Chronic absenteeism

Chronic absenteeism

Sirota v NYC Bd. of Ed., 283 AD2d 369

The Sirota case points out that a serious, chronic health condition may not necessarily constitute a disability within the meaning of the Americans With Disabilities Act and other civil rights enactments.

New York City special education teacher Rochelle M. Sirota suffered from cancer. She sued the NYC Board of Education contending that it had unlawfully discriminated against her because of disability and, in addition, unlawfully retaliated against her following her requests for a “reasonable accommodation” because of her disability.

The Appellate Division dismissed her appeal. The court said that Sirota's “cancer and attendant surgeries do not constitute a disability within the meaning of the relevant discrimination statutes (2 USC 12112; New York's Executive Law Section 292[26]; and the Administrative Code of City of New York, Section 8-107[15]) as they did not substantially limit her in any major life activity.”

In support of this determination, the court pointed to statements in letters prepared by Sirota's personal physician “affirming her ability to work on a regular, full-time basis.”

Further, said the court, assuming Sirota does have a disability, her chronic absenteeism, tardiness and unsatisfactory performance evaluations establish that she was unable to perform the essential functions of her job as a special education teacher and thus was not otherwise qualified for the position as required by the discrimination statutes.

As to Sirota's claims of retaliation, the Appellate Division ruled that the refusal to accommodate her requests for a schedule modification or transfer and her being given negative performance evaluations do not show an adverse employment action as required by the discrimination statutes, but only a permissible refusal to change the terms and conditions of her employment.

Another element involving Sirota's claims of unlawful discrimination were based her theory that the school district's conduct constituted a “continuing violation.” In addressing this aspect of her petition, the court noted Sirota claimed that she was the victim of “alleged discriminatory conduct preceding her second, 15-month medical leave of absence.”

Under the circumstances, said the court, the continuing violations exception that might otherwise be applicable is unavailable to her “since the leave of absence, which was voluntary and therefore cannot be considered an act of discrimination, interrupted the alleged pattern of discrimination.”

Determining the effective date of tenure in a position

Determining the effective date of tenure in a position

Remus v Tonawanda City School District, 96 NY2d 271

The Remus decision by the New York State Court of Appeals sets out the high court's view with respect to the effective date of a teacher's employment rights flowing from holding a tenured appointment.

The ruling, which affects the effective date of tenure status provided to individuals employed in unclassified service positions, has significant implications with respect to an appointing authority's ability to rescind an appointment to a position in the classified service prior to the employee’s effective of permanent appointment date as well.*

The underlying issue in the Remus case: “May the appointing authority rescind its resolution granting a probationary teacher tenure if it rescinds its resolution prior to the date on which the teacher's tenure would have otherwise taken effect?”

On June 4, 1998, in accordance with the recommendation of the school superintendent, the Tonawanda school board adopted a resolution appointing probationary teacher Jill Remus “to a tenured position effective September 2, 1998.”

On August 31, 1998, the School Board adopted a resolution rescinding its resolution granting Remus a “conditional tenure appointment” and terminated her employment as a probationary teacher. This action by the board followed Remus' declining an offer to extend her probationary period for an additional year that was made to her earlier the same day. Remus appealed the Board's action, claiming she was a tenured teacher and could not be summarily dismissed.

As the Court of Appeals framed the issue: Does a Board of Education resolution that grants tenure to a teacher effective on a specified future date pursuant to the provisions of Education Law Section 2509[1] immediately entitle that teacher to the benefits of tenure?

The Court of Appeal's conclusion: A teacher granted tenure effective on a [specified] future date is not entitled to the benefits of tenure until the effective date specified in the resolution.

The Court explained that the Education Law draws a distinction between probationary teachers and tenured teachers. Probationary teachers can be terminated at any time during the probationary period, for any reason and without a hearing in contrast to tenured teachers who hold their positions during good behavior and competent service, and are subject to dismissal only after formal disciplinary proceedings.**

The basic argument advanced by Remus was that once she was granted tenure by action of the board pursuant to Section 2509 of the Education Law, her employment could not be terminated except for cause after notice and hearing. In Remus’ view, a teacher’s tenure status accrued upon school board’s adoption of the resolution granting an individual tenure effective on a specified date could not be rescinded by a subsequent resolution adopted by the board prior to that effective date.

