Health insurance coverage for domestic partners

Health insurance coverage for domestic partners
Matter of Putnam/Northern Westchester Bd. of Coop. Educ. Servs. v Westchester County Human Rights Commn, 2011 NY Slip Op 01030, Appellate Division, Second Department

A woman employed by a school district that provides its employees with health insurance coverage through a BOCES "Health Benefits Consortium" had lived with a male partner in a romantic relationship for more than 30 years. Never married, she and her partner registered their domestic partnership with Westchester County in 2006

When the Consortium’s Board voted to extend dependent health care benefits to same-sex domestic partners of “member employees,” the employee asked for "Domestic Partner health coverage" for her opposite-sex domestic partner pursuant to the Plan's "Domestic Partner Policy." The Consortium, however, advised the employee that it had denied her request because its “Domestic Partner Policy” only applied to those in a same-sex domestic partner relationship.

The employee filed a complaint with the Westchester County Human Rights Commission alleging that she had been unlawfully discriminated against on the basis of her sexual orientation and her marital status in violation of the Westchester County Human Rights Law §700.03.

Ultimately the Westchester County Human Rights Commission agreed with the employee, finding that the Consortium had violated §700.03 by unlawfully discriminating against the employee on the basis of her sexual orientation and marital status.

The Commission ruled that the employee was entitled to domestic partner health care benefits for her opposite-sex domestic partner to the same extent "as if he were her same-sex domestic partner." It enjoined the Consortium from maintaining its policy of extending health care benefits to same-sex domestic partners and not to opposite-sex domestic partners and awarded the employee $24,178 in “damages.”

The Appellate Division annulled the Commission’s determination.

As to the employee's claim of discrimination on the basis of marital status, the court held that the employee had “failed to meet her burden of demonstrating a prima facie case of discrimination based upon marital status because eligibility for the domestic partner health care benefits for which she applied ‘[does] not turn on the marital status’ of the employee.”

Turning to the employee's allegation that she had been the victim of unlawful discrimination based on her sexual orientation, the court said that the employee had established a prima facie case by demonstrating that “the provision of health care benefits to same-sex domestic partners and denial of such benefits to her and her opposite-sex domestic partner” sets out an inference of discrimination.

Accordingly, the Appellate Division said that the burden shifted to the Consortium to set forth a legitimate, nondiscriminatory reason for its decision to extend domestic partner benefits only to same-sex couples.

The court decided that the Consortium had, in fact, met its burden by demonstrating that the reason for its offering health care benefits only to same-sex domestic partners is that same-sex domestic partners cannot obtain benefits offered by the Board to an employee's spouse because those in a same-sex domestic partner relationship cannot lawfully marry in this State at this time. The decision notes that the Consortium’s “Domestic Partner Policy” stated that it may be rescinded in the event that same-sex marriage becomes legal in the participant's "state of residence."

This, the Appellate Division concluded, set out a legitimate, nondiscriminatory basis for the Consortium's decision to offer dependent health insurance coverage only in situations involving same-sex couples in consideration of the current impediment to same-sex couples marrying in New York State.

In contrast, participating employers in the New York State Health Insurance Plan [NYSHIP], if the participating employer has elected to offer “domestic partner” health insurance coverage to its employees and their dependants, dependent coverage is available to both an employee’s same-sex domestic partner or an employee's opposite-sex domestic partner.

A domestic partnership, for the purposes of eligibility for coverage in NYSHIP, is one in which the participant and the participant’s partner are 18 years of age or older, unmarried and not related in a way that would otherwise bar marriage, living together, involved in a lifetime relationship and financially interdependent. To enroll a domestic partner in NYSHIP the participant must have been in the partnership for at least six months and be able to provide "proof of residency and financial interdependence."

In addition, persons who are party to a same sex marriage, validly entered into in a jurisdiction where same sex marriage is permitted, are eligible for spousal benefits.

