Work related disability

Work related disability

Cocco v NYC Dept. of Trans., 266 AD2d 634

From time to time, an employee will file a workers’ compensation claim alleging that his or her work aggravated a pre-existing condition. In the Cocco case, the Appellate Division, Third Department, sets out the distinction courts make in considering such cases.

The Workers’ Compensation Board had approved Cocco’s claim for benefits based on his contention that his work for the New York City Department of Transportation as a bridge painter aggravated his preexisting chronic obstructive pulmonary condition. The Board ruled that Cocco had suffered an occupational disease within the meaning of Workers’ Compensation Law Section 3(2)(30). The Department appealed.

The Appellate Division said that in this type of case, it all depends on whether the employee’s disability resulted from (a) a previously active disabling condition; or (b) the aggravation of a condition, which was previously dormant and not disabling.

The Appellate Division said that “[t]o be compensable, the preexisting condition must be dormant and nondisabling and some distinctive feature of the employment must cause disability by activating the condition.”

Cocco and his expert both testified that Cocco’s pulmonary condition was dormant and nondisabling, and that “his exposure to noxious substances as a bridge painter for the employer acted on the preexisting condition in such a manner as to cause disability which did not previously exist.”

This, said the court, constituted substantial evidence for the Board’s determination and sustained the award.

Some guidelines followed by the courts when reviewing disciplinary arbitration awards

Some guidelines followed by the courts when reviewing disciplinary arbitration awards
Matter of Watt v East Greenbush Cent. School Dist., 2011 NY Slip Op 04795,
510841

In considering an appeal of an adverse disciplinary arbitration pursuant to Article 75 of the Civil Practice Law and Rules, the Appellate Division observed that:

1. Courts must review Education Law §3020-a disciplinary determinations by a Hearing Officer in accordance with the provision set out in §7511 of the Civil Practice Law and Rules, which section permits vacatur of an award on grounds of misconduct, abuse of power or procedural defects.*
2. Where the parties are required to submit the matter to arbitration, in contrast to submitting the matter to “voluntary arbitration,” courts must ensure that the award comports with due process and is supported by adequate evidence 
3. A court, when conducting its review of an arbitration award, must accept the Hearing Officer's credibility determinations.
4. The free speech rights of school employees are not violated when a school district
   imposes discipline on teachers for directing ethnic slurs or disparaging comments towards students in class.
5. Ethnic comments deemed offensive or embarrassing by students is a proper basis for initiating disciplinary action against a teacher.

* Courts have also vacated arbitration awards found to violate “strong public policy.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04795.htm

Duty of fair representation

Duty of fair representation

Hickey v Hempstead Union Free School Dist., 36 AD3d 760

Robert L. Hickey’s lawsuit against the Hempstead Union Free School District involved provisions in the collective bargaining agreement negotiated between his union, the Hempstead School Administrator’s Association, and his employer, the Hempstead Union Free School District.

Supreme Court dismissed Hickey’s petition after finding that he “lacked standing” to maintain such an action. The Appellate Division agreed.

The Appellate Division pointed out that a union member generally has no individual rights under a collective bargaining agreement that he or she can enforce against an employer unless:

1. The negotiated agreement, by its terms, permits an individual to proceed directly against the employer to enforce a term or condition set out in the agreement, or

2. The union fails in its duty of fair representation.

As the collective bargaining agreement did not provide for negotiating unit members taking direct action against the school district, Hickey could only maintain his action if he could show that the Hempstead School Administrator’s Association violated its duty of fair representation with respect to his claim.

Here, said the court, Hickey’s petition did not contain any allegation that the Association had breached its duty of fair representation. Indeed, said the Appellate Division, in response to Hickey’s filing an improper practice charge against the Association with the Public Employment Relations Board (PERB), PERB dismissed his complaint, finding that the union had not breached its duty of fair representation. Hickey never appealed PERB’s determination.

The Appellate Division concluded that the Supreme Court properly granted the school district’s motion to dismiss the complaint on the ground that the Hickey lacked standing to maintain the action.

The decision if posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2007/2007_00493.htm

Teacher disqualified for unemployment insurance benefits after refusing substitute position

Teacher disqualified for unemployment insurance benefits after refusing substitute position

Kurtz v Henrietta Central School District v Commissioner of Labor, 37 AD3d 895

An art teacher was employed by the Rush Henrietta Central School District during the 2003-2004 school year. Her position was abolished effective July 1, 2004. The District, however, offered her a position as a long-term substitute art teacher for the first semester of the 2004-2005 school year to replace a teacher who was on maternity leave. The District made the offer in May 2004 and again in July 2004, but Kurtz did not accept it.

Kurtz had received over $4,000 in unemployment benefits when the district filed an objection with the Unemployment Insurance Board. After a hearing, Kurtz’s claim was disallowed “because she refused an offer of suitable employment without good cause.”

When Kurtz appealed, the Appellate Division sustained the Board’s determination, holding that “A claimant who rejects employment for which he or she is reasonably suited by training and experience will be disqualified from receiving unemployment insurance benefits.”

As Kurtz had the qualifications necessary to perform the duties of a long-term substitute art teacher, the court said that fact that it was a temporary position was not a legitimate reason for her to refuse to accept it.

Noting that the District’s human resources director testified that Kurtz would have received wages and benefits similar to those she received as a probationary art teacher, the Appellate Division said that:

Claimant's misunderstanding of the terms of the offer and her failure to make further inquiry concerning the same do not excuse her inaction. Furthermore, claimant's admitted failure to disclose the job offer when certifying for benefits supports the Board's finding that she made a willful misrepresentation and its decision to charge her with a recoverable overpayment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2007/2007_00717.htm

New York Governor Andrew Cuomo introduces pension reform legislation

New York Governor Andrew Cuomo introduces pension reform legislation

Source: Office of the Governor

On June 9, 2011 Governor Andrew M. Cuomo introduced pension reform legislation that would impose a new Tier VI for future employees of the State and its political subdivisions other than New York City. Estimated savings of $93 billion over the next 30 years.

