation
Criticism of customers or business partners
Statements supporting competitors
Obscenity
Legal limitations
Multijurisdictional employers may face inconsistent laws when trying to establish uniform policies for their employees. Some states prohibit an employer from acting with respect to employee activity that is not related to the employer or is not on working time. In addition, there are laws that protect concerted activity by employees - the protected right of employees to discuss common issues related to the workplace (these are the laws protecting labor unions). There are also laws that protect complaints related to the violation of workplace laws such as state and federal whistleblower laws. However, employees do not have a right to engage in activity injurious to the employer that does not fall within these limited exceptions. Employers should consult with counsel before establishing policies or taking steps to address the misuse of social media by their employees.
Off- duty conduct
Employers can tread over the line when they attempt to discipline employees for their off-duty conduct. Many states have off-duty conduct laws that prohibit employers from basing employment decisions on legal activities of employees outside of work time. Employers need to be aware of the state laws applicable to each of the jurisdictions where their employees are located to avoid violating these laws.
Postings complaining about the employee's work, the employer, supervisors, or co-workers or postings critical of the employer's product or service can be grounds for disciplinary action up to and including termination. For example, a teacher who was fired for an inappropriate MySpace page sued the employer and lost in Spanierman v. Hughes, 576 F. Supp. 2d 292 (D. Conn. 2008). Even when the conduct does not rise to the level of disciplinary action, it can cause the employer to question the employee's maturity or judgment.
Post-employment
Former employees who left on their own or maintain a positive relationship with their former employer, supervisor and co-workers rarely raise concerns about the potential for harm to the employer through their online activities. However, the disgruntled former employee is a different story. Just as they are not concerned about the bridges they burn, these employees are not worried about the potential consequences of the statements they publish online or their tweets about their former employer, supervisor and even co-workers. The potential for a defamation claim against the former employee can be great. Alas, the opportunity to collect damages is not great.
Some employers have a real concern that confidential information will be released by disgruntled former employees. Requiring employees with access to confidential information, as a condition of employment, to sign a confidentiality and nondisclosure agreement which remains in effect following the termination of the employment relationship is one way to address this potential problem.
Social media non-compete
Employers who sanction employee blogs, Facebook groups, Twitter accounts, and other means of communicating through social media often do not think through the consequences of setting up these accounts with one employee as the face of the company.
What happens when the employee who has been regularly posting blogs on behalf of the company decides to leave? Who owns the profile? Who owns the content? More importantly, who owns the followers? Even if the now former employee does not object to the employer taking over his blog, what if the employer does not have the login name and password?
To address these issues, savvy employers are having their employees sign social media non-competition agreements. Under these social media non-competes, the profile, content and followers of a blog or other communication tool belong to the employer. These agreements are more akin to a non-solicitation agreement than a traditional non-compete.
They are difficult (if not impossible) to enforce but they clearly define the intent of the parties if the employer sees litigation (or alternative dispute resolution) as a necessary step to protect its brand or marketing position.
Conclusion
The now widespread use of social media in and outside of the workplace is not the end of the world as we know it. True, the situations employers can face are different, and small problems can very quickly magnify and multiply. But the sensible employer will respond appropriately, working with its employees to identify appropriate social media usage policies and exploiting the communication benefits that social media can bring to the workplace of the 21st century.
Eileen Morgan Johnson
Counsel
Whiteford, Taylor & Preston, L.L.P.
3190 Fairview Park Drive, Suite 300 Falls Church, VA 22042
t: 703-280-9271 f: 703-280-8947 m: 202-615-0894
emjohnson@wtplaw.com Bio vCard http://www.wtplaw.com/
Source: Article by Eileen Morgan Johnson, Esq. of Whiteford, Taylor Preston [emjohnson@wtplaw.com ]. Copyright 2010 Eileen Morgan Johnson, All rights reserved
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Part I - Social Media and Pre-employment Situations
Part II - Social Media and the Workplace
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Part I
The use of social media in pre-employment situations
Pre-employment screening
Employers are taking advantage of the free information on social media websites and communication tools to screen applicants or to perform pre-offer due diligence on successful applicants. It's not just people in their 20's and 30's who have online profiles and the use of social media by human resource professionals is not a passing fad.
There are a variety of resources that can be consulted such as LinkedIn®, MySpace™ and Facebook. Users of these three sites create an individual profile that can include information about their work history, extracurricular activities, and contacts. Other sites such as Twitter™ and YouTube can also yield information on applicants that might be valuable in making a decision to extend or withhold an offer of employment. For those employers who are unsure about using social media sites, a simple search using Google™ or some other search engine can also yield potentially interesting information.
What are employers looking for? Social media profiles can provide a lot of valuable information. While an employer should not rely solely on these sites to verify information on employment applications, they can be used to discredit applicants or to provide another view of the person behind the resume or online application. Online profiles can provide information on the person's:
Professional credentials
Career objectives
Maturity and judgment
Abuse of drugs or alcohol
Current employment status
Red flags
A June 2009 CareerBuilder survey of 2,600 hiring managers found that 45% of them use social media in the hiring process. That was double the number of hiring managers that reported such use in 2008. What's more, 11% planned to start using social media for prescreening. Eighteen percent or almost one in five hiring managers surveyed reported finding information online that encouraged them to hire candidates:
Profile - good feel for personality and "fit"- 50%
Profile supported professional qualifications - 39%
Candidate was creative - 38%
Solid communication skills - 35%
Candidate well rounded - 33%
Good references posted by others - 19%
Candidate received awards - 15%
However, twice as many (35%) hiring managers reported finding information that led them to not hire a candidate, including:
Inappropriate photos or postings - 53%
Postings on drinking or drug use - 44%
Bad-mouthing previous employer, co-workers or clients - 35%
Poor communication skills - 29%
Discriminatory comments - 26%
Lied about qualifications - 24%
Shared confidential information from previous employer - 20%
Potential pitfalls of screening
Screening with social media has some drawbacks. It can provide too much information about job applicants, including some information that cannot be considered in the employment decision. Some online content can be questionable in terms of its origin or truthfulness. Moreover, some employers are concerned about invading applicants' privacy.
Too much information
Certain information that can be found in an applicant's online profile cannot be used as the basis for an employment decision. These include information on the applicant's race, religion, national origin, age, pregnancy status, marital status, disability, sexual orientation (some state and local jurisdictions), gender expression or identity (some state and local jurisdictions) and genetic information. While it is best to avoid obtaining or even seeing this information, it is often prominently displayed on social networking profiles.
A potential solution is to assign one person to review the social media sites who is not part of the decision making process. That person should filter out any information regarding membership in a protected class and only pass on information that may be considered in the hiring process. The most fundamental way to protect against discrimination claims in using information gleaned from social media sites in the employment decision process is consistency. Employers should keep records of information reviewed and used in any employment decision.
Quality of information
Online information is not always reliable. The first rule is to make sure that the person whose profile you are viewing is actually your job applicant. It is not unusual for people to have similar names or even the same name. If you have confirmed the identity of the applicant, keep in mind that there is a possibility that not all of the information in the profile is correct. Profile information might have been deliberately falsified by the applicant or a friend or significant other with access to the profile login information.
