Changing the method of testing employees for the use of illegal drugs constitutes a “procedure” that is a mandatory subject of collective bargaining

Changing the method of testing employees for the use of illegal drugs constitutes a “procedure” that is a mandatory subject of collective bargaining
City of New York v Patrolmen's Benevolent Assn. of the City of New York, Inc., 56 AD3d 70

On August 1, 2005, NYPD unilaterally discontinued using urinalysis as its preferred method of random drug screening of its police personnel in favor or using a type of hair follicle testing known as radioimmunoassay of hair (RIAH). The Detectives Endowment Association filed an improper practice petition with the New York City Office of Collective Bargaining (OCB) on behalf of itself, the Patrolmen's Benevolent Association and the Sergeants Benevolent Association (the unions) contending that by unilaterally changing the drug testing method, NYPD violated New York City Collective Bargaining Law §12-306(a)(4) (Administrative Code, Title 12, Chapter 3).

OCB granted the unions' petition, finding that NYPD violated New York City Collective Bargaining Law "by unilaterally changing drug testing procedures, a mandatory subject of bargaining." Although NYPD argued that probationary police officers were subject to hair follicle testing for illegal drugs, OCB said that "even if NYPD's procedures for hair testing are the same as applied to a subset of employees already subject to such testing, the expansion of the categories of employees to whom the procedures now are applied constitutes a unilateral change in drug screening procedures." The City appealed OCB’s ruling contending that OCB’s determination was arbitrary and capricious,

The Appellate Division, disagreed, rejecting the City of New York’s argument that its changing the method of random drug testing utilized by NYPD for the screening of police officers from urinalysis to hair analysis is exempt from collective bargaining because it involves the disciplinary authority of the Police Commissioner, as conferred by New York City Charter §434 and Administrative Code of the City of New York §14-115.

Pointing out that the Administrative Code provision gives the Commissioner's investigatory authority arises only after written charges have been preferred and reasonable notice of the alleged infraction has been given, the court concluded that “no persuasive policy reason has been advanced to require OCB to depart from its prior decisions, which have consistently found that routine drug screening procedures are a mandatory subject of collective bargaining.”

The Appellate Division said that the City attempted to avoid its obligation to engage in collective bargaining with respect to the methods used for the routine drug testing of NYPD members by extending the investigatory authority granted to the Commissioner beyond the context of formal disciplinary proceedings to which it is confined. It then reversed the judgment of the Supreme Court, New York County that had granted the City’s petition and annulled OCB’s determination and reinstated OCB's ruling on its finding that the City failed to negotiate concerning a mandatory subject of collective bargaining.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07798.htm

Continuation of employment upon the expiration of a contract of employment may not be automatic

Continuation of employment upon the expiration of a contract of employment may not be automatic
Goldman v White Plains Ctr. for Nursing Care, LLC, 11 NY3d 173

Some public employments, typically those involving employment in a position having academic rank at a public college or university [see, for example 4 NYCRR 335.10] or as a school superintendent or an associate school superintendent, [see, for example, Education Law §§1711(3) and 2507(1)], are controlled by employment contracts between the parties.

The issue to be resolved in the Goldman case was whether the expiration of a two-year employment contract gives rise to successive one-year implied “common law” contracts of employment when the employee continues working for the employer without a new agreement in place. In this instance the Court of Appeals concluded that Lorraine Goldman became an at-will employee at the end of the two-year period and did not enjoy any “successive one-year implied contract of employment with White Plains.

Goldman’s initial contract of employment, executed in 1990, provided that the parties would "enter into good faith negotiations . . . with respect to renewal of th[e] Agreement on mutually agreeable terms" no less than nine months before the contract was due to expire.” The agreement could be terminated by the mutual consent of the parties or "[b]y either party giving notice to the other at least six (6) months prior to the end of the Employment Period of its intention not to renew this Agreement." At expiration of the contract or termination of employment, the employer would "be released of any responsibility or obligation hereunder, except for payment of salary and benefits accrued to the effective date of such expiration or termination." Finally, the contract included a provision that stated it was the "entire Agreement and understanding" of the parties and could "not be changed, modified or amended, except by a writing signed by" Goldman and her then employer.

During the course of the two-year term, Goldman and her employer did not discuss renewal of the agreement and neither sent a notice of termination. After the contract expired on March 31, 1992, Goldman continued to serve as the facilities’ administrative director and received annual salary adjustments. However the facilities were purchased by White Plains Center for Nursing Care, LLC and NMC Acquisitions, LLC (White Plains) from Goldman’s initial employer in October 2004. In conjunction with that transaction, White Plains Center executed an assignment and assumption of contracts, which listed Goldman’s 1990 employment contract among the documents provided to the purchasers. Three months later, White Plains Center terminated Goldman's employment.