Responding to a position adopted by the Appellate Division regarding action that the employee is required to take to confirm his or her “tenure status,” the Court of Appeals commented that the Education Law does not require a formal offer and acceptance of a tenure appointment and, “given the express grant of power to make tenure appointments before the end of the probationary period, no reason exists to inject such a requirement into the statute.”

Noting that this specific issue -- rescinding an appointment prior to its effective date -- was not addressed in Weinbrown v Board of Education, 28 NY2d 474, a case cited by Tonawanda in support of its argument, the Court of Appeals held that:

A Board resolution granting a probationary teacher tenure effective on a future date (one set either to coincide with the end of or to occur before the end of that teacher's probationary period) confers tenure upon the teacher only as of that specified future date.

The decision suggests that any permanent appointment, or contingent permanent appointment, that is subject to a probationary period, or an appointment based on reinstatement from a preferred list, whether in the classified service or the unclassified service, may be rescinded prior to its effective date by the appointing authority, provided such action (1) is not otherwise prohibited by law and (2) would not otherwise constitute unlawful discrimination.

It may be significant that the decision refers to the appointing authority's granting tenure effective on a specified future date insofar as trigging the individual's tenure rights are concerned. If, on the other hand, no “future date” is specified, it could be argued that the individual attains his or her tenure rights immediately upon the act granting such status by the appointing authority.***

* With the exception of appointment from a preferred list, a permanent appointment to a position in the classified service is typically subject to the satisfactory completion of a probationary period. Accordingly, while the individual enjoys “permanent status” for certain purposes such the right to notice and hearing if the appointee is to be removed prior to the competition of his or her minimum probationary period or termination in the event of a layoff due to the abolishment of a position, such an individual does not attain “tenure” in the title until he or she has completed the maximum period of probation required by the appointing authority. However, the appointing authority may grant an individual tenure status at any time after the appointee has completed the minimum period of probation required by law or by the rules or regulations of the responsible civil service commission.

** Typically probationers in the classified service may be summarily dismissed from the position only after completing the minimum period of their probationary period and prior to the end of their probationary period. If the appointing authority wishes to remove a probationer before the end of the appointee’s minimum period of probation, it must provide the individual with “notice and hearing” in accordance with the provisions of §75 of the Civil Service Law or in accordance with the controlling provisions of a collective bargaining agreement. However, there is no bar to granting a probationary employee tenure status at any time during his or her probationary period once he or she has completed the required minimum period of probation.

*** The effective date of appointment insofar as rescinding an appointment would not be particularly relevant in the case of a provisional or a temporary appointment as provisional and temporary employees may be dismissed at any time and without a pre-termination hearing unless a collective bargaining agreement otherwise provides.

Work-related stress

Work-related stress

Maine v Commissioner of Labor, 282 AD2d 854

The Unemployment Insurance Appeals Board ruled that Vivian W. Maine was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

Maine argued that he was eligible for unemployment insurance benefits because he resigned from his clerk position with the State Insurance Fund as a result of work-related stress caused by an increased workload due to a reduction in staff.

Pointing out that Maine neither informed his supervisor of the problems he claimed that he was experiencing nor that he had received medical advice to leave his job, the Appellate Division sustained the Appeal Board's determination.

The court said that substantial evidence supports the Board's decision that Maine voluntarily left his employment with the State Insurance Fund without good cause.

Citing Matter of Costello, 268 AD2d 845, the court noted that “dissatisfaction with one's employment, including assertions of being overworked, does not constitute good cause for leaving employment.”

Disciplinary hearing opened to the public

Disciplinary hearing opened to the public

Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/

Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Matter of Doe v. City of Schenectady 84 AD3d 1455, (3d Dep't May 5, 2011), is an interesting case. The court holds that police disciplinary hearings can be open to the public. As the court explained:

In any event, petitioners' contention that Civil Rights Law § 50-a mandates that disciplinary hearings be closed to the public is belied by both the language of the statute and its legislative history. Section 50-a (1) provides, in pertinent part:

All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces of individuals defined as police officers in [CPL 1.20] shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order.