Employers should also recognize that any site provides a limited picture of the individual. Remember the intended audience. On sites like LinkedIn, the intended audience is other professionals. However, on Facebook and MySpace, profiles are often developed for close friends and family. And some people enjoy creating a new persona for their online life, one that has no relationship to who they are in real life.
Invasion of privacy
Employers have little risk that viewing applicants' profiles, blogs or other online postings will give rise to invasion of privacy claims. Users of social networking sites usually have the option to set privacy settings on their personal pages. Their personal pages can be available to any user of the network, or can be restricted to only individuals authorized by the user. A critical question to ask in evaluating an invasion of privacy claim is whether there was a reasonable expectation of privacy. To avoid the potential for liability, employers should avoid attempts at circumventing the privacy settings put in place by users. Only view information that is readily accessible and intended for public viewing.
Google™ and other search engines
In a recent Monster.com report, 77% of employers surveyed reported performing a "Google" search on job applicants. Google is popular for the amount of information that can be discovered and the ease of use. In addition to the concern noted above that a Google search might return too much information, there are additional concerns about the quality of the information retrieved. The breadth of information that a Google search can produce has its own drawbacks including difficulty in identifying sources of search results.
As of now, employers are unlikely to incur liability based on Google searches of job applicants. To further protect against liability, employers should be consistent in their search practices, recognize the limits of online searches, and be sure the information they find actually relates to their applicants.
Current law on reviewing social media sites
There are no court decisions yet imposing liability for an employer's review of a social networking site in the pre-employment context. This is not a guarantee that such liability will not be imposed in the future. For now, the potential for liability is minimal in the absence of misconduct or discrimination by the employer. The potential for liability can be further reduced by:
- Being consistent in prescreening all applicants for certain positions or only those already selected for interviews
- Having someone other than the decision maker filter out protected class information if possible
- Keeping records of the basis for each employment decision
- Not circumventing privacy settings established on applicants' networking sites
If employers have any questions about whether information found through pre-employment screening should be used in the decision making process, they should consult employment counsel before using that information.
Part II - Social Media in the Workplace
The use of social media in employment and post-employment situations.
Social media is changing communications between employers and employees and among co-workers.
Employee communications
The employee newsletter is out and the company Facebook group is in. Employees of the 21st century want a different relationship with their employer and co-workers than that of prior generations. They are used to receiving information that is current and relevant to them, and they expect the same ability to preselect and customize the information they receive in the workplace. Employees want to be able to ask questions and provide feedback to management. With more employees teleworking or working from multiple locations, they want the ability to communicate with their co-workers. Today's workers like to create their own news in their personal lives and share it with others electronically, and they expect to be able to do the same with their work lives.
The International Association of Business Communicators Research Foundation & Bucks Consultants surveyed 1,500 employers in June 2009. An astonishing 97% of the employers said that they frequently use social media to communicate with their employees. Of these, 19% reported occasional use, with only 1% reporting that they used social media rarely or never. Whether by company emails, an intranet website, Facebook group or other tools, clearly social media have become critical to employer/employee communications.
Social media usage policies
Just as employers adopted Internet and computer use policies in the 1990's, now they are developing social media usage policies. These policies can be part of the company's electronic communications usage policy or a stand-alone policy. The key to an effective social media usage policy is frequent adaptation to new technologies and programs, new legal requirements related to both technology and the workplace, and communication with employees.
Distractions and productivity
Employers worry about lost employee productivity due to the distractions of social media in the workplace. The temptations to communicate with their friends and family members are everywhere. Text messaging, cell phones and instant messaging provide near instantaneous dialogue which can be more interesting than the daily work assignments.
Twitter feeds and other alerts are used to notify blog followers when a new posting has been added. Younger workers are used to multitasking. They made their way through high school and college with laptops, iPods, and cell phones, and can write a paper, text a friend, and download music simultaneously while watching television and talking with friends. They want their work lives to function the same way their personal lives do with constant stimulation and communication.
Do employers have the right to force their employees to focus on the task at hand and not use social media while at work? The courts are still working that issue out, but at least one federal court has suggested that employers might have the right to prevent employees from accessing blogs while at work. Nickolas v. Fletcher, 2007 U.S. Dist. Lexis 23843 (E.D. Ky. 2007).
Monitoring
An employer might want to monitor its employees' online conduct while at work. The argument goes something like this: "The employee is on my time, in my facility, and using my computer equipment. Why shouldn't I be able to monitor what's going on?"
Any monitoring should be done with care. In Pietrylo v. Hillstone Restaurant Group, 2008 WL 6085437 (D.N.J. 2008), a Newark jury found that the employer violated the federal Stored Communications Act by secretly monitoring employees' postings on a private password-protected Internet chat room. This followed an earlier case, Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), where the court also held that secret monitoring by an employer of a password protected website visited by an employee while at work violated the federal Stored Communications Act.
However, earlier this year, the U.S. Supreme Court unanimously held that a public employer's review of an employee's text messages on an employer-issued device was a reasonable search under the Fourth Amendment. City of Ontario v. Quon, No. 08-1332, 560 U.S. ___ (2010). This case involved the use of a pager issued to the employee by the employer. The employer authorized a set number of text messages per month and allowed employees to pay for any overage. Employees were not prohibited from using the pager to send and receive personal text messages. The employer noticed that one employee had an excessive number of text messages and asked its service provider for copies of the text messages from that employee's phone. It found messages to the employee's wife and girlfriend. The employee claimed that his privacy had been violated. The lower court had held that the service provider violated the Stored Communications Act when it provided the employee's text messages to the employer. The Supreme Court reversed, holding that the employer had a right to see text messages sent and received on the employer's pager. While this case involved a public employer (and courts have typically allowed greater employer control of public employees), the court clearly stated that employees do not have an expectation of privacy when using equipment provided by the employer.
Other Worries
Employers have more serious potential issues than lost productivity to worry about. Social media tools present an easy method of accessing and communicating information. This can include the unauthorized disclosure of confidential information. While the concerns about unauthorized disclosure using social media tools are similar to unauthorized disclosure in more traditional ways, now the disclosure is at the click of a mouse to multiple recipients. Unauthorized disclosure can include the business plans and information of clients as well as those of the employer.
Unfortunately, social media tools can also be used to harass co-workers. What might be a harmless exchange of jokes or photos between friends can take on a new life when they are spread around the office. The seemingly innocent friend request on Facebook from a co-worker can take on new meaning. How does a female employee respond to a "friend" request from her male supervisor?
The technology behind social media presents another new challenge to employers, the inability to effectively respond to misinformation. A fleeting complaint lingers forever and can be accessed or rebroadcast by other employees or those outside of the company. Information remains in cyberspace indefinitely. The employer's response to misinformation or even a later retraction by the defaming party is unlikely to reach all who received the initial communication. Any communication issued by an employee is seemingly valid, even when the employee is a self-appointed company "spokesperson."
Employers might consider charging employees who misuse social media at the workplace with using company equipment inappropriately and follow appropriate disciplinary measures. The social media usage policy should provide for discipline for abuse of the policy and explicitly state that social media may not be used to violate other employer policies, including harassment and non-discrimination policies.
