Employment of volunteers

Employment of volunteers

Source: The University of Pennsylvania Journal of Labor and Employment Law, Vol. 9, p. 147, 2006, NYLS Legal Studies Research Paper No. 06/07-19, by Mitchell H. Rubinstein, Esq.

One of the rare scholarly works that analyzes the rights of volunteers in "employment situations" is a paper prepared for the Journal of Labor and Employment Law by Mitchell H. Rubinstein entitled, Our Nation’s Forgotten Workers: The Unprotected Volunteers.

In this paper Mr. Rubinstein address such issues as whether volunteers actually should be treated as employees, should such individuals be deemed employees within the meaning of the Fair Labor Standards Act and the rights of such an individual to sue for alleged “volunteer related” sexual harassment.

Mr. Rubinstein suggest that a two-step analysis should be utilized to distinguish between volunteers and employees, noting that, in general, to be an employee the individual must (1) be hired which involves an examination of whether the individual receives some form of remuneration, and (2) have his or her work controlled by the employer.

The article may be downloaded from the Internet without charge and its posted at: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=493458

NYPPL will send readers a copy upon request. E-mail publications@nycap.rr.com Please type “Volunteers” as the subject.

Notice required before candidate is disqualified

Notice required before candidate is disqualified

Matter of Ferrine, 75 AD2d 669

Section 50.4 of the Civil Service Law requires notice of the reasons for the disqualification of a person by the Civil Service Department or Municipal Commission to be given to the candidate, together with an opportunity to give an explanation.

When the employee is not afforded the opportunity to submit facts in opposition to the disqualification, the dismissal was held unlawful and the employer was ordered to reinstate the employee with back salary.

Correction officers locked up for compulsory overtime

Correction officers locked up for compulsory overtime

Cacace v. Seniuk, 104 Misc. 2d 560

While somewhat a novel way to have overtime work performed, the Court in Cacace held that correction officers compelled to work overtime were not denied their constitutional rights. Although locked up in the jail, as they were during normal working hours, and denied the ability to leave without permission, such action was held to be within the power of management.

The fact that the employees had received overtime pay or compensatory time off for the overtime, together with a view that such a procedure was a reasonable and necessary limitation on the correction officers, was enough to support for the Court to hold that correction officers were not entitled to injunctive or declaratory relief.

The Court also found that section 161 of the Labor Law was not applicable to correction officers.

Unilateral changes in the work year

Unilateral changes in the work year

Public Employment Relations Board, Case U-4294

The unilateral reduction of the school district’s administrator’s work year from 11 to 10 months (but requiring the performance of essentially the same service) was held to be a violation of the district’s duty to negotiate (the administrators constituted a “negotiating unit”) and back pay and restoration of the 11-month work year was ordered by PERB (Case U-4144, 1980).

In contrast, a PERB hearing officer held that the unilateral change in a district’s work day for teachers from 8 am to 3 pm to 8:30 am to 3:30 pm following good faith bargaining to impasse on the issue was not a violation of the Taylor Law even though the impasse had not been resolved at the time of the change by the district.

The decision in United States v Skilling does not preclude retrial of individual earlier found guilty of certain charges notwithstanding the vacating of the convictions

The decision in United States v Skilling does not preclude retrial of individual earlier found guilty of certain charges notwithstanding the vacating of the convictions 

United States v Bruno, CA 2^nd Circuit, Docket 10-1885

The former Majority Leader of the New York State Senate, Joseph Bruno, appealed his conviction of honest services mail fraud, [18 U.S.C. §§1341 and 1346] arising from his alleged failure to disclose conflicts of interest related to his receipt of substantial payments from individuals seeking to do business with the State. 

A the jury had convicted Bruno of two counts of honest services fraud (Counts Four and Eight), acquitted him of five counts (Counts One, Two, Five, Six, and Seven), and could not reach a verdict on one count (Count Three).

While Bruno’s appeal was pending, the Supreme Court decided United States v. Skilling, 130 S. Ct. 2896, in which it held that 18 U.S.C. 1346, the honest services statute pursuant to which Bruno had been found guilty, criminalized only fraudulent schemes effectuated through bribes or kickbacks and did not criminalize mere failures to disclose conflicts of interest.

The Circuit Court of Appeals said that although Skilling required it to vacate Bruno’s conviction with respect to Count 4 and 8, he could be retried with respect to the allegations set out in Counts 4 and 8. According to the decision, the court’s review of the record convinced it “that the government adduced sufficient evidence under the Skilling standard,” such that double jeopardy* did not bar Bruno’s being retried on those two counts.

In addition, the court said that the Double Jeopardy Clause set out in the Fifth Amendment of the Constitution did not preclude a retrial on a charge that resulted in a hung jury, Count 3.**

The Circuit Court of Appeals remanded the matter to federal district court “for further proceedings.”

* The Fifth Amendment of the Constitution of the United States, in pertinent part, bars an individual being “for the same offence to be twice put in jeopardy of life or limb.”