Section 50-a created, for reasons that will be discussed below, an exemption from document disclosure that might otherwise occur under the Freedom of Information Law (see Public Officers Law art 6; Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 567 [1986]). Nothing in section 50-a mentions the word disciplinary hearing, let alone requires that such hearings be held in private, and we discern no import from this omission other than the obvious — that the failure of the Legislature to include it within the statute is an indication that its exclusion was intended (see Pajak v Pajak, 56 NY2d 394, 397 [1982]; Matter of Collins v Dukes Plumbing & Sewer Serv., Inc., 75 AD3d 697, 699-700 [2010], lv granted 15 NY3d 713 [2010]; see also McKinney's Cons Laws of NY, Book 1, Statutes § 74 ["[T]he failure of the Legislature to include [a] matter within the scope of an act may be construed as an indication that its exclusion was intended."], § 94 ["The legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction."]; Bright Homes v Wright, 8 NY2d 157, 162 [1960] ["Courts are not supposed to legislate under the guise of interpretation, and in the long run it is better to adhere closely to this principle and leave it to the Legislature to correct evils if any exist."]; People v Olah, 300 NY 96, 102 [1949] ["A statute must be construed and applied as it is written by the Legislature, not as some judges may believe it should have been written." (citation omitted)];Matter of Kittredge v Planning Bd. of Town of Liberty, 57 AD3d 1336, 1339 [2008] ["In construing a statute, a court must attempt to harmonize all its provisions and to give meaning to all its parts, considered as a whole, in accord with legislative intent. Such intent and meaning is best determined from the plain language of the statutory text." (citations omitted)]).

The legislative history of Civil Rights Law § 50-a is similarly unavailing to petitioners' position. The "statute was intended to apply to situations where a party to an underlying criminal or civil action is seeking documents in a police officer's personnel file, and was apparently designed to prevent 'fishing expeditions' to find material to use in cross-examination" (Matter of[*4]Capital Newspapers Div. of Hearst Corp. v Burns, 109 AD2d 92, 95 [1985], affd 67 NY2d 562 [1986] [citation omitted]; see Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 154 [1999]; Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834 [2001], lv denied 96 NY2d 710 [2001]; Carpenter v City of Plattsburgh, 105 AD2d at 298; Senate and Assembly Introducer Mem in Support, Bill Jacket, L 1976, ch 413; Mem of Div of Criminal Justice Servs, Bill Jacket, L 1976, ch 413). The Court of Appeals has confirmed that "the legislative intent underlying the enactment of Civil Rights Law § 50-a was narrowly specific, to prevent time-consuming and perhaps vexatious investigation into irrelevant collateral matters in the context of a civil or criminal action" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 569 [internal quotations marks and citation omitted]). Significantly, none of the legislative history mentions the topic of disciplinary hearings.

Mitchell H. Rubinstein

NYPPL Comment: The Commissioner’s Regulations [see 8 NYCRR 82-1.9] provide that unless the employee notifies the Education Law Section 3020-a hearing officer at least twenty-four hours before the first day of the hearing that he or she demands a public hearing, the hearing shall be private. This provision appears to be inconsistent with present case law as well as placing a burden on the employee that does not appear to be mandated by law.

Termination for disability pursuant to §73 of the Civil Service Law.

Termination for disability pursuant to §73 of the Civil Service Law.

Dep’t of Education v. L.C. (in PDF), OATH Index No. 1956/11

The New York City Department of Education sought dismissal of a clerical associate for “willful misconduct” pursuant to §75 of the Civil Service Law based upon her long-term absence without leave.

In the alternative, the Department sought to remove the employee from service pursuant to §73 of the Civil Service Law because she was absent for more than one year due to a non-work related disability.

The record established that the employee had been undergoing treatment for breast cancer.

Under the circumstances, OATH Administrative Law Judge Ingrid M. Addison found that the Department failed to prove that its employee’s absence was willful.

However, Judge Addison found that there was substantial cause to terminate the employee because her illness rendered her unfit to perform her obligations to her employer for more than one year.

N.B. In contrast to termination pursuant to Civil Service Law §75, termination pursuant to Civil Service Law §73 is not a “pejorative dismissal” and the individual may apply for reinstatement to his or her former position within one year of the abatement of his or her disability.