Internal investigations
In a June 2009 survey, Proofpoint asked US employers to report on internal investigations at their companies in the past 12 months. The results of the survey show that employers do have a reason to be concerned about leaks of confidential or proprietary information. Employers reported conducting investigations of leaks by:
Email - 43%
Blog or message board - 18%
Video - 18%
Facebook and LinkedIn - 17%
Twitter or SMS texts - 13%
The same employers also reported on the results of their investigations, with a substantial number finding violations of company policies. The rates of employees disciplined or terminated for policy violations were:
Email - 31% terminated
Blog or message board - 17% disciplined, 9% terminated
Video - 15% disciplined, 8% terminated
Social networks - 8% terminated
Twitter/SMS texts - no reported actions
Employer responses
Employers can take a number of measures to reduce the problems that can arise from the use or misuse of social media. As a first step, employers should remind their employees that they have no expectation of privacy when using the employer's electronic equipment or network. This includes employer supplied smart phones, voice mail, and email. Next, employers should review and update as necessary their Internet usage policies to include the use of social media and clearly state what employee actions will result in discipline or even termination.
To address the potential misuse of social media, a social media usage policy should prohibit the use of the employer's name by employees outside of official company communications. The policy also should discipline employees for posting any negative statements about the employer or any derogatory comments about the employee's co-workers or supervisors.
Whether it is two pizza parlor employees abusing food for their YouTube video or anonymous misstatements on a blog about a company's products or services, an employer's reputation can be easily and speedily damaged through the misuse of social media tools. Postings favoring the employer's competitors or slamming its customers, or, in the case of associations, its members, can also be detrimental and the intentional disclosure of confidential employer information can be devastating.
Employer social media policies should prohibit:
Disclosure of confidential employer information
Discrimination against or harassment of co-workers
Using the employer's trademarks Infringing the intellectual property rights of others
Making statements adverse to the employer's business interests or reputation
Criticism of customers or business partners
Statements supporting competitors
Obscenity
Legal limitations
Multijurisdictional employers may face inconsistent laws when trying to establish uniform policies for their employees. Some states prohibit an employer from acting with respect to employee activity that is not related to the employer or is not on working time. In addition, there are laws that protect concerted activity by employees - the protected right of employees to discuss common issues related to the workplace (these are the laws protecting labor unions). There are also laws that protect complaints related to the violation of workplace laws such as state and federal whistleblower laws. However, employees do not have a right to engage in activity injurious to the employer that does not fall within these limited exceptions. Employers should consult with counsel before establishing policies or taking steps to address the misuse of social media by their employees.
Off- duty conduct
Employers can tread over the line when they attempt to discipline employees for their off-duty conduct. Many states have off-duty conduct laws that prohibit employers from basing employment decisions on legal activities of employees outside of work time. Employers need to be aware of the state laws applicable to each of the jurisdictions where their employees are located to avoid violating these laws.
Postings complaining about the employee's work, the employer, supervisors, or co-workers or postings critical of the employer's product or service can be grounds for disciplinary action up to and including termination. For example, a teacher who was fired for an inappropriate MySpace page sued the employer and lost in Spanierman v. Hughes, 576 F. Supp. 2d 292 (D. Conn. 2008). Even when the conduct does not rise to the level of disciplinary action, it can cause the employer to question the employee's maturity or judgment.
Post-employment
Former employees who left on their own or maintain a positive relationship with their former employer, supervisor and co-workers rarely raise concerns about the potential for harm to the employer through their online activities. However, the disgruntled former employee is a different story. Just as they are not concerned about the bridges they burn, these employees are not worried about the potential consequences of the statements they publish online or their tweets about their former employer, supervisor and even co-workers. The potential for a defamation claim against the former employee can be great. Alas, the opportunity to collect damages is not great.
Some employers have a real concern that confidential information will be released by disgruntled former employees. Requiring employees with access to confidential information, as a condition of employment, to sign a confidentiality and nondisclosure agreement which remains in effect following the termination of the employment relationship is one way to address this potential problem.
Social media non-compete
Employers who sanction employee blogs, Facebook groups, Twitter accounts, and other means of communicating through social media often do not think through the consequences of setting up these accounts with one employee as the face of the company.
What happens when the employee who has been regularly posting blogs on behalf of the company decides to leave? Who owns the profile? Who owns the content? More importantly, who owns the followers? Even if the now former employee does not object to the employer taking over his blog, what if the employer does not have the login name and password?
To address these issues, savvy employers are having their employees sign social media non-competition agreements. Under these social media non-competes, the profile, content and followers of a blog or other communication tool belong to the employer. These agreements are more akin to a non-solicitation agreement than a traditional non-compete.
They are difficult (if not impossible) to enforce but they clearly define the intent of the parties if the employer sees litigation (or alternative dispute resolution) as a necessary step to protect its brand or marketing position.
Conclusion
The now widespread use of social media in and outside of the workplace is not the end of the world as we know it. True, the situations employers can face are different, and small problems can very quickly magnify and multiply. But the sensible employer will respond appropriately, working with its employees to identify appropriate social media usage policies and exploiting the communication benefits that social media can bring to the workplace of the 21st century.
Eileen Morgan Johnson
Counsel
Whiteford, Taylor & Preston, L.L.P.
3190 Fairview Park Drive, Suite 300 Falls Church, VA 22042
t: 703-280-9271 f: 703-280-8947 m: 202-615-0894
emjohnson@wtplaw.com Bio vCard http://www.wtplaw.com/
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N.B. A relevant item, NY Ethics Committees Tackle Social Media Mining has been posted on Nicole Black's Law Blog Sui Generis--a New York law blog . It addresses the issue of the ethics of attorneys using social media and cites the New York City Bar’s opinion (Formal Opinion 2010-2) Ms. Black can be reached at nblack@nicoleblackesq.com .
NYPPL
October 07, 2010
As New York arbitration law is in accord with the policies of the Federal Arbitration Act, New York law governs federal court review of New York award
As New York arbitration law is in accord with the policies of the Federal Arbitration Act, New York law governs federal court review of New York award
County of Nassau v Chase, United States Court of Appeals, Second Circuit, No. 09-3643-cv, Summary Order
Chase and other parties appealed a federal district court's granting Nassau County’s motion to confirm an arbitration award.
As the contract between the parties provided that “any appeal from an arbitration award is to be governed exclusively by New York state law,” the Circuit Court said that this provision “must be honored by the courts unless the state law conflicts with federal law.”
As, said the court, “New York law accords with the policies of the [Federal Arbitration Act] (in favor of binding arbitration), federal law does not preempt New York state law here. New York state law therefore governs our review of this arbitration award.*
The Circuit Court then set out the following basics with respect to New York State Law concerning arbitration:
1. The appropriate standard is whether the arbitration award "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power," citing N.Y.C. Transit Auth. v. Transp. Workers' Union of Am., Local 100, AFL-CIO, 6 N.Y.3d 332. [Zorc and Chase, said the court, fail to satisfy this standard.]
2. “Arbitrators are not bound by principles of substantive law or legal procedure: An arbitrator "may do justice as he sees it, applying his own sense of law and equity to the facts as he finds them to be and making an award reflecting the spirit rather than the letter of the agreement," citing Silverman v. Benmor Coats, Inc., 61 N.Y.2d 299
3. Misapplication of law and errors of fact are insufficient to overturn an award. Motor Vehicle Accident Indemnification Corp. v. Aetna Cas. & Surety Co., 89 N.Y.2d 214.
