Payment for unused leave credits upon resignation or separation from employment

Payment for unused leave credits upon resignation or separation from employment
Gratto Ausable v Valley CSD. 271 AD2d 175

The Gratto case explores the obligation of the employer to pay an individual for his or her unused vacation credits upon his or her involuntary termination. The general rule set out by the Appellate Division, Third Department in dealing with claims for such payment: use it or lose it!

Ausable Valley CSD Superintendent John Gratto’s employment contract with the school district provided that Gratto was to receive 25 paid vacation days a year, subject to a maximum accumulation of 45 days of vacation credit. The contract, however, was silent with respect to making a cash payment for any unused vacation time upon the termination of Gratto’s employment.

When Gratto was involuntarily terminated from his position he claimed that he was entitled to payment for his unused vacation credits upon his separation as he had earned it. The district disagreed and refused to pay him for his unused leave credits.

The absence of a statement providing for the cash liquidation of leave credits proved to be one of a number of critical elements in the Appellate Division’s resolution of his appeal from a Supreme Court judge’s summarily dismissing his complaint.

The Appellate Division said that “[i]n the absence of a statutory or contractual basis for recovery, a public employee may not recover the monetary value of unused vacation time that has accrued as of the date of termination.”

Gratto attempted to avoid this general rule by contending that a public employee who is involuntarily terminated, is constitutionally entitled to receive the cash value of unused vacation days, citing a Fourth Department decision, Clift v City of Syracuse, 45 AD2d 596 in support of his theory.

In Clift, the Appellate Division, Fourth Department. said that if the employer discharges an employee without having either given him the opportunity to use the vacation he has earned, or in the alternative, compensating him with its monetary value, it transgresses the due process requirements of both the New York State and United States Constitutions and it should not be permitted to do so.

The Third Department, however, decided that Clift has never been interpreted as meaning that a public employee who is involuntarily discharged is automatically entitled to a cash payment for his or her unused vacation. Rather, it viewed the holding as applying only where there are circumstances requiring special considerations.*

The Appellate Division rejected Gratto’s claim that his work responsibilities prevented him from using all of his leave credits for vacations. What was missing in Gratto’s situation? Evidence that a superior or supervisor induced him to forego any vacation time during that year for any reason or that he refrained from using vacation time the entire year because of noncontractual duties.

The Appellate Division affirmed the lower court’s ruling, holding that under the circumstances, Gratto was not entitled to the cash value of his 45 days of unused vacation when he was involuntarily separated.

This is similar to the general rule with respect to State workers subject to the State Civil Service Commission’s Attendance Rules for the Classified Service, 4 NYCRR 30.1. Section 30.1 states that an employee who is removed from State service as a result of disciplinary action, or who resigns after charges of incompetency or misconduct have been served, is not entitled to compensation for vacation credits.

What about a voluntary separation, i.e., the State employee is not involved in a disciplinary action when he or she resigns or retires? Section 30.1 provides that an appointing authority may require, as a condition for such payment that it be given at least two weeks notice prior to the last day of work.

* The special circumstances in Clift: the employee contended that he agreed to defer using his vacation credits based on promises made by his superior and was then involuntarily dismissed. Similarly in May v Ballston Spa CSD, 170 AD2D 920, the Third Department ruled in favor of the employee upon its finding that the employee was induced to forego vacation when his superiors assured him that he would be paid for his unused leave notwithstanding his involuntary separation as a result of a layoff.

Qualifying for reinstatement

Qualifying for reinstatement
Levy v Freeport UFSD, 275 A.D.2d 459, Motion for leave to appeal denied, 95 N.Y.2d 769

Carol L. Levy asked the Freeport Union Free School District to reinstate her to the position of Coordinator of English Language Arts/Reading.

Levy contended that she was qualified for reinstatement to the position because she was certified in reading. Conceding that Levy was certified in reading, the district declined to reinstate her to as the Coordinator because she was not certified in English.

Levy sued, seeking a court order compelling the district to reinstate her to the position.

The Appellate Division set out the general rule for reinstatement as follows:

Although a teacher seeking reinstatement need not be tenured in the area of the vacant position, the vacant position must be similar to the teacher’s former position and the teacher must be legally qualified to teach in the position sought.

