Determining the back pay due an individual terminated from his or her employment upon reinstatement by court order

Determining the back pay due an individual terminated from his or her employment upon reinstatement by court order

Torpey v Town of Colonie, N.Y., 2013 NY Slip Op 04085, Appellate Division, Third Department

With respect to back pay to be awarded in the event a discharged employee is reinstated by action of a civil service commission or personnel officer or a court, prior to its amendment in 1985 Civil Service Law §§76 and 77 provided that the amount of back pay due an individual found to have been unlawfully terminated from his or her position was to be reduced by the amount of compensation he or she may have earned in any other employment or occupation following his or her termination, together with any unemployment insurance benefits he or she may have received during that period.

In 1985 §§76 and 77 of the Civil Service Law, which apply to certain employees in the classified service of a public employer, were amended [Chapter 851, Laws of 1985] and currently provide that an employee reinstated pursuant to either of these subdivisions is to receive the salary to which he or she would have otherwise been entitled, less the amount of any unemployment insurance benefit that he or she may have received during such period. The clause providing for a "reduction" in the amount to be paid for any compensation earned in other employment or occupation following his or her termination was eliminated.

The issue in Torpey: May the compensation due employees reinstated to their former positions in the classified service pursuant to a court order be “reduced by” their earnings in other employments during the period in question.

The employees involved had been terminated from their long-term employment with the Town of Colonie on the ground that they were public officers who were required to, but did not meet, the residency requirement set out in the Public Officers Law. Following their termination, they accepted other employment with the Town for which there was no residency requirement.

The employees then challenged their termination and asked Supreme Court to reinstate them to their former positions "with full back pay, benefits and emoluments of employment."

Supreme Court determined that the employees had been erroneously terminated, finding that the Town had not shown that they were public officers subject to the residency requirements. The court granted the employees’ petition, ruling that the employees were "entitled to be reinstated to their former positions and to all back pay and associated benefits to which they would have been entitled had they not been improperly terminated."

Subsequently a dispute arose between the employees and the Town regarding, among other things, the meaning of the court's directive that employees were entitled to "all back pay," i.e., whether the back pay awards was to be “reduced by” the employees' earnings while employed by the Town as laborers, as the Town claimed, or whether they were entitled to full back pay without any such offset, as the employees argued.

The employees then asked Supreme Court “to resettle and/or clarify the court's prior judgment regarding back pay.” Supreme Court denied their motion, finding it represented an improper attempt to amplify and expand upon the court's prior decision and the employees appealed.

The Appellate Division agreed with Supreme Court, concluding that the employees’ motion “was one to resettle and/or clarify Supreme Court's prior judgment regarding back pay.”  Such a motion, said the court, is designed "not for substantive changes [in, or to amplify a prior decision of, the court], but to correct errors or omissions in form, for clarification or to make the [judgment] conform more accurately to the decision.” Such motions rest on the inherent power of courts to "cure mistakes, defects and irregularities that do not affect substantial rights of [the] parties."

In this instance the Appellate Division decided that the employees’ motion in Supreme Court sought to amplify and substantively amend, not merely to clarify, Supreme Court's prior judgment relating to back pay, “by invoking for the first time Civil Service Law provisions* in support of their argument that the back pay award should not be offset by earnings as Town employees during the period in which they had been improperly terminated, points which should have been raised and argued before a determination was rendered on their petition.”

The Appellate Division’s rational: “Such an offset would directly affect the amount of back pay owed by the Town and, as such, would clearly have ‘alter[ed] [a] substantial right[] of the parties.’”

Holding that “Under established precedent, no appeal lies from the ‘denial of a motion to resettle [or clarify] a substantive portion of an order,'" the Appellate Division dismissed the employees’ appeal.

* Presumably the Appellate Division did not view the employees’ reinstatement by Supreme Court as being within the ambit of Civil Service Law §76.3 or  §77 and thus the provisions of neither §76.3 nor §77 were operative in this instance as a matter of law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04085.htm

Past practice found sufficient to trump the absence of language in the relevant collective bargaining agreements providing for the practice

Past practice found sufficient to trump the absence of language in the relevant collective bargaining agreements providing for the practice
Chenango Forks Cent. Sch. Dist. v New York State Pub. Empl. Relations Bd., 2013 NY Slip Op 04039, Court of Appeals

The Chenango Forks Central School District told its faculty and staff it was discontinuing its practice of reimbursing Medicare Part B premiums of retirees 65 years of age or older participating in the District’s health insurance plan due to the cost involved of providing that benefit.