In this instance the Circuit Court said that the arbitration award did not violate any "strong public policy" of New York or federal law nor did the arbitration clause in question did not set out any limitations on the arbitrators' power, and Zorc and Chase never argue to the contrary.
Absent any limitations set out in the arbitration clause, the Circuit Court concluded that the arbitrators cannot have "clearly exceed[ed] a specifically enumerated limitation" on their power.”
Finally, the Circuit Court said that under New York state law, a sufficient showing of partiality can justify overturning an arbitration award, citing CPLR §7511(b) (ii). However, the decision notes that although Zorc and Chase make this assertion, they did not provide any evidence of any actual partiality by any arbitrator. Rather Zorc and Chase claim that because the arbitrators made factual findings adverse to them, the arbitrators must have been harboring secret bias against them. This assertion begs the question of partiality.
The Circuit Court confirmed the district court's grant of Nassau's motion to confirm the arbitration award and denied Zorc and Chase petition to vacate the award.
* The Circuit Court, agreeing with the District Court that the arbitral award must be confirmed, did so “pursuant [the CPLR] §7510, and not the Federal Arbitration Act, 9 U.S.C. § 9, as the District Court did.”
The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/ab1178bc-bd21-46c7-8188-adf226ceac52/8/doc/09-3643_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ab1178bc-bd21-46c7-8188-adf226ceac52/8/hilite/
NYPPL
County of Nassau v Chase, United States Court of Appeals, Second Circuit, No. 09-3643-cv, Summary Order
Chase and other parties appealed a federal district court's granting Nassau County’s motion to confirm an arbitration award.
As the contract between the parties provided that “any appeal from an arbitration award is to be governed exclusively by New York state law,” the Circuit Court said that this provision “must be honored by the courts unless the state law conflicts with federal law.”
As, said the court, “New York law accords with the policies of the [Federal Arbitration Act] (in favor of binding arbitration), federal law does not preempt New York state law here. New York state law therefore governs our review of this arbitration award.*
The Circuit Court then set out the following basics with respect to New York State Law concerning arbitration:
1. The appropriate standard is whether the arbitration award "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power," citing N.Y.C. Transit Auth. v. Transp. Workers' Union of Am., Local 100, AFL-CIO, 6 N.Y.3d 332. [Zorc and Chase, said the court, fail to satisfy this standard.]
2. “Arbitrators are not bound by principles of substantive law or legal procedure: An arbitrator "may do justice as he sees it, applying his own sense of law and equity to the facts as he finds them to be and making an award reflecting the spirit rather than the letter of the agreement," citing Silverman v. Benmor Coats, Inc., 61 N.Y.2d 299
3. Misapplication of law and errors of fact are insufficient to overturn an award. Motor Vehicle Accident Indemnification Corp. v. Aetna Cas. & Surety Co., 89 N.Y.2d 214.
In this instance the Circuit Court said that the arbitration award did not violate any "strong public policy" of New York or federal law nor did the arbitration clause in question did not set out any limitations on the arbitrators' power, and Zorc and Chase never argue to the contrary.
Absent any limitations set out in the arbitration clause, the Circuit Court concluded that the arbitrators cannot have "clearly exceed[ed] a specifically enumerated limitation" on their power.”
Finally, the Circuit Court said that under New York state law, a sufficient showing of partiality can justify overturning an arbitration award, citing CPLR §7511(b) (ii). However, the decision notes that although Zorc and Chase make this assertion, they did not provide any evidence of any actual partiality by any arbitrator. Rather Zorc and Chase claim that because the arbitrators made factual findings adverse to them, the arbitrators must have been harboring secret bias against them. This assertion begs the question of partiality.
The Circuit Court confirmed the district court's grant of Nassau's motion to confirm the arbitration award and denied Zorc and Chase petition to vacate the award.
* The Circuit Court, agreeing with the District Court that the arbitral award must be confirmed, did so “pursuant [the CPLR] §7510, and not the Federal Arbitration Act, 9 U.S.C. § 9, as the District Court did.”
The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/ab1178bc-bd21-46c7-8188-adf226ceac52/8/doc/09-3643_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ab1178bc-bd21-46c7-8188-adf226ceac52/8/hilite/
NYPPL
Civil Service Law Section 72 leave
Civil Service Law Section 72 leave
Lara v City of New York, 1999 WL 459803.
It is not unusual for an employee placed on disability leave pursuant to Section 72 of the Civil Service Law to allege that his or her employer’s action in placing the individual on such leave constituted unlawful discrimination because of a disability. In the Lara case, national origin discrimination was claimed to have motivated placing the employee on “an involuntary medical leave” that eventually resulted in Lara’s being placed on Section 72 leave.
Pablo Lara, who was born in the Dominican Republic, was employed as a Program Officer by the New York City Department for the Aging (DFTA). His duties included monitoring contracts between DFTA and community-based organizations.
The New York Foundation for Senior Citizens, for instance, wrote a letter complaining that Lara “continuously” compared the Foundation administration to “‘militant dictatorships in many African countries.’” Throughout a meeting, it was alleged, Lara’s voice was raised and “he seemed agitated.” He repeatedly mimicked Foundation staff at the meeting.
The department decided to place Lara on an involuntary medical leave of absence effective March 21, 1997. Lara was also instructed to report to Dr. Azariah Eshkenazi for a psychiatric examination. According to the decision, Dr. Eshkenazi diagnosed Lara as having a “personality disorder, paranoid type” and “generalized anxiety.”
Lara was also examined by a psychiatrist of his own choosing, Dr. Pedro Rodriguez. Dr. Rodriguez said he found no evidence of “serious psychiatric conditions, including psychosis and personality disorder that could have prevented [Lara] from doing his work.”
Administrative Law Judge [ALJ] Ray Fleischhacker was designated to hold a Section 72 hearing. The ALJ decided to adjourn the hearing so that Lara could be examined by a third psychiatrist, Dr. Myron Gordon. Dr. Gordon diagnosed Lara as having “paranoid personality disorder.”
On December 3, 1997, the ALJ issued a “Report and Recommendation” in which he concluded that Lara was “mentally unfit to perform the duties of his position.” He recommended that Lara be placed on Section 72 leave.
The Department placed Lara on Section 72 leave effective December 15, 1997. While on such leave, Lara was re-evaluated by Dr. Eshkenazi, who determined that “Lara’s mental condition had not improved and that Lara remained unfit to return to work.” The department terminated Lara’s employment effective December 15, 1998. Section 73 of the Civil Service Law authorizes the termination of an individual who has been continuously absent on Section 72 leave for at least one year.
Meanwhile, Lara filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on April 16, 1997, contending that the department’s decision to place him on involuntary medical leave constituted national origin discrimination. EEOC issued Lara a “right to sue letter” and Lara initiated litigation in federal district court.
A federal district court judge dismissed Lara’s petition, agreeing with the department that Lara had failed to perform his duties satisfactorily and, consequently, he failed to satisfy one of the critical elements required to establish a prima facie case of unlawful discrimination -- the individual’s ability to satisfactory perform the duties of the position.