Here, said the court, the record is clear: Levy is certified to teach reading, but not to teach English.



Under the circumstances, the court concluded, Levy did not have the appropriate certification for the position of English Language Arts/Reading Coordinator and dismissed her appeal.

Political activities by State officers and employees
NYS Ethics Commission

Periodically the New York State Ethics Commission reminds State workers of the State’s policy regarding political activities. Typically the Commission notes that:

1. State personnel may only engage in campaign activities on their own time;

2. State resources, including telephones, office supplies, photocopying and FAX machines and secretarial support may not be used for campaign purposes.

3. State personnel may not use their official position to solicit funds or coerce or influence co-workers for political purposes.

4. Campaign materials may not indicate or imply any State support or opposition to the candidate except that a candidate may refer to his or her State position in a campaign biography.

Section 107 of the Civil Service Law sets out a number of prohibitions against certain political activities by employees of the State and its political subdivision.

In addition, the political activities of State employees whose employment is Federally financed, in whole or in part, may be further restricted by the federal Hatch Act [53 Stat. 1147].

Essentially, the Hatch Act bars State and local officers and employees from being candidates for public office in a partisan election, using official authority or influence to interfere with or affect the results of an election or nomination directly or indirectly coerce contributions from subordinates in support of a political party or candidate.

Although a public officer or employee may lawfully seek the nomination for such public office, he or she must resign from his or her public employment upon accepting the nomination.

Employee conduct must be “in furtherance of the employee’s business” for it to be held liable for the employee’s negligent acts as Respondeat Superior

Employee conduct must be “in furtherance of the employee’s business” for it to be held liable for the employee’s negligent acts as Respondeat Superior
Perez v City of New York, 2010 NY Slip Op 09237, Decided on December 14, 2010, Appellate Division, Second Department

New York City police officer Javier Colon accidentally discharged his weapon in the course of unloading it while off-duty and engaged in "personal business," mortally wounding George Perez.

The City of New York and Colon were named as respondents in the lawsuit filed by Kristin Perez on behalf of Perez's estate seeking to recover damages for wrongful death.

Supreme Court granted the City’s motion to dismiss it from the action and denied Perez’s motion for summary judgment against the City on the issue of whether the Colon was acting within the scope of his employment at the time of the accident.

The Appellate Division affirmed the lower court’s ruling.

Pointing out that under the doctrine of respondeat superior, an employer is vicariously liable for an employee's tortious acts when those acts "were committed in furtherance of the employer's business and within the scope of employment," here, said the court, Colon's actions were undertaken “for wholly personal reasons” that were not job related. Accordingly, Colon’s conduct that resulted in the accident “cannot be said to fall within the scope of employment"

Finding that City met its prima facie burden of demonstrating that Colon was not acting within the scope of his employment as a police officer when he unloaded his service weapon and it accidentally discharged, the Appellate Division concluded that Colon’s actions were wholly personal in nature as “he was off duty, engaged in a social activity at his friend's apartment, where he planned to consume alcohol and, concerned about his comfort and the fact that he would consume alcohol, determined that unloading his firearm would be the best method to secure the weapon.”

As Perez failed to demonstrate the existence of a triable issue of fact as to whether Colon was acting within the scope of his employment at the time of the shooting, the Appellate Division decided that Supreme Court properly granted the City's motion for summary judgment dismissing the complaint insofar as asserted against it.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09237.htm

Random searches at work

Random searches at work
Morris v NY-NJ Port Authority, 290 AD2d 22

Robert Morris and the Port Authority Police Benevolent Association [PBA] sued the Port Authority in an effort to obtain a judicial declaration that random searches of the Port Authority police officers’ lockers were (1) unconstitutional and (2) a breach of a Memorandum of Agreement [MOA] between the PBA and the Authority.

The lockers in question are owned by the Authority and were being used by Authority police officers. A search on October 13, 1999 found radios belong to the Authority in the lockers of two officers in violation of its directive to pass the radios on to their shift replacements. The officers were disciplined for violating the directive.