Union's duty of fair representation

Union's duty of fair representation

Matter of Robert Hickey, 34 PERB 4530

Hempstead school teacher Robert Hickey alleged that the Hempstead School Administrators Association violated its duty of fair representation when if failed to press the school district to pay him at the same rate of compensation for extra-curricular activities as the district paid to its other administrators for similar work. Hickey said he was paid about $33 per hour for his work while the others were paid $65 per hour.

According to Hickey, although he was advised that “the District refused to budge during negotiations with respect to his compensation ... he was not sure how serious an attempt was made by the Association to increase his compensation to the level of other administrators.”

PERB's Administrative Law Judge Elena Cacavas said that “absent bad faith, the duty of fair representation does not preclude an employee organization from reaching agreements that are more favorable to some unit employees than to others.”

Finding that Hickey failed to show that the Association “acted irresponsibly, grossly negligently or with improper motive,” Cacavas dismissed his charge in its entirety.

Establishing a right to General Municipal Law Section 207-c benefits

Establishing a right to General Municipal Law Section 207-c benefits

White v County of Cortland, 283 AD2d 826, affirmed, 97 NY2d 336

In the White case the Appellate Division, Third Department, set out a basic principal it follows in determining if an individual is eligible for disability benefits under General Municipal Law Section 207-c as follows: Section 207-c is a remedial statute and thus is to be liberally construed in favor of the claimant.

The facts underlying this disability claim case are relatively straightforward.

Herbert I. White suffered a heart attack prior to his being hired as a full-time correction officer by Cortland County in 1989. He performed his duties without incident until June 18, 1995, when he suffered a work-related heart attack. He was disabled from performing his job duties until October 21, 1995. White returned to work but on June 13, 1996, he experienced chest pains and shortness of breath. His request for medical leave was approved. Unable to work, he has been continued on such leave through the present time.

The Section 207-a Hearing Officer determined that “although [White's] condition is work related, it is not causally related [to his employment] 'to a substantial degree'” Cortland adopted the hearing officer's findings and refused to pay White Section 207-c benefits with respect to his absence after June 13, 1996.

A State Supreme Court determined that Cortland decision was “an error of law” and annulled it insofar as it denied White's application for Section 207-c benefits since June 13, 1996.

The Appellate Division affirmed the lower courts ruling, holding that “Section 207-c is a remedial statute intended to benefit law enforcement personnel disabled by a work-related illness or injury and, as such, should be liberally construed in their favor.”

The court said that “[t]he language of the statute and precedent from this Court require only that the claimant prove disability and a causal relationship between the disability and the claimant's job duties.”

Membership on a negotiating team

Membership on a negotiating team

Town of Wallkill and Wallkill PBA, 34 PERB 4543

One of the elements in the improper practice charge considered by PERB Administrative Law Judge Susan A. Comenzo in the Wallkill case concerned the Wallkill PBA's threat to declare impasse if the Town did not alter the membership of its negotiating team.

PBA specifically objected to the town attorney serving as the Town's “spokesperson for the negotiating team.”

Although the PBA conceded that the Town was entitled to have its attorney present at negotiations, it took the position that the Town should use its attorney as a consultant and “not as a spokesperson.”

ALJ Comenzo held that the PBA violated Section 209-a.2 (b) of the Public Employees' Fair Employment Act by threatening, in a memorandum to the town supervisor, that it would declare impasse “if the Town did not alter the make-up of its negotiating team ... and by by-passing the Town's chief negotiator in delivering the declaration of impasse ... and in listing therein a non-negotiator as the Town representative for the purposes of the impasse.”

An Education Law §3813(1) “Notice of Claim” is required only in the event money damages are sought

An Education Law §3813(1) “Notice of Claim” is required only in the event money damages are sought

Civil Serv. Employees Assn., Inc. v Board of Educ. of City of Yonkers, 2011 NY Slip Op 06211, Appellate Division, Second Department

The Civil Service Employees Association filed an Article 78 petition seeking a court order directing “specific performance” of a collective bargaining agreement.

The Appellate Division sustained Supreme Court’s disposition of CSEA’s petition, explaining that as CSEA was only seeking equitable relief, and not money damages, it was not required to serve a notice of claim under Education Law §3813(1).*

As to Supreme Court’s rejection of CSEA’s motion to convert the action to a declaratory judgment action, the Appellate Division ruled that there is only one form of civil action so there is no need to convert this action in order for CSEA to seek declaratory relief.

* Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to the commencement of an action against a school district (Matter of Surdo v Levittown Pub. School Dist., 41 AD3d 486, Education Law §3813; General Municipal Law §50-e[1][a]). 

Selection for appointment to part-time positions

Selection for appointment to part-time positions

PBA v Town of Ramapo, 283 AD2d 650, Motion for leave to appeal denied, 95 NY2d 957

The basic rule is that every position in the classified service is in the competitive class unless placed in a different jurisdictional classification by law or by a rule promulgated by a municipal civil service commission approved by the New York State Civil Service Commission.

The Rockland County Patrolmen's Benevolent Association [PBA] challenged the appointment of part-time police officers to positions that had been jurisdictionally classified as noncompetitive class positions.

As to the merits of the jurisdictional classification of these positions in the non-competitive class, Rockland County argued that placing part-time police officer positions in the noncompetitive class was appropriate because the “appointment of part-time officers through an examination is impractical.”

The Appellate Division said that the controlling law, the Rockland County Police Act, [Laws of 1936, Chapter 52] provides “in relevant part, that '[n]o person shall be appointed a member of such police force unless he [or she] shall have passed an examination, held by the state civil service department, and unless at the time of his [or her] appointment his [or her] name shall be on the eligible list of the state civil service department.” The Rockland County Police Act rather than the Civil Service Law controlled because, said the court, “the Act was intended to supersede any general statute with regard to the establishment, organization, and operation of police departments in Rockland County.”*

The court apparently viewed the County’s argument as intending to convey the idea that a “competitive examination for part-time police personnel was impractical” since candidates for a position in the non-competitive class must qualify for appointment by means of a “noncompetitive examination” as it returned the case to the Supreme Court, Rockland County, for a hearing and determination on the merits of the petition and the County's assertion that appointment of part-time police officers through a competitive examination is impractical.** 

* Section 10 of the Rockland County Police Act sets out essentially the same requirements with respect to the appointment of “special police” officers.

** Civil Service Law §42, in pertinent part, provides that “Appointments to positions in the non-competitive class shall be made after such non-competitive examination as is prescribed by the state civil service department or municipal commission having jurisdiction”

Protected activities under the ADA

Protected activities under the ADA

Foster v Time Warner Entertainment Co., 250 F.3d 1189

The Foster decision demonstrates that an employer violates the ADA if it takes adverse action against a supervisor because he or she arranged for a reasonable accommodation of a disabled worker.

Jane M. Foster sued the Time Warner Entertainment Company. Foster complained that she was terminated for conduct protected by the Americans with Disabilities Act -- her providing a disabled worker under her supervision with a reasonable accommodation of his disability.

The jury agreed, finding that Time Warner had terminated Foster in retaliation for her belief that her actions constituted opposing unlawful discrimination under the ADA. Foster was awarded $75,000 in compensatory damages and $136,000 in punitive damages. The Eighth Circuit Court of Appeals affirmed the decision.

Foster had approved the request submitted by one of the employees she supervised, Kevin Terry, to be excused when he arrived to work late because he suffered from “nocturnal seizures due to epilepsy.” This, Terry said, made it difficult for him to arrive at work consistently on time in the morning because of his seizures. According to the decision, Terry subsequently made up for any lateness by “working late.”

Noting that Time Warner's Human Resources Manual included epilepsy in its definition of disability under the ADA and specifically mentioned a flexible schedule as an example of a reasonable accommodation, Foster approved Terry's request.

The Eighth Circuit said that in order to prevail on her retaliation claim, Foster “need not establish the conduct which she opposed was in fact discriminatory but rather must demonstrate a good faith, reasonable belief that the underlying conduct violated the law.”

What was the “underlying conduct” in this case? Foster's superiors changed the work rules barring the type of accommodation she had approved for Terry.

Proof for a retaliation claim is not the same as that required in a direct claim of disability discrimination, said the court.

According to the decision, Foster consulted Time Warner's manual in the course of dealing with Terry, and it listed epilepsy as a disability protected under the ADA, and it included a modified work schedule as an example of a reasonable accommodation.