Judge Cote said that the city had submitted “uncontroverted evidence” of Lara’s inappropriate behavior at staff meetings and that there was unrebutted evidence that “DFTA contractors complained repeatedly about Lara’s unprofessional behavior and requested that Lara be replaced by another program officer.” Accordingly, said the court, “Lara fails to raise an issue of fact that he was performing his job satisfactorily and [thus] fails to establish a prima facie case.”
The decision also notes an important procedural element. Lara had named the City, Shaffer, and DFTA as defendants. Judge Cote said that “[t]here is no individual liability under Title VII and the Title VII claims against Shaffer must be dismissed.” In addition, the court ruled that the Title VII claims against DFTA also had to be dismissed because under Chapter 17, Section 396 of the New York City Charter all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York, and not that of any agency, except where otherwise provided by law.
.
Lara v City of New York, 1999 WL 459803.
It is not unusual for an employee placed on disability leave pursuant to Section 72 of the Civil Service Law to allege that his or her employer’s action in placing the individual on such leave constituted unlawful discrimination because of a disability. In the Lara case, national origin discrimination was claimed to have motivated placing the employee on “an involuntary medical leave” that eventually resulted in Lara’s being placed on Section 72 leave.
Pablo Lara, who was born in the Dominican Republic, was employed as a Program Officer by the New York City Department for the Aging (DFTA). His duties included monitoring contracts between DFTA and community-based organizations.
The New York Foundation for Senior Citizens, for instance, wrote a letter complaining that Lara “continuously” compared the Foundation administration to “‘militant dictatorships in many African countries.’” Throughout a meeting, it was alleged, Lara’s voice was raised and “he seemed agitated.” He repeatedly mimicked Foundation staff at the meeting.
The department decided to place Lara on an involuntary medical leave of absence effective March 21, 1997. Lara was also instructed to report to Dr. Azariah Eshkenazi for a psychiatric examination. According to the decision, Dr. Eshkenazi diagnosed Lara as having a “personality disorder, paranoid type” and “generalized anxiety.”
Lara was also examined by a psychiatrist of his own choosing, Dr. Pedro Rodriguez. Dr. Rodriguez said he found no evidence of “serious psychiatric conditions, including psychosis and personality disorder that could have prevented [Lara] from doing his work.”
Administrative Law Judge [ALJ] Ray Fleischhacker was designated to hold a Section 72 hearing. The ALJ decided to adjourn the hearing so that Lara could be examined by a third psychiatrist, Dr. Myron Gordon. Dr. Gordon diagnosed Lara as having “paranoid personality disorder.”
On December 3, 1997, the ALJ issued a “Report and Recommendation” in which he concluded that Lara was “mentally unfit to perform the duties of his position.” He recommended that Lara be placed on Section 72 leave.
The Department placed Lara on Section 72 leave effective December 15, 1997. While on such leave, Lara was re-evaluated by Dr. Eshkenazi, who determined that “Lara’s mental condition had not improved and that Lara remained unfit to return to work.” The department terminated Lara’s employment effective December 15, 1998. Section 73 of the Civil Service Law authorizes the termination of an individual who has been continuously absent on Section 72 leave for at least one year.
Meanwhile, Lara filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on April 16, 1997, contending that the department’s decision to place him on involuntary medical leave constituted national origin discrimination. EEOC issued Lara a “right to sue letter” and Lara initiated litigation in federal district court.
A federal district court judge dismissed Lara’s petition, agreeing with the department that Lara had failed to perform his duties satisfactorily and, consequently, he failed to satisfy one of the critical elements required to establish a prima facie case of unlawful discrimination -- the individual’s ability to satisfactory perform the duties of the position.
Judge Cote said that the city had submitted “uncontroverted evidence” of Lara’s inappropriate behavior at staff meetings and that there was unrebutted evidence that “DFTA contractors complained repeatedly about Lara’s unprofessional behavior and requested that Lara be replaced by another program officer.” Accordingly, said the court, “Lara fails to raise an issue of fact that he was performing his job satisfactorily and [thus] fails to establish a prima facie case.”
The decision also notes an important procedural element. Lara had named the City, Shaffer, and DFTA as defendants. Judge Cote said that “[t]here is no individual liability under Title VII and the Title VII claims against Shaffer must be dismissed.” In addition, the court ruled that the Title VII claims against DFTA also had to be dismissed because under Chapter 17, Section 396 of the New York City Charter all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York, and not that of any agency, except where otherwise provided by law.
.
Terms and conditions of the appointment
Terms and conditions of the appointment
Carney v Insetta, App. Div., 3rd Dept., 263 AD2d 743, motion for leave to appeal denied, 94 NY2d 753
How does one determine what an individual is entitled to as an employee?
In resolving the Carney case, the Appellate Division said: just look at what the individual was offered when he or she was appointed to the position.
Julie Carney was appointed to the position of Animal Control Officer by the City of Oneonta. Previously a “full time” position, Carney was appointed as a part-time employee on an hourly basis. Carney initially was to work at least 24 hours per week and was paid at an hourly rate -- $8 per hour. She was also provided with health insurance benefits. When her work schedule was reduced, Carney said that she was entitled to the “salaried position” and the fringe benefits described in Oneonta’s personnel manual.
Told that she was not entitled to such benefits because she was a part-time employee, Carney for “breach of contract.”
Eventually the issue came before the Appellate Division. The court commented that while “a significant portion” of the briefs submitted by the parties debated the meaning and significance of certain passages set out in the city’s personnel manual, the question of Carney’s entitlement to the benefits she sought was “readily resolved by looking to the terms of her appointment.”
The Appellate Division said that while the position of Animal Control Officer was a full-time, salaried position and, pursuant to the terms of the City’s personnel manual, the incumbent was entitled to certain additional benefits, such as sick leave and vacation time, the record clearly shows, and Carney concedes, she was hired on a part-time, hourly basis.
The court noted that notwithstanding any benefits that may have been available to previous appointees holding the full-time, salaried Animal Control Officer position, there was nothing in the record to indicate that such benefits ever were intended to apply to a part-time, hourly appointee such as Carney.
The fact that the Animal Control Officer title is a “covered position” in the personnel manual was deemed irrelevant, since Carney’s position and the position covered by the manual “is not one and the same.” Significantly, noted the Appellate Division, the benefits described in the personnel manual were not offered to Carney at the time of her appointment and thus could not have formed the basis for her acceptance of the position.
Unless certain rights and benefits are mandated and thus available to an individual as a matter of law or pursuant to a Taylor Law agreement, the employer may set the terms of the appointment, including compensation and entitlement to fringe benefits.
The individual, unless he or she is able to negotiate an alternative arrangement, may either accept or decline the appointment under the terms and conditions offered by the appointing authority.
.
Carney v Insetta, App. Div., 3rd Dept., 263 AD2d 743, motion for leave to appeal denied, 94 NY2d 753
How does one determine what an individual is entitled to as an employee?
In resolving the Carney case, the Appellate Division said: just look at what the individual was offered when he or she was appointed to the position.