The court dismissed the complaint citing the Appellate Division’s ruling in Moore v Constantine, 191 AD2d 769. Moore challenged his termination as a result of the search of his personal locker and “the seizure of evidence ... which was admitted in evidence” at a disciplinary hearing. The court said that the seizure of evidence from Moore’s locker did not violate his rights under the 4th Amendment.

According to the decision, in order to be entitled to assert a violation of the 4th Amendment, the individual must establish that he or she possessed a reasonable expectation of privacy as to the searched premises.

The right to privacy in the workplace asserted Moore’s situation, said the court, must bend to the superior governmental-societal interest of efficiency in the State Police. All public employees, especially police officers, have a diminished expectation of privacy in the work place.

As the U.S. Supreme Court said in O’Connor v Ortega, 480 US 709, when a public employer conducts such a search, the court must balance the invasion of the employees’ legitimate expectations of privacy against the government’s need for supervision, control, and the efficient operation of the workplace.

The court’s conclusion: “In light of the foregoing, the searches in question, whether they were consensual or not, did not violate plaintiffs’ constitutional rights, and therefore plaintiffs’ claim that they have a likelihood of success on this issue is unpersuasive.”

As to the PBA’s claim that the Authority violated provisions of the MOA, the court ruled that the question was for the arbitrator to determine, as it appears that this dispute is governed by the collective bargaining agreement.

Requests for union leave

Requests for union leave
Matter of the Erie County Sheriff’s Police Benevolent Association, 33 PERB 4570

Provisions for union leave are included in many Taylor Law agreements.

Here the collective bargaining agreement between the Erie County Sheriff’s Police Benevolent Association [SPBA] and the Erie County Sheriff’s Department [department] included a provision allowing specified SPBA members to be absent on union leave. The contract also set out the total number of union leave days available and the procedure to be followed in requesting approval for such leave.

SPBA filed an improper practice charge with PERB in which it alleged that the department had violated Civil Service Law Sections 209-a.1(b) [prohibiting employer attempts to dominate or interfere with the ... administration of any employee organization] and 209-a.1(d) [barring employers from refusing to negotiate in good faith] when it unilaterally decided to require unit members to include an explanation for their absence when requesting union leave.

SPBA also claimed that if the department disapproved of the explanation given by the member, it withheld its approval of the request for the leave. According to SPBA, this was a contract violation in as much as the agreement also provided that requests for union leave shall not be unreasonably withheld.

PERB’s administrative law judge Monte Klein dismissed the charge. Klein said that PERB did not have any jurisdiction to consider such a complaint in view of the fact that the union leave provision was a contract benefit.

Where, said Klein, a right or benefit emanates from the collective bargaining agreement, and the agreement provides a reasonably arguable source of right with respect to the subject matter, a charge alleging improper unilateral action with respect to such a right or benefit is beyond PERB’s jurisdiction. Kline decided that there appeared to be an alternative procedure available to SPBA to resolve its complaint under the terms of the collective bargaining agreement.

In other words, SPBA’s allegations might constitute a breach of the collective bargaining agreement.

Although Klein did not suggest that any specific procedure available to the SPBA to challenge the department’s action, his language suggests that the SPBA could file a contract grievance concerning its allegations. Thus, if SPBA’s allegations constitute a grievance under the collective bargaining agreement, it might allow it to ultimately demand arbitration as to whether the department violated the agreement by:

1. Requiring explanations in connection with requests for union leave; or

2. Unreasonably withholding its approval of requests for union leave by eligible SPBA unit members.

In a similar type of situation, Matter of Suffolk Detectives Association, 33 PERB 4573, the Association initially filed an improper practice charge with PERB alleging that Suffolk County had violated Civil Service Law Sections 209-a.1(a) [the employer has interfered with, coerced or restrained public employees from exercising their rights under the Taylor Law] and 209-a.1(e) [employer to continue all of the terms of an expired collective bargaining agreement until a new agreement is negotiated].

The basis for the Association’s charge: Suffolk issued a memorandum changing the terms under which unit members would receive payment when recalled to duty. PERB administrative law judge Philip L. Maier conditionally dismissed the charge after the parties advised him that they had submitted the matter to binding arbitration.