The evidence showed that Foster's previous supervisor, Cathy Hill, had provided Terry with that type of accommodation. When Snyder succeeded Hill and issued a new sick leave policy, Foster repeatedly asked how she should accommodate Terry because she believed the new policy conflicted with the manual. The Circuit Court also noted that “there was sufficient evidence that Snyder admitted to Foster that Terry was covered by the ADA.”

Although there was conflicting evidence presented by Time Warner, the jury chose to believe the proof offered by Foster. Foster's evidence, said the court, was sufficient for the jury to find that Foster had an objectively reasonable belief that Time Warner was intentionally violating the ADA when it decided to terminate Terry as well as when it subsequently fired Foster because of her approval of Terry's request and her challenge to the “new policy.”

There also was evidence that at the meeting at which Foster was terminated she showed her superiors the company manual listing epilepsy as a protected condition under the ADA and that it listed a flexible schedule as a reasonable accommodation.

Thus, said the Circuit Court, Foster established a temporal connection between her requests for accommodating Terry's disability and her termination, permitting an inference of retaliation.

As to Time Warner's challenge to Foster's being awarded punitive damages, the Eighth Circuit commented that punitive damages are appropriate if an employer engaged in intentional discrimination with “malice or reckless indifference to [Foster's] federally protected rights,” citing the U.S. Supreme Court's ruling in Kolstad v American Dental Association, 527 US 526.

According to the decision, Foster's superiors -- whom Time Warner conceded were managers -- “knew and admitted that Terry was covered by the ADA and that the company's own manual listed a flexible schedule as a reasonable accommodation.” Malice may be imputed to the employer if the employee who committed the unlawful act is serving in a “managerial capacity” and “acting within his or her scope of employment.

Part-time service does not qualify as “probationary service” for tenure purposes

Part-time service does not qualify as “probationary service” for tenure purposes

Roese v South Country CSD, 283 AD2d 580

Sonja Roese sued the South Country Central School District in an effort to regain her job as a probationary school librarian after the district had advised her that she was to be terminated. Finding that Roese had been terminated from her position as a probationary school librarian with proper notice before her three-year probationary period ended, the Appellate Division, Second Department dismissed her appeal.

Roese had contended that she had acquired tenure by estoppel because her work as a school librarian during the period from 1991 to 1993, which was designated “part-time” work, was in reality full-time work. Thus, she argued, her service during this period should have counted toward tenure.

Clearly, said the court, “part-time teaching service does not constitute probationary service for the purpose of acquiring tenure,” citing Rosenberg v Board of Education of Westbury Public Schools, 51 AD2d 551.

Holding that “[u]nder the facts and circumstances of this case, [Roese's] work during the period from 1991 to 1993 was part-time,” the court ruled that she did not acquire tenure by estoppel.

Misusing an ability to access confidential information in employer’s database

Misusing an ability to access confidential information in employer’s database

Conflicts of Interest Bd. v. McNair (in PDF), OATH Index No. 1114/11

OATH Administrative Law Judge Faye Lewis found that the employee had violated the City Conflicts law by using her City position of eligibility specialist to access confidential information from the agency’s database.

Judge Lewis found that the employee was using the information to harass a woman she believed was having an affair with her husband.

The employee did not appear at the trial and thus did not offer any evidence in mitigation or explanation.*

The New York City Conflicts of Interest Board a $7,500 fine, as recommended by ALJ Lewis

* Courts have held that the employer may proceed with a disciplinary action even though the employee is not present. The hearing may proceed and the employee tried in absentia provided the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate. The charging party has the burden of proving the allegations notwithstanding the absence of the individual from the proceeding.

Governor Cuomo and CSEA President Danny Donohue announce CSEA Collective Bargaining Agreement ratification

Governor Cuomo and CSEA President Danny Donohue announce CSEA Collective Bargaining Agreement ratification

Office of the Governor

Noting that the new five-year contract avoids the need for broad layoffs while meeting tough fiscal demands, Governor Andrew M. Cuomo and CSEA President Danny Donohue today announced that members of the Civil Service Employees Association (CSEA) have ratified the five year labor contract agreed to in June by CSEA leadership and the Cuomo administration. The agreement marks a milestone accomplishment for collective bargaining and labor-management cooperation in New York State.