Julie Carney was appointed to the position of Animal Control Officer by the City of Oneonta. Previously a “full time” position, Carney was appointed as a part-time employee on an hourly basis. Carney initially was to work at least 24 hours per week and was paid at an hourly rate -- $8 per hour. She was also provided with health insurance benefits. When her work schedule was reduced, Carney said that she was entitled to the “salaried position” and the fringe benefits described in Oneonta’s personnel manual.
Told that she was not entitled to such benefits because she was a part-time employee, Carney for “breach of contract.”
Eventually the issue came before the Appellate Division. The court commented that while “a significant portion” of the briefs submitted by the parties debated the meaning and significance of certain passages set out in the city’s personnel manual, the question of Carney’s entitlement to the benefits she sought was “readily resolved by looking to the terms of her appointment.”
The Appellate Division said that while the position of Animal Control Officer was a full-time, salaried position and, pursuant to the terms of the City’s personnel manual, the incumbent was entitled to certain additional benefits, such as sick leave and vacation time, the record clearly shows, and Carney concedes, she was hired on a part-time, hourly basis.
The court noted that notwithstanding any benefits that may have been available to previous appointees holding the full-time, salaried Animal Control Officer position, there was nothing in the record to indicate that such benefits ever were intended to apply to a part-time, hourly appointee such as Carney.
The fact that the Animal Control Officer title is a “covered position” in the personnel manual was deemed irrelevant, since Carney’s position and the position covered by the manual “is not one and the same.” Significantly, noted the Appellate Division, the benefits described in the personnel manual were not offered to Carney at the time of her appointment and thus could not have formed the basis for her acceptance of the position.
Unless certain rights and benefits are mandated and thus available to an individual as a matter of law or pursuant to a Taylor Law agreement, the employer may set the terms of the appointment, including compensation and entitlement to fringe benefits.
The individual, unless he or she is able to negotiate an alternative arrangement, may either accept or decline the appointment under the terms and conditions offered by the appointing authority.
.
Transferring unit work
Transferring unit work
CSEA Local 1000 and Local 836, 32 PERB 3015
The City of Newburgh abolished its positions of animal control officers, who were represented by CSEA. The city unilaterally transferred the duties of the positions to the nonunit police officers represented by Local 836.
CSEA objected and filed an improper practice charge with PERB contending that the city had violated the Taylor Law when it unilaterally transferred “non-emergency” duties previously exclusively performed by the animal control officers.
Ultimately PERB affirmed its Director of Public Employment Practices and Representation’s ruling that “the abolishment of the unit positions was a legislative act by the City Council that was not reviewable under Section 209-a.1(d) of the Act.” PERB said that the Director “correctly found that this was a legislative action involving a nonmandatory subject of negotiation and was not violative of ... the Act.”
.
CSEA Local 1000 and Local 836, 32 PERB 3015
The City of Newburgh abolished its positions of animal control officers, who were represented by CSEA. The city unilaterally transferred the duties of the positions to the nonunit police officers represented by Local 836.
CSEA objected and filed an improper practice charge with PERB contending that the city had violated the Taylor Law when it unilaterally transferred “non-emergency” duties previously exclusively performed by the animal control officers.
Ultimately PERB affirmed its Director of Public Employment Practices and Representation’s ruling that “the abolishment of the unit positions was a legislative act by the City Council that was not reviewable under Section 209-a.1(d) of the Act.” PERB said that the Director “correctly found that this was a legislative action involving a nonmandatory subject of negotiation and was not violative of ... the Act.”
.
PERB finds employer dismissed probationer because of union activity; orders employee to be given a second probationary period
PERB finds employer dismissed probationer because of union activity; orders employee to be given a second probationary period
CSEA Local 1000 and Westchester County, 32 PERB 3017
Westchester County terminated probationary employee Michael Holcomb.
CSEA objected, contending that Holcomb was discharged because of his participation in union-related “protected activities” in violation of the Taylor Law.
PERB’s administrative law judge [ALJ] ruled that Kenneth Grauer, Holcomb’s supervisor, wrote a negative evaluation that was “tainted by union animus” and that this contributed to Holcomb’s dismissal.
Westchester appealed, arguing that Holcomb’s separation “was motivated by only legitimate business reasons” and, further, Holcomb was not protected in his activities because “he was not a union representative and was not engaged in union-sanctioned activity.”
PERB agreed with the ALJ’s finding but said that the remedial order should be modified. “Grauer believed Holcomb to be a union activist and that belief contributed to his negative recommendation.” PERB said that action taken against a unit member based upon a belief can violate the Taylor Law, citing its ruling in Holbrook Fire Department, 30 PERB 3062.
PERB commented that “while it may be true that an employer is free to terminate a probationary employee for any cause or no cause at all, this principle plainly does not apply if the employee is terminated in violation of law.”
PERB directed Westchester to offer Holcomb a second probationary period under another supervisor. It also said that if Holcomb successfully completed this second probationary period, which should not be less than the minimum probationary period authorized, Westchester should compensate him for lost pay and benefits, “less any earnings or other compensation received by him” from the date of his probationary termination through the date of his reinstatement to his former title.
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CSEA Local 1000 and Westchester County, 32 PERB 3017
Westchester County terminated probationary employee Michael Holcomb.
CSEA objected, contending that Holcomb was discharged because of his participation in union-related “protected activities” in violation of the Taylor Law.
PERB’s administrative law judge [ALJ] ruled that Kenneth Grauer, Holcomb’s supervisor, wrote a negative evaluation that was “tainted by union animus” and that this contributed to Holcomb’s dismissal.
Westchester appealed, arguing that Holcomb’s separation “was motivated by only legitimate business reasons” and, further, Holcomb was not protected in his activities because “he was not a union representative and was not engaged in union-sanctioned activity.”
PERB agreed with the ALJ’s finding but said that the remedial order should be modified. “Grauer believed Holcomb to be a union activist and that belief contributed to his negative recommendation.” PERB said that action taken against a unit member based upon a belief can violate the Taylor Law, citing its ruling in Holbrook Fire Department, 30 PERB 3062.
PERB commented that “while it may be true that an employer is free to terminate a probationary employee for any cause or no cause at all, this principle plainly does not apply if the employee is terminated in violation of law.”
PERB directed Westchester to offer Holcomb a second probationary period under another supervisor. It also said that if Holcomb successfully completed this second probationary period, which should not be less than the minimum probationary period authorized, Westchester should compensate him for lost pay and benefits, “less any earnings or other compensation received by him” from the date of his probationary termination through the date of his reinstatement to his former title.
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Reverse discrimination
Reverse discrimination
Hayden v Nassau County, CA2, 180 F.3d 42
The Hayden decision sets out some of the major considerations that are relevant in attempting to demonstrate “reverse discrimination” in civil service examinations.
After an exam was administered to 25,000 police department applicants in Nassau County in 1994, experts evaluated the 25 test sections administered to determine if any had an adverse impact on minority test-takers as well as whether the test questions were sufficiently job-related. The county only counted nine of the 25 test sections in computing the exam score. William Hayden and 67 other white, Latino and female applicants to the Nassau County Police Department brought a lawsuit in federal district court alleging that “a police officers’ entrance exam designed to minimize the discriminatory impact on minority candidates necessarily discriminated against them.”