Retirement benefits and divorce

Retirement benefits and divorce
Smith v NYS Police and Firefighter Retirement System, 275 AD2d 536

A divorce settlement frequently will have an impact on the distribution of retirement benefits. Typically courts have the final word on how such benefits are to be distributed under the terms of the settlement. As the Smith case demonstrates, sometimes the Comptroller will have the authority to make that determination rather than the courts.

The Qualified Domestic Relations Order [QDRO] issued when Sophie and Nicolas Smith divorced provided that the retirement benefits accrued by Nicolas Smith as a member of the New York State and Local Retirement Systems during the marriage were marital property.

Nicholas Smith later remarried and named his new spouse as his primary beneficiary for pre-retirement death benefits. Smith died in 1997. As he had not yet retired, Sophie Smith applied for the pre-retirement death benefit. The Retirement System told her that under its interpretation of the QDRO only 33.2% of the benefit was payable to her.

The Appellate Division dismissed Sophie’s challenge to this determination, pointing out that [o]nce the Comptroller determined that the Retirement System was obligated to comply with the terms of the QDRO, the only remaining issue involved the interpretation of those terms.

Ordinarily the interpretation of the terms of a court order such as a QDRO would be for the court rather than the Comptroller to resolve. Not only that, the Smith’s QDRO expressly provided that the Supreme Court had continuing jurisdiction to implement and supervise the payment of retirement benefits upon the parties’ application.

Here, however, Appellate Division decided that the courts no longer had jurisdiction to decide the issue. Why did the courts lose jurisdiction? Because, said the Appellate Division, the parties did not seek the court’s assistance in resolving the question, but elected to submit the issue to the Comptroller as part of Sophie Smith’s application for the death benefit.

Under such circumstances, said the Appellate Division, the Comptroller has the authority to resolve disputes over the interpretation of the terms of the QDRO and his determination is binding and must be upheld if it is found rational and supported by substantial evidence.

Extension of the probationary period

Extension of the probationary periodMaras v Schenectady CSD, 275 AD2d 551

The Schenectady City School District told probationary school psychologist Roberta J. Maras, that she was not to be granted tenure and terminated her employment effective November 15, 1998. Maras sued, seeking a court order annulling her termination on the theory that she had acquired tenure by estoppel.

Maras was serving a three-year probationary period due to end on September 1, 1998. The district, however, had unilaterally extended Maras’ probationary period through November 16, 1998 because, it said, she had been absent for 11 days in excess of her contractually allotted sick days during her three-year probationary period. On October 16, 1998 the district wrote Maras advising her that she would not be recommended for tenure and, consequently, her employment would terminate on November 15, 1998.

Did Maras attain tenure by estoppel? The Appellate Division said she had, ruling that the district improperly extended Maras’ probationary period beyond September 12, 1998. According to the court, Schenectady could lawfully have extended Maras’ probationary term for the period of time [Maras] was absent from school in excess of her contractually allotted sick days – i.e., an “11-day extension”.

Although Schenectady had the authority to exclude from the computation of Maras’ three-year probationary period any noncontractual absences, it did not have any authority to exclude Maras’ absences provided for by contract. According to the ruling, the district excluded Maras’ 20 days of sick leave, five days of personal time and five days of medical leave that fell on school-wide vacation days.

The Appellate Division, in support of its ruling, cited England v Commissioner of Education, 169 AD2d 868.

The court also observed that Section 2509.7 of the Education Law expressly prohibits extension of an employee’s probationary period by adding thereto contractually bargained for sick or personal leave days or school-wide vacation days.

Section 2509.7 provides that ... no period in any school year for which there is no required service and/or for which no compensation is provided shall in any event constitute a break or suspension of probationary period or continuity of tenure rights.

The court’s conclusion: Maras attained tenure by estoppel because (1) the district failed to take action to grant or deny petitioner tenure prior to September 12, 1998; and (2) the record indicated that the district was aware of Maras’ continuing service in its employ beyond September 12, 1998.

Maras was an employee in the Unclassified Service [see Civil Service Law Section 35]. The general rule is different with respect to extensions of the probationary period for employees in the Classified Service [see Civil Service Law Section 40]. In the event a probationary employee in the Classified Service is absent during his or her probationary period, typically that employee’s probationary period is automatically extended for a period equal to the time the probationer was absent [see Matter of Mazur, 98 AD2d 974].