The contract includes provisions to keep CSEA-represented state employees on the job delivering essential services to New Yorkers. The new contract freezes base wages for the first three years, and then allows for retention payments – totaling $1,000 – as well as salary increases in each of the last two years. It also calls for a redesign of the employee health care contribution and benefit system.

The terms of the agreement will take effect immediately as the State Legislature already approved the agreement contingent on the CSEA ratification.*

Key elements of the Collective Bargaining Agreement

Base Wages: Under the five-year agreement, there will be no general salary increase in Fiscal Year 2011-12; 2012-13; 2013-14. Employees will receive a 2 percent increase in 2014-15 and 2015-16.

2011-12	2012-13	2013-14	2014-15	2015-16
0%	0%	0%	2%	2%

Health Care System Redesign: The agreement includes a series of reforms in the employee health care system. If adopted by all bargaining units, these reforms would save $1.27 billion. The components of the health system redesign are:

Health Care Contributions: The agreement includes substantial changes to employee health care contributions bringing public employee benefits more in line with the private sector. The agreement reflects a two percent increase in contributions for Grade 9 employees and below, and a six percent increase for Grade 10 employees and above. (Under the agreement, for example, the state will pay 69 percent of family coverage for a Grade 10 employee and above, and the employee will pay 31 percent. The prior split was 75 percent state/25 percent employee. For individual coverage, a Grade 10 employee and above will pay 16 percent and the state share will be 84 percent. The prior split was 10 percent employee/90 percent state).

Health Care Opt Out: For the first time, the state is offering an opt-out option. Health care premiums cost $16,600 for family coverage and $7300 for individual coverage. Employees electing to opt out of the health insurance program must provide proof of alternative coverage and will receive $1000 or $3000 for the cessation of individual or family coverage, respectively.

Health Benefit Redesign: The health benefit plan system of co-pays, deductibles, and programs has been redesigned to encourage healthy choices and control costs of pharmaceutical products. For example, for the first time the plan will cover the use of nurse practitioners and "minute clinics" and encourage employees to use these services when appropriate instead of hospital emergency rooms.

Deficit Reduction Leave: Under the agreement, employees will take a five day unpaid deficit reduction leave during fiscal year 2011-12 and four days unpaid leave during fiscal year 2012-13. The value of the days taken not worked will be deducted from employee pay over the remaining pay periods equally during the fiscal year in which they are taken. Employees will be repaid the value of the 4 days from 2012-13 in equal installments starting at the end of the contract term.

Performance advances, longevity and retention payments: Performance advances and longevity payments will continue to be in effect. Current employees who remain active through 2013 will earn a onetime retention payment of $775 in 2013 and $225 in 2014 in recognition of working without a wage increase for three years.

Patient Abuse Reforms: Both CSEA and the State agree that the system in place for investigating allegations of abuse of patients at state facilities does not adequately protect our most vulnerable population in state care. While CSEA employees are dedicated caretakers, allegations of abuse must be dealt with thoroughly. Under the new contract, the State and CSEA will take a number of steps to improve the quality of care, including creating a completely new Select Panel on Patient Abuse with A-list arbitrators and creating a table of penalties for increasingly severe acts of misconduct, along with a number of other reforms.

Review of Temporary Employees: The State and CSEA will form a joint committee to review the use of temporary employees and contractors and make recommendations to the Division of Budget and Department of Civil Service.

Layoff Protection: CSEA employees will receive broad layoff protection for fiscal year 2011-12 and 2012-13 arising from the $450 million budget gap. Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the State's fiscal circumstances are not covered by this limitation.

* Civil Service Law §204-a.provides, in pertinent part, that a collective bargaining agreements between public employers and employee organizations include the following provision:

1. Any written agreement between a public employer and an employee organization determining the terms and conditions of employment of public employees shall contain the following notice in type not smaller than the largest type used elsewhere in such agreement: "It is agreed by and between the parties that any provision of this agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval [emphasis supplied].

Governor Cuomo and CSEA President Danny Donohue announce CSEA Collective Bargaining Agreement ratification

Governor Cuomo and CSEA President Danny Donohue announce CSEA Collective Bargaining Agreement ratification

Office of the Governor

Noting that the new five-year contract avoids the need for broad layoffs while meeting tough fiscal demands, Governor Andrew M. Cuomo and CSEA President Danny Donohue today announced that members of the Civil Service Employees Association (CSEA) have ratified the five year labor contract agreed to in June by CSEA leadership and the Cuomo administration. The agreement marks a milestone accomplishment for collective bargaining and labor-management cooperation in New York State.

