Refusing a light duty assignment may affect eligibility for other benefits

Refusing a light duty assignment may affect eligibility for other benefits

Peluso v Fairview Fire District, 269 AD2d 623

One factor to consider in cases involving claims resulting from job related injuries or disease: the impact of refusing to accept a light duty assignment with respect to other benefits that might be available to a disabled worker.

Clearly both General Municipal Law Section 207-a, applicable to firefighters and General Municipal Law Section 207-c, applicable to law enforcement personnel, provide for the discontinuation of benefits if a disabled police officer or firefighter declines to perform a light duty assignment consistent with his or her position unless the individual can produce evidence that he or she is medically unqualified to perform the light duty assignment.

In the Peluso case, the Appellate Division agreed with the Workers’ Compensation Board that Peluso’s rejection of a light duty assignment was evidence that he had voluntarily withdrew from the labor market. This, said the court, justified the Board denying his claim for workers’ compensation benefits.

Peluso retired from his position of fire captain, claiming he could no longer work as the result of a disabling back condition caused by several job related injuries.

The Appellate Division, in affirming the Board’s action, said that the fire chief’s testimony that several different types of light-duty assignments were available to all firefighters, including Peluso, depending on the nature of the disability constituted substantial evidence sufficient to sustain the Board’s determination.

The fire chief had testified that Peluso did not request a light-duty assignment, did not accept a light duty assignment when one was offered to him and that he continued to perform his regular duties as a captain, including responding to two calls on his last day of work.

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Disclosure of the terms of settlement agreements pursuant to a FOIL demand

Disclosure of the terms of settlement agreements pursuant to a FOIL demand

Hansen v Wallkill, App. Div., 2d Department, 270 AD2d 390

Sometimes an individual and an employer decides to terminate the individual’s employment or settle a disciplinary action in accordance with agreed upon terms and conditions. Such an agreement typically contains a “non-disclosure” clause. What happens if the terms of the settlement are made public without the expressed consent of both parties? This was the issue raised in the Hansen case.

Jon Hansen and the Town of Wallkill entered into a settlement agreement that required the Town to make “severance payments” to Hansen. When the town supervisor, Howard Mills, revealed the amount of the severance payments being made to Hansen under the terms of the agreement to the town board, Hansen sued for damages, claiming the disclosure constituted a breach of contract.

Hansen pointed to a clause in the agreement that provided that the terms of the settlement were to remain confidential except as may be required by law or legal process.

Mills, on the other hand, argued that the town board was told the amount of Hansen’s severance pay in response to a question during a regular meeting and that his disclosing this information was required under the Freedom of Information Law (FOIL).*

The Appellate Division sustained a lower court’s ruling dismissing Hansen’s complaint.

The court said that “[i]t is well settled that FOIL imposes a broad duty of disclosure on government agencies,” citing Section 84 of the Public Officers Law.

In essence, all public records are to be disclosed pursuant to a FOIL demand except:

1. When disclosure is specifically prohibited by law or by a court order; or

2. Where a record falls within an exception which permits the custodian of the record or document, as a matter of the exercise of discretion, to withhold the information and the entity elects to exercise its discetion and withholds it.

The disclosure of the amount of the severance payment, said the court, does not fall within any of the FOIL exceptions. Further, while the town supervisor did not seek court authorization for the disclosure, the agreement did not require prior court authorization to do so.

Suppose the information sought under FOIL concerns a disciplinary settlement. Can a public employer agree to keep the settlement document confidential?

This issue was considered by the Appellate Division in LaRocca v Jericho UFSD, 220 AD2d 424. In LaRocca, the court decided that the terms of a disciplinary settlement were subject to disclosure under FOIL.

The court held that a disciplinary settlement agreement did not constitute an employment history as defined by FOIL and therefore was presumptively available for public inspection. In addition, the court said that “as a matter of public policy, [a public employer] cannot bargain away the public’s right to access to public records.”

The Appellate Division decided that a settlement agreement, or any part of it, providing for confidentiality or denying the public access to the document is unenforceable as against the pubic interest.

The settlement agreement between LaRocca and Jericho, however, contained references to charges that LaRocca denied, or were not admitted, together with the names of other employees. The Appellate Division held that disclosure of those specific portions of the agreement would constitute an unwarranted invasion of privacy within the meaning of FOIL and thus could be redacted from the document.

* A “FOIL request” is the method used by an individual to inform the custodian of the public record involved that he or she wishes to inspect or copy public records and to identify the particular documents or records of interest.