In deciding Goldman’s breach of contract action, the Appellate Division concluded that the application of an implied contractual arrangement after expiration of the two-year term was inconsistent with the express language of the original employment agreement. The Court of Appeals agreed, holding that “A fundamental tenet of contract law is that agreements are construed in accordance with the intent of the parties and the best evidence of the parties' intent is what they express in their written contract.”

Goldman’s contract provided that in the event the agreement was allowed to expire at the conclusion of the two-year term, her then employer would have no further obligations to her other than compensating her for accrued salary and benefits. Further, said the court, the contract “unambiguously indicate that the parties understood that the employment contract would end at the conclusion of the two-year period unless an extension was agreed upon.”

Rejecting Goldman’s argument that under “common law” she had a one-year implied contract on the same terms as set forth in the original agreement each year that her employment continued after the expiration of the written contract, the Court of Appeals held that “this contention conflicts with the well-established rule that, ‘absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party.’”

The court then pointed out that Goldman’s argument relies on a common-law rule that recognizes an inference that parties intend to renew an employment agreement for an additional year where the employee continues to work after expiration of an employment contract. In a footnote, the Court of Appeals explained that “The common law created a presumption of a new term of employment of only one year to avoid a statute of frauds problem.”

However, said the court, this common-law presumption — developed in the 19th century before the establishment of the employment-at-will doctrine — can be rebutted by demonstrating that the parties did not intend to allow a contract to renew automatically.

In this instance, said the court, Goldman’s employment became an at-will arrangement upon the expiration of the agreement under the terms of the contract itself on March 31, 1992 and thus White Plains was entitled to summary judgment dismissing the breach of contract claim.

The Court of Appeals then observed that “Parties to future contracts can avoid uncertainty regarding application of the common-law rule simply by specifying that continuation of the employment relationship after the expiration of the contractual period will result in either successive one-year extensions of employment or at-will employment status.”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07760.htm

Testing positive for alcohol at the workplace

Testing positive for alcohol at the workplace

OATH Index No. 1405/12

OATH Administrative Law Judge Tynia D. Richard recommended a 30-day suspension* for a sanitation worker who tested positive for alcohol in a random workplace test.

The employee contended that the positive test was caused by ingestion of herbal supplements that unbeknownst to him contained alcohol.  

Judge Richard found that there was no evidence that the amount of alcohol in the supplements was sufficient to trigger a positive breath test, particularly when the confirmatory test administered  22 minutes after the initial screen test also was positive. 

The decision is posted on the Internet at: 

Dep’t of Sanitation v. Anonymous (in PDF), OATH Index No. 1405/12

* The Commissioner imposes followup drug/alcohol testing in addition to the 30-day suspension.

Governor Cuomo signs legislation on public disclosure of teacher evaluations that protects teachers' right to privacy and parents' right to know

Governor Cuomo signs legislation on public disclosure of teacher evaluations that protects teachers' right to privacy and parents' right to know

Chapter 68 of the Law of 2012

On June 25, 2012 Governor Andrew M. Cuomo signed legislation that will require the public disclosure of teacher evaluation data. The Governor said that this new law, which takes effect July 1, 2012, “ensures that parents and the general public can assess how schools across New York are performing.”

According to the Governor, this new law requires school districts and BOCES to fully disclose their evaluation results to the public and require requires the State Education Department to post and make widely available important data that will allow the public to analyze and compare how schools are performing. School districts and BOCES will also be required to notify and fully disclose to parents and legal guardians the final specific ratings and composite evaluation scores of the teachers and principals to which their student is assigned.

The law amends §3012-c of the Education Law by adding a new subdivision, Subdivision 10, to read as follows:

10. Each school district and board of cooperative educational services shall fully disclose and release to the public and the department the final quality ratings and composite effectiveness scores from the annual professional performance reviews of its teachers and principals as provided in this subdivision.

 a. The commissioner shall fully disclose professional performance review data for teachers and principals in each school district and board of cooperative educational services on the department website and in any other manner to make such data widely available to the public. Such data shall be suitable for research, analysis and comparison of professional performance review data for teachers and principals. Such public disclosure shall include but not be limited to the final quality ratings and composite effectiveness scores by school district for principal evaluation data, by school building for teacher evaluation data and, within each district and school building, by class, subject and grade; final quality ratings and composite effectiveness scores by region, district wealth, district need category, student enrollment, type of school (i.e. elementary, middle and high school), student need (e.g., poverty level), and district spending; final quality ratings and composite effectiveness scores by the percentage or number of teachers and principals in each final quality rating category, moving to a higher rating category than the previous year, moving to a lower rating category than the previous year, and retained in each rating category; and data on tenure granting and denial based on the final quality rating categories.