The contract includes provisions to keep CSEA-represented state employees on the job delivering essential services to New Yorkers. The new contract freezes base wages for the first three years, and then allows for retention payments – totaling $1,000 – as well as salary increases in each of the last two years. It also calls for a redesign of the employee health care contribution and benefit system.

The terms of the agreement will take effect immediately as the State Legislature already approved the agreement contingent on the CSEA ratification.*

Key elements of the Collective Bargaining Agreement

Base Wages: Under the five-year agreement, there will be no general salary increase in Fiscal Year 2011-12; 2012-13; 2013-14. Employees will receive a 2 percent increase in 2014-15 and 2015-16.

2011-12	2012-13	2013-14	2014-15	2015-16
0%	0%	0%	2%	2%

Health Care System Redesign: The agreement includes a series of reforms in the employee health care system. If adopted by all bargaining units, these reforms would save $1.27 billion. The components of the health system redesign are:

Health Care Contributions: The agreement includes substantial changes to employee health care contributions bringing public employee benefits more in line with the private sector. The agreement reflects a two percent increase in contributions for Grade 9 employees and below, and a six percent increase for Grade 10 employees and above. (Under the agreement, for example, the state will pay 69 percent of family coverage for a Grade 10 employee and above, and the employee will pay 31 percent. The prior split was 75 percent state/25 percent employee. For individual coverage, a Grade 10 employee and above will pay 16 percent and the state share will be 84 percent. The prior split was 10 percent employee/90 percent state).

Health Care Opt Out: For the first time, the state is offering an opt-out option. Health care premiums cost $16,600 for family coverage and $7300 for individual coverage. Employees electing to opt out of the health insurance program must provide proof of alternative coverage and will receive $1000 or $3000 for the cessation of individual or family coverage, respectively.

Health Benefit Redesign: The health benefit plan system of co-pays, deductibles, and programs has been redesigned to encourage healthy choices and control costs of pharmaceutical products. For example, for the first time the plan will cover the use of nurse practitioners and "minute clinics" and encourage employees to use these services when appropriate instead of hospital emergency rooms.

Deficit Reduction Leave: Under the agreement, employees will take a five day unpaid deficit reduction leave during fiscal year 2011-12 and four days unpaid leave during fiscal year 2012-13. The value of the days taken not worked will be deducted from employee pay over the remaining pay periods equally during the fiscal year in which they are taken. Employees will be repaid the value of the 4 days from 2012-13 in equal installments starting at the end of the contract term.

Performance advances, longevity and retention payments: Performance advances and longevity payments will continue to be in effect. Current employees who remain active through 2013 will earn a onetime retention payment of $775 in 2013 and $225 in 2014 in recognition of working without a wage increase for three years.

Patient Abuse Reforms: Both CSEA and the State agree that the system in place for investigating allegations of abuse of patients at state facilities does not adequately protect our most vulnerable population in state care. While CSEA employees are dedicated caretakers, allegations of abuse must be dealt with thoroughly. Under the new contract, the State and CSEA will take a number of steps to improve the quality of care, including creating a completely new Select Panel on Patient Abuse with A-list arbitrators and creating a table of penalties for increasingly severe acts of misconduct, along with a number of other reforms.

Review of Temporary Employees: The State and CSEA will form a joint committee to review the use of temporary employees and contractors and make recommendations to the Division of Budget and Department of Civil Service.

Layoff Protection: CSEA employees will receive broad layoff protection for fiscal year 2011-12 and 2012-13 arising from the $450 million budget gap. Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the State's fiscal circumstances are not covered by this limitation.

* Civil Service Law §204-a.provides, in pertinent part, that a collective bargaining agreements between public employers and employee organizations include the following provision:

1. Any written agreement between a public employer and an employee organization determining the terms and conditions of employment of public employees shall contain the following notice in type not smaller than the largest type used elsewhere in such agreement: "It is agreed by and between the parties that any provision of this agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval [emphasis supplied].