Employee suspended without pay for eight days after being found guilty of refusing to immediately comply with supervisor’s instruction

Employee suspended without pay for eight days after being found guilty of refusing to immediately comply with supervisor’s instruction
NYC Dept. of Transportation v Solli, OATH Index #2888/10 .

OATH Administrative Law Judge Kara Miller recommended dismissal of charges brought against a New York City Department of Transportation employee. .

With respect to charges involving an alleged verbal and physical altercation with a co-worker with a co-worker, Judge Miller determined that the employee, Donna Solli, attempted to avoid a confrontation with a co-worker by leaving the area. .

The co-worker, however, followed Solli to a different location and initiated physical contact. Judge Miller found that “the force used by [Solli], if any, was defensive. .

Solli was also served with a separate charge of insubordination. The Department alleged that Solli refused her supervisor’s instructions to repair a pothole.

Although Solli ultimately complied with the supervisor’s directive, Judge Miller ruled that her failure to do so promptly was misconduct. .

The ALJ recommended that the Department place Solli on suspension without pay for eight days. . The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2888.pdf
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Extending a promotion eligible list following wrongful disqualification

Extending a promotion eligible list following wrongful disqualification
Matter of Carozza v City of New York, 37 AD3d 247

Brigitte Carozza won her lawsuit contending that she and her co-plaintiffs had been “wrongfully disqualified retroactively from consideration for promotion by reason of having just been placed in new job titles” (see Matter of Carozza v City of New York, 10 AD3d 488 [2004]).* As a result, Carozza and her co-plaintiffs were placed on promotion eligible lists just one month before those lists expired.

Carozza and her co-plaintiffs immediately brought a second lawsuit seeking the creation of special eligible lists pursuant to Civil Service Law §56(3). The placement of their names on such a list would provide them with an additional period of eligibility for promotion from a list. Carozza, and her co-petitioners, however, were not as successful in this second action.

The Appellate Division ruled that Carozza’s “successful challenge” to her, and her co-petitioners’ disqualification was not based on a finding that an error had caused a flaw in the entire promotional process, resulting in a list that did not accurately measure the merit and fitness of those candidates whose names were on the list.**

Accordingly, said the court, the remedy sought in this second lawsuit “does not comport” with the merit and fitness mandate set out in Article V, Section 6 of the New York State Constitution.

The court’s rationale: “Under the circumstances, it cannot be said that the original lists had no legal existence and thus could not have expired.”

The decision is posted on the Internet at
:http://nypublicpersonnellawarchives.blogspot.com/2007/02/eligibility-for-promotion.html

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* In Carozza I, the court said: “CSC rationally concluded that the employees' acceptance of jobs in a new title series could not retroactively disqualify them for promotions in their old title series for which they were qualified at the time they took the promotional examination, at least in the absence of clear notice that by accepting the new jobs they were effectively voiding the examinations and otherwise disqualifying themselves for promotion in the old series.”

** Civil Service Law §56(3), in pertinent part, provides as follows: Notwithstanding any law to the contrary, the name of any applicant or eligible whose disqualification has been reversed or whose rank order on an eligible list has been adjusted through administrative or judicial action or proceeding shall be placed on an eligible list for a period of time equal to the period of disqualification or for the period the application has been improperly ranked, up to a maximum period of one year or until the expiration of the eligibility list, whichever is longer. If an eligible list expires prior to the expiration of such period of restoration, the name of the applicant or eligible shall be placed on a special eligible list, which shall have a duration equal to the remainder of the period of restoration.

Scope of arbitrating an alleged violation of a collective bargaining agreement

Scope of arbitrating an alleged violation of a collective bargaining agreement

Richfield Springs CSD v Allen, 270 AD2d 734

Changes in health insurance benefits may be initiated by a third party that actually provides the benefit. Does an employee organization have any right to challenge a unilateral change in the health insurance plan made by the third party?

This was the major issue in Richfield Springs, a case that essentially explores the issue of the scope of arbitration under a Taylor Law agreement.

The health insurance plan covering members of the Richfield Faculty Association was changed. The plan had been established under Sections 92-a and 119 of the General Municipal Law and was commonly referred to as the BOCES plan.

The Association’s basic objection: there was a change of carriers responsible for administering the BOCES Plan’s coverage for prescription drugs. The Association’s basic concern: the coverage to be provided by the new carrier would be inferior to the coverage under the BOCES’s existing plan.

The Association demanded that the former prescription drug insurance be continued and that unit members be given reimbursement for any financial loss that they incurred as a result of the change. To enforce its demand, the Association filed a grievance formally objecting to the change. Eventually Richfield Springs Faculty Association President Tracy Allen demanded that the Association’s grievance be submitted to arbitration.