The bill also includes, at the request of Mayor Michael R. Bloomberg, a separate pension reform proposal for New York City and the uniformed services.

The new pension tier will increase the retirement age for new employees from 62 to 65, increase employee pension contributions and end so-called pension padding where employees accumulate substantial amounts of overtime in their final years of service to increase their pension.


Key elements of the proposed legislation:*

1. Raises the retirement age from 62 to 65

2. Ends early retirement

3. Requires employees to contribute six percent of their salary for the duration of their career

4. Provides 1.67 percent annual pension multiplier

5. Vests after 12 years instead of 10 years

6. Excludes overtime from final average salary

7. Uses a five-year final average salary calculation with an 8 percent anti-spiking cap

8. Excludes wages above the Governor's salary of $179,000 from the final average salary calculation

9. Eliminates lump sum payouts for unused vacation leave from the final average salary calculation

10. Prohibits the use of unused sick leave for additional service credit at retirement

The proposed reform of the state pension system would impact new hires by the state and local governments, including school districts.

The City of New York’s proposed pension reform plan would cover new employees of New York City, including the uniformed services.

The text of the proposed bill is available here. 

The text of the proposed bill memo is available here.

* Changes applicable to individuals eligible to elect to participate in the several optional retirement plans available to certain employees of the State Department of Education, the State University of New York and its community colleges and other entities are set out in Sections 25, 26 and 27 of the proposed legislation.

Policy limits on vacation travel during FMLA leave

Policy limits on vacation travel during FMLA leave

Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

A federal district court recently upheld an employer's policy requiring an employee to remain in the immediate vicinity of their home as a condition of receiving paid sick leave, including during periods when the employee is on FMLA leave.  In limited circumstances, the policy allowed an employee to travel outside of the immediate vicinity of their home for medial treatment, family needs, and with the prior consent of the employer.  Violation of the policy could result in termination of paid leave, as well as discipline. 

Denise Pellegrino was employed by the Communications Workers of AMerica (CWA) in a clerical capacity.  Pursuant to the CWA FMLA-Sick Leave Policy, Pellegrino notified the CWA that she needed leave for surgery.  The CWA approved Pellegrino's request for FMLA leave, and notified her that she would be required to substitute paid sick leave for the absence.  While on approved leave, Pellegrino traveled to Cancun, Mexico, where she stayed for a week.  There was no medical or family reason for the trip, nor had she secured the CWA's prior consent to travel outside of the immediate vicinity of her home during leave. The CWA terminated Pellegrino for violation of the CWA's leave policies. 

Pellegrino filed suit alleging that her termination violated the FMLA.  CWA moved for summary judgment alleging that the FMLA did not protect Pellegrino from termination for a reason unrelated to her FMLA leave- namely, violation of the CWA policy restricting unapproved travel for someone receiving paid sick leave benefits.  CWA argued that it would have terminated her irrespective of her status under the FMLA as it had the right to enforce its policies restricting unapproved travel where an employee is on paid sick leave.   The Court agreed with the CWA.

The Court confirmed that the FMLA does not shield an employee from termination if the employee was allegedly involved in misconduct related to the use of FMLA leave.  So long as employer policies do not conflict with or diminish an employee's FMLA rights, the FMLA, the Court found, "in no way prevent an employer from instituting policies to prevent the abuse of FMLA leave."  Here, CWA terminated Pellegrino because she violated CWA's Sickness and Absenteeism policy by leaving the immediate vicinity of her home without prior approval, or for any other permissible reason.  The Court reasoned that the policy served the legitimate purpose of ensuring that the privilege of paid sick leave is not abused. The Court also found that the policy does not discourage or prevent CWA employees from taking FMLA leave. 

The Court awarded summary judgment to the CWA for violation of the CWA travel restriction policy, a legitimate reason independent of her use of FMLA leave.

Mr. Bosland Comments: The FMLA does not prohibit an employer from enacting and enforcing leave and attendance policies to control leave abuse even where, as here, those policies may apply to FMLA leave.  Remember, under federal law, FMLA leave is always unpaid.  The only way an employee can get paid while on FMLA leave is pursuant to an employer's paid leave policy.  Employers are not required to offer paid sick or personal leave, but many do.  An employer's paid leave policy may not single out FMLA leave for special treatment.  Rather, as in Pellegrino, the paid leave policy should generally apply to all absences due to sickness or disability, which may also encompass FMLA leave.

In a fascinating footnote, the Court in dictum opined that, even if an employer did not have a formal policy restricting travel during FMLA leave, "no reasonable jury could find that an employer acts illegitimately or interferes with FMLA entitlements when that employer terminates an employee for taking a week-long vacation to Mexico without at least notifying the employer that her doctor had approved the travel or that she would be out of the country."  

I note that the FMLA generally does not require an employee on approved FMLA leave to notify an employer of their whereabouts during leave.  The Court's dictum would appear to impose such a requirement where none exists.  Absent a policy, I would not counsel employers to take adverse actions against employees for failure to provide notice of their intent to leave the vicinity of their homes during FMLA leave.    

The decision is consistent with a long line of cases allowing employers to impose and enforce neutral leave and attendance policies to curb leave abuse, even where the leave is covered by the FMLA.  

   

Pellegrino v. Communications Workers of America, AFL-CIO, Civil Action No. 10-0098 (W.D. Pa. May 18, 2011) http://op.bna.com/dlrcases.nsf/id/jaca-8h2m25/$File/Pellegrino.pdf