b. Each school district and board of cooperative educational services shall fully disclose and release to the parents and legal guardians of a student the final quality rating and composite effectiveness score for each of the teachers and for the principal of the school building to which the student is assigned for the current school year upon the request of such parents and legal guardians. The governing body of each school district and board of cooperative educational services shall provide conspicuous notice to parents and legal guardians of the right to obtain such information. Parents and legal guardians may review and receive such data in any manner, including by phone or in person; shall receive an oral or written explanation of the composite effectiveness scoring ranges for final quality ratings; and be offered opportunities to understand such scores in the context of teacher evaluation and student performance. Reasonable efforts shall be made to verify that any such request is a bona fide request by a parent or guardian entitled to review and receive such data pursuant to this paragraph.

c. The department and each school district and board of cooperative educational services shall ensure that any release to the public of annual professional performance review data, or any other data that is used as a component of annual professional performance reviews, does not include personally identifying information for any teacher or principal, provided, however, that nothing shall impair the right of parents and legal guardians to review and receive the final quality rating and composite effectiveness score of individual teachers and principals as provided in paragraph b of this subdivision. Annual professional performance reviews of individual teachers and principals shall not be subject to disclosure pursuant to article six of the public officers law.

d. Nothing in this subdivision shall prohibit the department from collecting such data and materials from school districts and boards of cooperative educational services as is necessary to carry out its functions and duties, including its responsibilities related to the federal Race to the Top program.

Disagreement with a superior’s directive not a defense to disciplinary charges alleging insubordination

Disagreement with a superior’s directive not a defense to disciplinary charges alleging insubordination

OATH Index No. 196/12

OATH Administrative Law Judge Faye Lewis found that a correction officer had been insubordinate on two dates and recommended a 10-day suspension.

In the first instance, the employee refused to open a security gate when ordered to do so by a superior officer. He also he refused to relinquish his post to another officer when ordered.

The correction officer disagreed with the order to report to a different post, but ALJ Lewis found this was not a defense because respondent was required to follow direct orders. 

The decision is posted on the Internet at:  

Dep’t of Correction v. Joseph (in PDF)

The filing of a timely a notice of claim -- a “condition precedent” when suing a school district – must be pleaded in the complaint

The filing of a timely a notice of claim -- a “condition precedent” when suing a school district – must be pleaded in the complaint
Munro v Ossining Union Free School Dist., 55 AD3d 697

Dianne Munro was employed as the Purchasing and Accounts Payable Manager by Ossining Union Free School District. In April 2007 she commenced this action against the District under New York State's Human Rights Law (Executive Law §296) seeking to recover damages for alleged employment discrimination on the basis of race and sex.

The District filed a pre-answer motion to dismiss Munro’s petition on the grounds that the claims were barred by the statute of limitations (see Education Law §3813[2-b]) and that she had failed to timely serve a notice of claim (see Education Law §3813[1]). Munro opposed the District’s motion and cross-moved for permission to serve a late notice of claim. The Supreme Court granted the District's motion to dismiss the complaint and Munro’s motion to for leave to serve a late notice of claim. Munro appealed.

The Appellate Division first addressed the notice of claim issue, observing that an entity wishing to sue a school district for violations of the Human Rights Law must serve a notice of claim on the district within three months after accrual of the claim. Further, compliance with this requirement is a condition precedent to such a lawsuit and must be pleaded in the complaint.
In the event the entity has not served a timely notice of claim, if the one-year statute of limitations applicable to such actions has not run, the entity may seek permission to serve a late notice of claim in accordance with Education Law § 3813[2-a]).

A court, in determining whether, in its discretion, to grant such an application, must consider (1) whether the district had actual knowledge of the essential facts constituting the claim within the time required for service of a timely notice of claim or a reasonable time thereafter, (2) whether the claimant had a reasonable excuse for failing to serve a timely notice of claim, and (3) whether the school district would be substantially prejudiced in its defense on the merits if the application were to be granted.

Further, the statute requires that the court consider "in particular," the first factor, and, accordingly, that factor is entitled to the greatest weight, but none is determinative.
Here Munro argued that the District had actual knowledge of the essential facts constituting her claim because she allegedly reported various incidents. However, Munro did not provide any details about the substance of her alleged reports that would permit a record-based conclusion that the District was thereby put on notice of the essential facts underlying her current claims under the Human Rights Law.

Further, the Appellate Division said that Munro offered no excuse at all for failing to serve a timely notice of claim.

Accordingly, even if the District would not be prejudiced were the application to file a late notice of claim granted, the Supreme Court did not improvidently exercise its discretion in denying Munro leave to serve a late notice of claim.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07886.htm