In response to the demand for arbitration, the Richfield Central School District asked for, and obtained, a stay of arbitration from a State Supreme Court judge. Its argument: the dispute was not subject to the arbitration clause of the Agreement. The Association appealed.*

The Appellate Division reversed the lower court’s ruling. The court decided that the Association’s grievance regarding the change in the carrier of the prescription drug plan covering its members is arbitrable after all.

The court explained that “[i]t is settled law that grievances arising under public sector parties’ collective bargaining agreements are subject to arbitration where both arbitration of the subject matter of the dispute is authorized by the Taylor Law (Civil Service Law Article 14) and the parties clearly agreed by the terms of their contractual arbitration clause to refer their differences in the specific disputed area to arbitration,” citing Matter of Liverpool Central School, 42 NY2d 509.

This view was amplified by the Court of Appeals in a subsequent ruling, Matter of Watertown Education Association, 93 NY2d 132.

Using a two-step analysis, first the Appellate Division applied the Liverpool test and concluded that contract arbitration clause in the contract covered the subject matter of the dispute. It then applied the Watertown test -- did the parties in fact agree to arbitrate this particular grievance? It concluded that the parties had so agreed.

The court pointed to the fact that the Richfield Springs collective bargaining agreement specifically included a clause stating that prescription drug coverage was to be provided by Prescription Card Services (PCS). Further, said the court, the Agreement expressly provided that [a]ny change in [insurance] plan or carrier shall be by mutual agreement of the parties.

The Appellate Division said that since there is no dispute that the specified carrier of the prescription drug plan was changed from PCS to another provider without the Association’s consent, this supported the claim of an alleged violation of the Agreement, which the parties clearly and unequivocally agreed to arbitrate.

What about the district’s argument that it was not compelled to arbitrate changes unilaterally initiated by a third party? The Appellate Division decided that this was irrelevant insofar as the parties to the collective bargaining agreement were concerned.

The decision indicates that the fact that the claimed reduction in employee health benefits may have been effected by a third party, here the BOCES Plan’s Board of Directors, which was not a party to the collective bargaining agreement, rather than by the school district, does not determine whether or not the grievance is arbitrable.

The test applied by the Appellate Division: where the parties broadly agreed to arbitrate any alleged violation of their collective bargaining agreement or any dispute with respect to its meaning or application, and included language dealing specifically with health insurance benefits, a grievance concerning a claimed reduction in health insurance benefits is arbitrable.

Accordingly, the Appellate Division ruled that the Association’s grievance was arbitrable and the scope of the pertinent provisions of the Agreement and the merits of the grievance should be resolved by the arbitrator.

In another case involving the implementation of a contract arbitration procedure, In re Marinelli (Keller), 269 AD2d 750, the Appellate Division, Fourth Department granted Keller’s motion to compel the arbitration of a contract dispute.

Keller, as president of the Wayne Finger Lakes BOCES Faculty Association, had submitted a grievance claiming that the BOCES’s scheduling of a work day prior to Labor Day was in violation of an express provision in the collective bargaining agreement.

When the BOCES refused to submit the question to arbitration, Keller filed a petition to compel arbitration pursuant to Article 75 of the Civil Practice Law and Rules.

The Appellate Division pointed out the collective bargaining agreement in question defined an arbitrable grievance as a claim by any member of the bargaining unit based on a violation of any of the specific and express provisions of this Agreement.

The court agreed with the Association that parties agreed `by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration.’

However, there are other considerations that may preclude a unilateral change in a Taylor Law agreement from being submitted to arbitration.

Although not identified as an issue in the Richfield Springs case, as the Appellate Division, Second Department noted in Port Washington USFD v Port Washington Teachers Association, 268 AD2d 523, [motion for leave to appeal denied, 95 NY2d 761], a statute, decisional law or public policy may preclude referring a Taylor Law contract dispute to arbitration.

In Port Washington, the parties agreed to include a specific religious holiday provision in a Taylor Law agreement. The clause allowed employees to be absent with pay to observe certain religious holidays without charging any leave accruals. The school district then refused to implement the provision, claiming that it was unconstitutional.

The Appellate Division agreed that the provision was unconstitutional and held that the school district’s refusal to implement the contract clause was not subject to arbitration under the contract’s grievance procedure.

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* Initially the Association’s motion to compel arbitration was granted by the Supreme Court but subsequently an amended order was issued staying arbitration based on the court’s finding that the Taylor Law agreement did not bind the district to arbitrate disputes between the Association and a third party, here the BOCES Plan administrators.