The Second Circuit U.S. Court of Appeals in New York affirmed a U.S. district judge’s dismissal of the action. It called the exam a “race-neutral entrance examination with the purpose of eliminating or reducing the differential effects suffered by minority candidates.” Although Nassau County was “conscious of race” in redesigning its entrance exam, “it treated all persons equally in the administration of the exam,” the court said. Everyone took the same test and all tests were scored in the same manner, and no differential cutoffs or race norming was used, the court said.
The Court of Appeals rejected all of the arguments presented by Hayden, holding that he had failed to allege facts that, if proven true, would entitle the class to relief. Reviewing each of Hayden’s theories justifying relief, the court said that:
1. Equal protection: To state a claim for an equal protection violation, appellants must allege that a government actor intentionally discriminated against them on the basis of race, national origin or gender. Here is undisputed that the exam was administered and scored in an identical fashion for all applicants. The exam was not scored differently on the basis of a candidate’s ethnicity or gender, nor were differential cut-off points used for applicants of different races or sexes. In contrast to affirmative action tools, such as quota systems, set-aside programs, and differential scoring cutoffs, which utilize express racial classifications and which prevent non-minorities from competing for specific slots or contracts, the Circuit Court said that Nassau’s efforts were not unlawful.
2. Facially neutral policy applied in discriminatory manner: Also rejected was Hayden’s arguments concerning facially neutral ordinance was discriminatorily applied.
3. Discriminatory intent and effect: Although Hayden claimed “an equal protection violation”, the court said it agreed with the district court’s conclusion that in order to prevail it must be alleged that Nassau County harbored a discriminatory intent against the class and that the entrance examination disproportionately impacted them. No such claims which would demonstrate either discriminatory intent or discriminatory impact were put forth.
The court’s conclusion: “Nassau County sought to design a police officers’ entrance examination which would reduce the discriminatory impact of its hiring practices on minority candidates. Although the decision to redesign the exam certainly took race into account, the exam was administered and scored in a wholly race-neutral fashion. We conclude that race-neutral efforts to address and rectify the racially disproportionate effects of an entrance examination do not discriminate against non-minorities.”
Accordingly, the Circuit Court ruled that “the 68 white and Latino appellants, male and female, in this case fail to state a claim under the Equal Protection Clause, Section 703 of Title VII, and Sections 106 and 107 of the Civil Rights Act of 1991.”
.
Hayden v Nassau County, CA2, 180 F.3d 42
The Hayden decision sets out some of the major considerations that are relevant in attempting to demonstrate “reverse discrimination” in civil service examinations.
After an exam was administered to 25,000 police department applicants in Nassau County in 1994, experts evaluated the 25 test sections administered to determine if any had an adverse impact on minority test-takers as well as whether the test questions were sufficiently job-related. The county only counted nine of the 25 test sections in computing the exam score. William Hayden and 67 other white, Latino and female applicants to the Nassau County Police Department brought a lawsuit in federal district court alleging that “a police officers’ entrance exam designed to minimize the discriminatory impact on minority candidates necessarily discriminated against them.”
The Second Circuit U.S. Court of Appeals in New York affirmed a U.S. district judge’s dismissal of the action. It called the exam a “race-neutral entrance examination with the purpose of eliminating or reducing the differential effects suffered by minority candidates.” Although Nassau County was “conscious of race” in redesigning its entrance exam, “it treated all persons equally in the administration of the exam,” the court said. Everyone took the same test and all tests were scored in the same manner, and no differential cutoffs or race norming was used, the court said.
The Court of Appeals rejected all of the arguments presented by Hayden, holding that he had failed to allege facts that, if proven true, would entitle the class to relief. Reviewing each of Hayden’s theories justifying relief, the court said that:
1. Equal protection: To state a claim for an equal protection violation, appellants must allege that a government actor intentionally discriminated against them on the basis of race, national origin or gender. Here is undisputed that the exam was administered and scored in an identical fashion for all applicants. The exam was not scored differently on the basis of a candidate’s ethnicity or gender, nor were differential cut-off points used for applicants of different races or sexes. In contrast to affirmative action tools, such as quota systems, set-aside programs, and differential scoring cutoffs, which utilize express racial classifications and which prevent non-minorities from competing for specific slots or contracts, the Circuit Court said that Nassau’s efforts were not unlawful.
2. Facially neutral policy applied in discriminatory manner: Also rejected was Hayden’s arguments concerning facially neutral ordinance was discriminatorily applied.
3. Discriminatory intent and effect: Although Hayden claimed “an equal protection violation”, the court said it agreed with the district court’s conclusion that in order to prevail it must be alleged that Nassau County harbored a discriminatory intent against the class and that the entrance examination disproportionately impacted them. No such claims which would demonstrate either discriminatory intent or discriminatory impact were put forth.
The court’s conclusion: “Nassau County sought to design a police officers’ entrance examination which would reduce the discriminatory impact of its hiring practices on minority candidates. Although the decision to redesign the exam certainly took race into account, the exam was administered and scored in a wholly race-neutral fashion. We conclude that race-neutral efforts to address and rectify the racially disproportionate effects of an entrance examination do not discriminate against non-minorities.”
Accordingly, the Circuit Court ruled that “the 68 white and Latino appellants, male and female, in this case fail to state a claim under the Equal Protection Clause, Section 703 of Title VII, and Sections 106 and 107 of the Civil Rights Act of 1991.”
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October 06, 2010
An interim award by an arbitrator does not constitute a "final determination” for the purposes of an Article 75 appeal challenging the award
An interim award by an arbitrator does not constitute a "final determination” for the purposes of an Article 75 appeal challenging the award
Matter of Geneva City School Dist. v Anonymous, 2010 NY Slip Op 06915, Decided on October 1, 2010, Appellate Division, Fourth Department
The Geneva City School District filed 16 disciplinary charges pursuant to Education Law §3020-a against a tenured teacher [Anonymous] employed by the district.
Anonymous asked for a hearing, and the parties selected, "by mutual agreement," an arbitrator to serve as the Hearing Officer pursuant to §3020-a[3][b][ii] of the Education Law. At the commencement of the hearing, Anonymous moved for summary judgment dismissing 11 of the 16 charges. The Hearing Officer made an "interim award" granting the motion. Before the hearing reconvened to consider the remaining 5 charges filed against Anonymous, Geneva filed an Article 75 action seeking to vacate the interim award, contending that it was irrational and violated an important public policy.
Supreme Court rejected Geneva’s arguments and denied the petition. The Appellate Division affirmed the Supreme Court’s ruling, explaining that “The interim award was not ‘a final and definite award’ resolving the matter submitted for arbitration” within the meaning of CPLR §7511[b][1][iii].
In the words of the Appellate Division, “Inasmuch as the interim award does not constitute a ‘final determination made at the conclusion of the arbitration proceedings’ there is no authority for judicial intervention at this juncture.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06915.htm
NYPPL
Matter of Geneva City School Dist. v Anonymous, 2010 NY Slip Op 06915, Decided on October 1, 2010, Appellate Division, Fourth Department
The Geneva City School District filed 16 disciplinary charges pursuant to Education Law §3020-a against a tenured teacher [Anonymous] employed by the district.