NYSHIP also advises that "Under the Internal Revenue Service (IRS) rules, the fair market value of the health insurance benefits is treated as income for tax purposes when a person who is not a qualified dependent under federal IRS rules is covered in NYSHIP."

NYSHIP also notes that the employee’s extra cost for domestic partner coverage "cannot be paid with pre-tax dollars" and suggests that participants consult with his or her tax advisor concerning how enrolling his or her domestic partner will affect his or her personal income tax liability.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01030.htm
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Guidelines and procedures for appointments pursuant to §§55-b and 55-c of the Civil Service Law

Guidelines and procedures for appointments pursuant to §§55-b and 55-c of the Civil Service Law
Source: New York State Department of Civil Service - Division of Staffing Services

The New York State Department of Civil Service has published Policy Bulletin 11-01, setting out program guidelines and procedures for appointments pursuant to Civil Service Law §55-b [employment of persons with disabilities by the State as an employer] and Civil Service Law §55-c [employment of veterans with disabilities by the State as an employer].*

The text of the Policy Bulletin is posted on the Internet at:
http://www.cs.state.ny.us/ssd/Manuals/SPMM/1800Appointments/Policy%20Bulletin%2011-01.htm

A PDF version of the Policy Bulletin, suitable for printing, is posted on the Internet at:
http://www.cs.state.ny.us/ssd/pdf/pb11-01.pdf

* §55-a of the Civil Service Law provides for the employment of persons with disabilities by municipalities as an employer.

Candidate ineligible for appointment from the expired list

Candidate ineligible for appointment from the expired list
Hancock v The City of New York, 272 AD2d 80

New York State Supreme Court Justice Ira Gammerman issued an order directing the New York City Department of Correctional Services to complete [Louis Hancock’s] hiring process and to pay him back pay from July 6, 1989, the date on which the department decided not to appoint Hancock, reduced by actual earnings from other employment.

There were a number of problems with Judge Gammerman’s remedy, however, and the Appellate Division vacated the order.

The eligible list on which Hancock’s name was certified had expired prior to Judge Gammerman’s ruling. The Appellate Division said that Hancock was no longer entitled to be hired as a corrections officer, notwithstanding the fact that he was improperly declared to have been ineligible for the job.

However, the Appellate Division said that Hancock was entitled to some compensation and remanded the case to Judge Gammerman for re-calculation of compensatory damages for the period July 6, 1989 to January 5, 1995, the first day of his trial.

Availability of direct action in the event the employee organizations refuses to process unit member’s grievance to arbitration

Availability of direct action in the event the employee organizations refuses to process unit member’s grievance to arbitration
Burning v Niagara Frontier Transit Metro System and Local 1342, 273 AD2d 830, Motion for leave to appeal denied, 95 NY2d 765

Few collective bargaining agreements allow a unit member to file a demand to arbitrate a grievance. In the absence of such authority, the general rule is that only the employee organization can demand that a grievance be submitted to arbitration.

Suppose the employee organization decides not to appeal a disciplinary or other grievance to arbitration. What, if any, action -- usually referred to as direct action -- can the unit member take in an attempt to challenge or go around the union’s decision?

The Burning case considers the major exception to the general rule barring direct action by a unit member -- the unit member may initiate direct action against the employer if he or she can establish that he or she was denied fair representation by employee organization.

Kenneth L. Burning was terminated from his position with the Niagara Frontier Transportation Authority.

Burning sued in an effort to overturn his dismissal, contending that his union, Local 1342, Amalgamated Transit Union, breached its duty of fair representation when it decided not to demand arbitration challenging his termination by the Authority.

The Appellate Division, however, noted that the mere failure of a union to proceed to arbitration does not establish a breach of the duty of fair representation.

If an employee organization declines to arbitrate a grievance over the objections of its member the individual may take direct action only if he or she can demonstrate that the Union’s conduct was arbitrary, discriminatory or in bad faith.

As Burning did not show that the union’s decision was arbitrary, discriminatory or made in bad faith, the Fourth Department ruled that Supreme Court properly dismissed Burning’s petition challenging his dismissal.