For example, 4 NYCRR 4.5(f), a Rule adopted by the State Civil Service Commission pursuant to the authority set out in Civil Service Law Section 63.2, provides that “the minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his [or her] absence which ... are not counted as time served in the probationary term.”

Some jurisdictions allow the appointing authority to waive some of time a probationer was absent during his or her probationary period, thereby reducing the time the individual actually serves in the probationary period.

The New York State Civil Service Commission's Rules for the Classified Service, for example, provide that "any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary period ... may, in the discretion of the appointing authority, be considered as time served in the probationary term."

Such extensions of the probationary period may be applicable in other situations as well.

For example, in the event an employee injured on the job is given a "light duty assignment," the courts have held that the appointing authority was not required to count the worker's "light duty service" for probationary purposes [Boyle v Koch, 114 AD2 78, leave to appeal denied 68 NY2d 601]. In such cases the employee may not claim to have performed the duties of the position to which he or she has been appointed as a probationer on the basis of their satisfactory performance of "light duty."
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Arbitrator’s refusal to hear employee’s “whistle blower” defense in the course of disciplinary hearing requires the vacating of the award

Arbitrator’s refusal to hear employee’s “whistle blower” defense in the course of disciplinary hearing requires the vacating of the award
Matter of Kowaleski v New York State Dept. of Correctional Servs., 2010 NY Slip Op 09379, Decided on December 21, 2010, Court of Appeals

Barbara Kowaleski, a correction officer employed by the New York State Department of Corrections, was served with disciplinary charges alleging that she violated provisions of the employees' manual on three separate occasions when she "made inappropriate comments of a personal nature about another staff member in the presence of staff and inmates"; argued with a fellow employee; and was "disrespectful and insubordinate" when she ignored a superior's order.
The proposed penalty: termination and the loss of any accrued leave.

Ultimately the matter was submitted to a disciplinary arbitration.

At the outset of the hearing, Kowaleski argued that the disciplinary action was only being brought to retaliate against her for reporting a fellow officer's misconduct and that she was entitled to raise this as an affirmative defense pursuant to Civil Service Law §75-b, contending that §75-b prohibits public employers from retaliating against employees for reporting their coworkers' improper conduct.

The arbitrator determined that because the Collective Bargaining Agreement [CBA] limited his authority "to determinations of guilt or innocence and the appropriateness of proposed penalties," he lacked authority to consider Kowaleski's retaliation defense. The arbitrator, however, indicated that he would consider evidence of retaliation when determining witness credibility and "in the larger context of guilt or innocence."

The arbitrator found Kowaleski guilty of two of the three charges and determined that termination was appropriate and Kowaleski filed a petition pursuant to Article 75 of the CPLR seeking to have the award vacated.

Although Supreme Court and the Appellate Division rejected Kowaleski’s appeal, the Court of Appeals reversed the lower courts’ rulings “[b]ecause we find that the arbitrator's failure to separately consider and determine Kowaleski's affirmative defense of retaliation on the merits requires the award to be vacated”

The Court of Appeals explained that an arbitration award must be vacated if, as relevant here, a party's rights were impaired by an arbitrator who "exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made (see CPLR 7511 [b] [1] [iii]). Further, said the court, an arbitrator "exceed[s] his power" under the meaning of the statute where his "award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

As the lower courts found, and Correction conceded, the arbitrator “not only had authority to consider Kowaleski's retaliation defense, but was required to do so.”

Further, the opinion indicates that Civil Service Law §75-b prohibits a public employer from taking disciplinary action to retaliate against an employee for reporting "improper governmental action" and in the event the employee reasonably believes disciplinary action would not have been taken “but for" the whistle blowing, the employee may assert such as a defense before the designated arbitrator or hearing officer." *

Whatever the terms of the CBA, the Court of Appeals said that "[t]he merits of such defense shall be considered and determined as part of the arbitration award or hearing officer decision." Further, should the arbitrator or hearing officer find that the disciplinary action is based “solely on the employer's desire to retaliate,” the disciplinary proceeding must be dismissed.