Anonymous asked for a hearing, and the parties selected, "by mutual agreement," an arbitrator to serve as the Hearing Officer pursuant to §3020-a[3][b][ii] of the Education Law. At the commencement of the hearing, Anonymous moved for summary judgment dismissing 11 of the 16 charges. The Hearing Officer made an "interim award" granting the motion. Before the hearing reconvened to consider the remaining 5 charges filed against Anonymous, Geneva filed an Article 75 action seeking to vacate the interim award, contending that it was irrational and violated an important public policy.
Supreme Court rejected Geneva’s arguments and denied the petition. The Appellate Division affirmed the Supreme Court’s ruling, explaining that “The interim award was not ‘a final and definite award’ resolving the matter submitted for arbitration” within the meaning of CPLR §7511[b][1][iii].
In the words of the Appellate Division, “Inasmuch as the interim award does not constitute a ‘final determination made at the conclusion of the arbitration proceedings’ there is no authority for judicial intervention at this juncture.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06915.htm
NYPPL
Termination for inability to produce proof of possession of a required license or certificate is not a dismissal in the nature of discipline
Termination for inability to produce proof of possession of a required license or certificate is not a dismissal in the nature of discipline
Matter of Cravatta v New York State Dept. of Transp., 2010 NY Slip Op 06952, decided on October 1, 2010, Appellate Division, Fourth Department
Michael J. Cravatta, a Highway Maintenance Worker with the NYS Department of Transportation, was required to possess a valid New York State Class B Commercial Drivers License [CDL] as a condition of his employment by the Department.
When Cravatta’s CDL was suspended, the Department terminated his employment without his being given a pre-termination hearing.
Cravatta sued and Supreme Court granted his petition seeking to annul the determination terminating him from his position. Transportation appealed the lower court’s ruling.
The Appellate Division, stating that “Supreme Court erred …,” reversed the lower court “on the law” and dismissed Cravatta’s petition in its entirety.
The court said that as Cravatta was “required to maintain” a CDL, he was properly terminated after his CDL was suspended because he lacked one of the credentials required for his position.
Further, said the court, “Cravatta's termination was not disciplinary in nature and thus was subject to neither the arbitration clause in the collective bargaining agreement nor the provisions of Civil Service Law §75,” citing Matter of New York State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275.
NYPPL Comment: Courts have viewed employees who lack licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. Indeed, it could be argued that the employer has no alternative, as it could be considered unlawful to permit an unlicensed individual to perform the duties for which a license is required.
Although the loss of a required drivers license if frequently the basis for an employee being summarily terminated, the loss of an attorney’s license to practice law or the expiration of a temporary permit to teach would also result such action.
All that appears to be necessary in such cases is for the appointing authority to make some reasonable inquiry to determine if the employee may lawfully perform the duties of the position and provide the individual a reasonable opportunity to produce a valid license or certificate.
Essentially, the courts have held that where an individual is required to hold a valid license in order to perform the duties of the position and the employee losses the required license or it expires, the individual cannot be allowed to perform the duties of the position.
This proposition was explored by the Appellate Division in Martin ex rel Lekkas, 86 AD2d 712.
Lekkas, an Assistant Clinical Physician had been permanently appointed to a position in the Office of Mental Retardation and Developmental Disabilities,. He was subsequently terminated from his position without notice or hearing because he did not obtain the required license to practice medicine in New York State issued by the Education Department (Education Law Section 8522).*
The Appellate Division affirmed a lower court ruling that Lekkas’ termination was unlawful.
The court explained that although it was lawful to summarily discharge an employee without notice and hearing if the worker is unable to produce his or her required license, this could be done only if the duties being performed required the possession of the license.
According to the record, Lekkas was performing administrative duties rather than “practicing medicine.” As he was not engaged in the practice of medicine, Lekkas was not “unqualified” with respect to performing his administrative duties without the license that would have been otherwise required had he been engaged in the practice of medicine.
* The issue arose after the Education Law was amended to require persons previously appointed as physicians to obtain a license to practice medicine. Lekkas had been appointed to the position Assistant Clinical Physician prior to the amendment but had not obtained a New York State license to practice medicine within the prescribed time period.
The Cravatta decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06952.htm
NYPPL
Matter of Cravatta v New York State Dept. of Transp., 2010 NY Slip Op 06952, decided on October 1, 2010, Appellate Division, Fourth Department
Michael J. Cravatta, a Highway Maintenance Worker with the NYS Department of Transportation, was required to possess a valid New York State Class B Commercial Drivers License [CDL] as a condition of his employment by the Department.
When Cravatta’s CDL was suspended, the Department terminated his employment without his being given a pre-termination hearing.
Cravatta sued and Supreme Court granted his petition seeking to annul the determination terminating him from his position. Transportation appealed the lower court’s ruling.
The Appellate Division, stating that “Supreme Court erred …,” reversed the lower court “on the law” and dismissed Cravatta’s petition in its entirety.
The court said that as Cravatta was “required to maintain” a CDL, he was properly terminated after his CDL was suspended because he lacked one of the credentials required for his position.
Further, said the court, “Cravatta's termination was not disciplinary in nature and thus was subject to neither the arbitration clause in the collective bargaining agreement nor the provisions of Civil Service Law §75,” citing Matter of New York State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275.
NYPPL Comment: Courts have viewed employees who lack licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. Indeed, it could be argued that the employer has no alternative, as it could be considered unlawful to permit an unlicensed individual to perform the duties for which a license is required.
Although the loss of a required drivers license if frequently the basis for an employee being summarily terminated, the loss of an attorney’s license to practice law or the expiration of a temporary permit to teach would also result such action.
All that appears to be necessary in such cases is for the appointing authority to make some reasonable inquiry to determine if the employee may lawfully perform the duties of the position and provide the individual a reasonable opportunity to produce a valid license or certificate.
Essentially, the courts have held that where an individual is required to hold a valid license in order to perform the duties of the position and the employee losses the required license or it expires, the individual cannot be allowed to perform the duties of the position.
This proposition was explored by the Appellate Division in Martin ex rel Lekkas, 86 AD2d 712.
Lekkas, an Assistant Clinical Physician had been permanently appointed to a position in the Office of Mental Retardation and Developmental Disabilities,. He was subsequently terminated from his position without notice or hearing because he did not obtain the required license to practice medicine in New York State issued by the Education Department (Education Law Section 8522).*
The Appellate Division affirmed a lower court ruling that Lekkas’ termination was unlawful.
The court explained that although it was lawful to summarily discharge an employee without notice and hearing if the worker is unable to produce his or her required license, this could be done only if the duties being performed required the possession of the license.
According to the record, Lekkas was performing administrative duties rather than “practicing medicine.” As he was not engaged in the practice of medicine, Lekkas was not “unqualified” with respect to performing his administrative duties without the license that would have been otherwise required had he been engaged in the practice of medicine.
* The issue arose after the Education Law was amended to require persons previously appointed as physicians to obtain a license to practice medicine. Lekkas had been appointed to the position Assistant Clinical Physician prior to the amendment but had not obtained a New York State license to practice medicine within the prescribed time period.
The Cravatta decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06952.htm
NYPPL
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