Android apps for attorneys

Android apps for attorneys

Nicole Black, an attorney based in Rochester, New York, has posted an article on her LawBlog, Sui Generis, that focuses on the latest Android apps for attorneys. To access the item, click on:

http://nylawblog.typepad.com/suigeneris/daily_recordlegal_currents_column/index.html

Ms. Black is also the author of a number of books including Cloud Computing for Lawyers and has co-authored Social Media for Lawyers with Carolyn Elefant, Esq.

The shifting burdens of going forward in actions involving alleged unlawful discrimination

The shifting burdens of going forward in actions involving alleged unlawful discrimination

2013 NY Slip Op 03617, Appellate Division, First Department

A complainant alleging unlawful discrimination must set out a prima facie case of such discrimination, shifting the burden of going forward to the employer to demonstrate a nondiscriminatory reason for its action. If the employer can successfully demonstrate a nondiscriminatory reason for its decision, the burden shifts back to the complainant to show that the reasons given by the employer were pretextual in an effort to excuse its unlawful action.

In other words, once a prima facie case of alleged unlawful discrimination is rebutted by the employer with “legitimate, independent and nondiscriminatory reasons” for its decision, the burden of going forward shifts to the aggrieved individual to demonstrate that the explanation offered by the employer was mere subterfuge for its unlawful discriminatory actions. 

This decision addressing charges of alleged unlawful discrimination and charges of alleged unlawful retaliation illustrate the “shifting of the burden of going forward.”

According to the decision, the plaintiff had presented a prima facie case of “age-based discrimination” for his failure to be selected for employment as a teacher by the New York City Department of Education for its New York City Teaching Fellows program.

However, the Appellate Division dismissed his petition explaining that the Department of Education met its burden of proffering legitimate, nondiscriminatory reasons for failing to hire the plaintiff in it’s Teaching Fellows program by showing that the plaintiff had made “stereotyping statement” that parents in a particular ethnic group are more successful in communicating the importance of education to their children, resulting in superior academic performance in the course of his being interviewed to the position.

That done, the court said that the plaintiff had failed to show that Department's proffered reasons were pretexts for unlawful discrimination.

With respect to the plaintiff’s allegations of retaliation, the Appellate Division said that while he again had made out a prima facie case of retaliation, the Department had met its burden of proffering legitimate, nondiscriminatory reasons for declining to accept plaintiff into its SMART teaching certification program, including reciting the plaintiff's “expressed intention to focus his teaching energies on students ‘willing and interested’ in learning.”

Again, said the court, the plaintiff failed to show that Department's reasons were pretextual in an effort to justify its acts of unlawful discrimination.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_03617.htm

Ratification of the proposed contract for staff in the professional service of the State University of New York represented by United University Professions announced

Ratification of the proposed contract for staff in the professional service of the State University of New York represented by United University Professions announced

On June 4, 2013, Governor Andrew M. Cuomo and United University Professions (UUP) President Frederick Kowal announced the ratification of a collective bargaining agreement between the state and the union representing more than 35,000 SUNY employees in the professional service of the State University of New York.*

UUP members had been without a contract since 2011. The agreement won the approval of 77 percent of UUP members who cast ballots.

According to the State Budget Office, the agreement will save approximately $87 million in wages through a Deficit Reduction Program over the contract period. All changes to health benefits will save $99 million over the contract period.

Contract highlights:

· Zero percent General Salary Increases for the three years 2011-2013, and 2% General Salary Increase increases in 2014 and 2015.

· Deficit Reduction Program involving nine days.

· A two percentage point increase in the employee's health insurance premium contribution for employees earning less than $40,137, making the employee contribution 12% for individual coverage and 27% for dependent coverage.

· A six percentage point increase in the employee's health insurance premium contribution for employees earning $40,137 and above, making the employee contribution 16% for individual coverage and 31% for dependent coverage.

· Benefit design changes for use of out of network services in the Empire Plan, including deductible and coinsurance increases for out of network medical benefits.

· A health plan opt-out provision so employees can opt-out through a spouse/partner to a non-State health plan.

· Payments of $500, $500, and $250 to be awarded to employees by the Chancellor. UUP members receive no "step" increases or longevity payments but campus presidents may also make performance incentive lump sum payments of 0.5% annually (1% at end of the contract term).

* See Subdivision three of Section three hundred fifty-five-a of  the Education Law.

Misconduct conduct that results in the termination of employment may not necessarily constitute “disqualifying misconduct” for unemployment insurance benefit purposes

Misconduct conduct that results in the termination of employment may not necessarily constitute “disqualifying misconduct” for unemployment insurance benefit purposes
2013 NY Slip Op 03734, Appellate Division, Third Department

A Lieutenant with the Sheriff's Department was served with disciplinary charges pursuant to Civil Service Law §75 alleging misconduct, incompetence and insubordination.

One of misconduct charge resulted from an incident in which the Lieutenant was served with an order of protection obtained on ex parte* by his estranged wife. When two superior officers served the order of protection, which required that the Lieutenant surrender all firearms, he became upset, orally protested the surrender of his firearms and used profanity toward his superior officers. The Lieutenant eventually complied with the terms of the order of protection.

Found guilty of the disciplinary charged, the Lieutenant was terminated from his position. He challenged his termination but the Appellate Division sustained the penalty imposed [see 90 AD3d 1390).

At the time of his termination the Lieutenant applied for unemployment insurance benefits. Initially disqualified from receiving benefits on the ground that he lost his employment through misconduct, a Department of Labor Administrative Law Judge concluded otherwise after a hearing and awarded him unemployment insurance benefits.

Finding that the Lieutenant’s termination did not result from disqualifying misconduct, the Unemployment Insurance Appeal Board sustained the Administrative Law Judge’s ruling.

The Lieutenant’s former employer appealed the Board’s decision but the Appellate Division sustained the Board’s decision.

The court explained that as the Lieutenant “had a full and fair opportunity to litigate the issue of misconduct at the Civil Service Law §75 hearing,” the Board was correct in applying the Doctrine of Collateral Estoppel to the factual findings of the Hearing Officer. However, said the court, it was incumbent on the Board to draw its own conclusion as to whether such factual findings amounted to misconduct disqualifying the Lieutenant from receiving unemployment insurance benefits.

Significantly, said the Appellate Division, "[t]he same conduct that leads to a claimant being discharged for cause may not necessarily rise to the level of misconduct for unemployment insurance purposes," citing Matter of Wright [City of Syracuse—Commissioner of Labor], 101 AD3d 1198 and its decision will be sustained if supported by substantial evidence.

In this instance the Board found that although the Lieutenant had used vulgar and intemperate language toward his superior officers, it concluded that, given the context of his conduct, it was not so egregious as to disqualify him from receiving benefits. The Board relied on evidence of claimant's marital problems and his lack of knowledge of the order of protection prior to being served with it. Furthermore, the superior officers testified that they were not directly threatened by Lieutenant and that the Lieutenant fully complied with the terms of the order of protection by timely surrendering his firearms.

The Appellate Division dismissed the employer’s appeal, holding that “… substantial evidence supports the Board's finding that [the Lieutenant] did not engage in disqualifying misconduct, despite the existence of substantial evidence supporting the contrary conclusion.”.

* An ex parte proceeding is one in which only one side is present and the other side absent or unrepresented:  

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03734.htm