Accordingly, the arbitrator's finding that he did not have authority under the CBA to consider Kowaleski's retaliation defense was not only incorrect as a matter of law, but also in excess of an explicit limitation on his power. Because he failed to consider and determine the defense, the court ruled that the award must be vacated.

Finally, the Court of Appeals noted the Kowaleski has requested that any rehearing be before a different arbitrator. That request, said the court, should be ruled on by Supreme Court in the exercise of its discretion.

* Addendum to original posting: A number of e-mails concerning this ruling have been received since the summary of the decision was posted on December 22, 201. Set out below are the relevant provisions of Section 75-b of the Civil Service Law addressing the basic issue before the Court of Appeals:

3. (a) Where an employee is subject to dismissal or other disciplinary action under a final and binding arbitration provision, or other disciplinary procedure contained in a collectively negotiated agreement, or under section seventy-five of this title or any other provision of state or local law and the employee reasonably believes dismissal or other disciplinary action would not have been taken but for the conduct protected under subdivision two of this section, he or she may assert such as a defense before the designated arbitrator or hearing officer. The merits of such defense shall be considered and determined as part of the arbitration award or hearing officer decision of the matter. If there is a finding that the dismissal or other disciplinary action is based solely on a violation by the employer of such subdivision, the arbitrator or hearing officer shall dismiss or recommend dismissal of the disciplinary proceeding, as appropriate, and, if appropriate, reinstate the employee with back pay, and, in the case of an arbitration procedure, may take other appropriate action as is permitted in the collectively negotiated agreement [emphasis supplied].

(b) Where an employee is subject to a collectively negotiated agreement which contains provisions preventing an employer from taking adverse personnel actions and which contains a final and binding arbitration provision to resolve alleged violations of such provisions of the agreement and the employee reasonably believes that such personnel action would not have been taken but for the conduct protected under subdivision two of this section, he or she may assert such as a claim before the arbitrator. The arbitrator shall consider such claim and determine its merits and shall, if a determination is made that such adverse personnel action is based on a violation by the employer of such subdivision, take such action to remedy the violation as is permitted by the collectively negotiated agreement [emphasis supplied].

(c) Where an employee is not subject to any of the provisions of paragraph (a) or (b) of this subdivision, the employee may commence an action in a court of competent jurisdiction under the same terms and conditions as set forth in article twenty-C of the labor law.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09379.htm

Vacating a Section 3020-a arbitration award

Vacating a Section 3020-a arbitration award
Westhampton Beach UFSD v Ziparo, 275 AD2d 411

It is not unusual for a party to decide to challenge the determination of the hearing officer or panel following a Section 3020-a disciplinary action. Essentially a Section 3020-a decision is treated as an arbitration award and thus the provisions of Article 75 of the Civil Practice Act and Rules [CPLR] control any attempt to vacate such an award.

As the Westhampton Beach decision by the Appellate Division, Second Department, demonstrates, the grounds for vacating an award under Article 75 are very limited.

The district filed certain disciplinary charges against David Ziparo. The Section 3020-a hearing officer found him guilty of the charges. The penalty imposed: suspension without pay for one year. In addition, the hearing officer conditioned Ziparo’s return to teaching upon his obtaining a certification of psychiatric fitness.

Westhampton appealed a State Supreme Court’s confirmation of the hearing officer’s determination. The Appellate Division dismissed the appeal, ruling that Westhampton did not demonstrate any basis for vacating the award under CPLR 7511 and the hearing officer’s determination has a rational basis and is supported by the record.

On what basis could a court vacate a determination by a Section 3020-a hearing officer or panel? Section 7511(b)(1) of the CPLR allows a court to vacate or modify an award only if it finds:

1. Corruption, fraud or misconduct in procuring the award; or

2. Partiality of an arbitrator appointed as a neutral, except where the award was by confession;

3. An arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

4. The failure to follow the procedure set out in Article 75, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection.

In addition, courts have held that an arbitration award may be vacated if it is inconsistent with a strong public policy.

Another important consideration when deciding whether to challenge a Section 3020-a disciplinary determination: the statute of limitations. Section 3020-a(5) provides that such a challenge must be filed within ten days of the receipt of the decision -- a very short period in which to perfect the appeal.