** Count Three concerned certain checks allegedly mailed to Bruno in 2003 and 2004 pursuant to a series of consulting agreements.

The Bruno decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/18137ae1-7004-4b8c-90a9-b30f4c3579d8/1/doc/10-1885_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/18137ae1-7004-4b8c-90a9-b30f4c3579d8/1/hilite/

Uncertified union denied access to school mailboxes

Uncertified union denied access to school mailboxes

Public Employment Relations Board, Case U-3885

According to PERB, a public employer has not duty under the Taylor Law to give an unrecognized or uncertified union competing with the recognized or certified employee organization equal access to teachers or mailboxes for the purpose of soliciting members except when such contact is timely in connection with the appropriate challenge period. 

Absence deemed a resignation

Absence deemed a resignation

Matter of Johnson, 41 NY2d 106l

In Johnson the Court of Appeals held that the provisions of Section 5.3(d) of the (State) Civil Service Rules were invalid as being in conflict with Section 75 of the Civil Service Law as the rule permitted an unexplained absence of an employee for more than ten days to be deemed a resignation.

In contrast, the Court of Appeals has held that where there is a contract provision negotiated pursuant to the Taylor Law providing that an unauthorized leave constituted a resignation, the employee is bound by that provision. The collective bargaining agreement expressly provided that an unauthorized absence for ten consecutive workdays would be deemed to constitute a resignation.

The Court was unsympathetic with the employee’s claim to relief, pointing out the availability of the contract grievance machinery he failed to use. The Court also indicated that this decision was not in conflict with Johnson as the issue of the parallel provision in a contract was not reached in that case. The effect here is identical to earlier decisions holding that the union and employer can bargain for something that if provided by law, rule or regulation might be struck down as unconstitutional or unlawful. (Port Authority of New York and New Jersey v. Port Authority Police Benevolent Association, Inc.).

Termination pay permitted

Termination pay permitted

Op. St. Comp 642

The State Comptroller advised a school district that it may negotiate a contract provision with the teacher union involved providing for a lump sum termination payment upon resignation.

The provision in question apparently provided for such payment when a teacher having fifteen or more years of service resigned. However it would appear that such a payment could be authorized by the contract regardless of the amount of service, in an amount mutually agreed upon. The parties, of course, could provide for a “sliding scale” based on the number of years of service with the district at the time of resignation.

Use of volunteer workers by the State

Use of volunteer workers by the State

9 NYCRR 141.0

In addition to employment in State service in a position in the Classified Service or the Unclassified Service, an individual serving as a volunteer may be deemed to be an “employee” of the State for certain purposes.

9 NYCRR 141.0 authorizes the use of volunteer workers by the State, declaring that it is “the policy of the State that the use of volunteer workers be consistent with the needs and requirements of sound and orderly administration of State government." 9 NYCRR 141.0 further provides that "It is also the policy of the State that the protection of workmen's compensation coverage be provided to all volunteer workers donating their services to the State.”

However, the use of volunteer workers by a State Department or agency is subject to the prior approval of the Director of the Budget. [see 9 NYCRR 141.1.]

The application submitted to the Director of the Budget for approval to accept the services of volunteers is to include the reasons why the use of volunteer workers is necessary, what will be accomplished by using volunteer workers and an estimate of the number of volunteer workers required.

Significantly, Public Officers Law §17* covers such “approved” volunteers, providing for their defense and indemnification in any civil action or proceeding “in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his [or her] public employment or duties” including actions alleging unlawful discrimination within the meaning of 42 USC 1981 and 42 USC 1983.

The duty to provide for a defense, however, is not available to the individual “where such civil action or proceeding is brought by or on behalf of the State.”

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* Public Officers Law §17, in pertinent part, provides that “the term ‘employee’ shall mean … a volunteer expressly authorized to participate in a state-sponsored volunteer program …” Similarly, Public Officers Law §18, which provides for the “Defense and indemnification of officers and employees of public entities,” includes within its definition of the term “employee,” an individual serving as “a volunteer expressly authorized to participate in a publicly sponsored volunteer program.”

Public officer refused reimbursement for legal costs

Public officer refused reimbursement for legal costs

Corning v. Laurel Hollow, 48 NY2d 348

Although initially represented by the County Attorney’s Office, public officials being sued in their personal rather than an official capacity for an act performed in connection with official duties dismissed the attorney provided by the County and engaged a private attorney to represent them. When they later sought reimbursement for their legal fees and expenses (they won the case) payment was denied on the basis that it would constitute an unlawful gift of public monies.

The decision also suggests that as the dispute was “private” the providing of a public staff attorney might not be in order.

In a dissenting opinion, the view that the legal expenses but not the attorney fees were reimbursable was expressed but this distinction was rejected by the majority. The majority view was that in the absence of a statute authorizing the Village to provide for a defense, the State Constitution prohibited it from reimbursing the officials for any expense incurred in defending themselves when sued in a personal capacity.