Initially the School District had been reimbursing these premiums as required by its then healthcare insurance plan. In 1990 the Union representing the faculty and the staff and the District agreed upon a new health insurance plan. This new plan was set out in the relevant collective bargaining agreement (CBA).

Although the new plan did not require the District to reimburse the retirees for the Medicare Part B premiums they were paying, the District continued to provide this benefit to its retirees. The successor collective bargaining agreements subsequently negotiated by the parties were silent with respect to the District reimbursing retirees for their Medicare Part B premium.

In response to the letter the Union filed a contract grievance contending that the School District had violated the CBA by failing to negotiate cancellation of Medicare Part B premium reimbursement. Shortly thereafter it filed an improper practice charge with the New York State Public Employment Relations Board on essentially the same theory.

Consistent with PERB's policy of refraining from asserting jurisdiction over an issue in dispute that was pending arbitration “until a determination is made as to whether the parties' [CBA] provide[d] a source of right to the charging party," PERB’s Administrative Law Judge “conditionally dismissed the [Union's] improper practice charge, subject to a motion to reopen.”

The arbitrator ruled there was no language in the collective bargaining agreement that would require Chenango Fork to reimburse retirees' Medicare Part B premiums that they had paid. The arbitrator explained that with respect to historical practices of the District regarding its making reimbursing retirees for the Medicare Part B premium they had paid “such practices originated from the former [healthcare plan] and a now repealed statutory obligation on the part of the District, and once the statutory obligation was removed, the District made voluntary Medicare Part B reimbursement payments to retirees. The voluntariness of the District's conduct,* given the origin of the District's Medicare Part B reimbursements, does not contain sufficient evidence of a mutual understanding and agreement to establish a binding past practice" (emphasis in the original).

The Union then asked PERB to reopen the improper practice charge it had earlier filed. PERB's Administrative Law Judge granted the Union’s request, opining that because "the arbitrator found no [contractual] source of right to [the Union] with respect to the dispute at issue ..., [the Union was] not seeking to enforce an agreement in the context of the charge, and PERB [had] jurisdiction over the alleged failure to continue a non-contractual practice."

Based on facts stipulated by the parties and the testimony given at hearings, ultimately PERB held that the District had violated Civil Service Law §209-a (1) by circulating the memorandum advising its employee of the fact that the District was going to discontinue its reimbursing retirees for the premiums they paid for Medicare Part B and there existed a past practice of providing a benefit — “the promise to reimburse current employees' post-retirement Medicare Part B premiums — which is a mandatory subject of bargaining”

PERB noted that the test for establishing a binding past practice under the Taylor Law was set out in its decision in Matter of County of Nassau (24 PERB ¶ 3029 [1991]) where it ruled that the "practice was unequivocal and was continued uninterrupted for a period of time sufficient under the circumstances to create a reasonable expectation among the affected [bargaining] unit employees that the [practice] would continue.”. PERB also noted that "the expectation of the continuation of the practice is something that may be presumed from its duration with consideration of the specific circumstances under which the practice has existed" and denied the District’s exceptions to the Administrative Law Judge’s ruling.

The Court of Appeals sustained PERB’s determination, concluding that under the facts in this case “it was reasonable for PERB not to defer to the arbitrator [as the] identity of issues was lacking and, to the extent the arbitrator purported to determine there was no past practice within the meaning of the Taylor Law, he exceeded his authority and his finding was repugnant to that statute.”

* The District contended that its continuation of the reimbursement of its retirees for Medicare premiums was the result of an administrative oversight.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_04039.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending June 8, 2013 [Click on text highlighted in bold to access the full report]


DiNapoli Issues Report On Public—Private Partnerships

New York State Comptroller Thomas P. DiNapoli called for strong oversight provisions if New York broadens the authority of the state to enter into public—private partnership (P3) projects or goes forward with private financing of public projects. DiNapoli’s recommendations follow the release of a reportWednesday examining the benefits and problems that have plagued P3 projects elsewhere in the country.

DiNapoli To Audit Superstorm Sandy Payments By State Agencies

State Comptroller Thomas P. DiNapoli will examine payments made by the state in response to Superstorm Sandy to make sure state agencies received goods and services at the appropriate price.

DiNapoli: Elmira Showing Signs of Progress

The city of Elmira’s finances have improved in recent years due to higher rates of revenue growth and a concerted effort to control spending, according to a fiscal profile report issued last week by State Comptroller Thomas P. DiNapoli. The city, however, remains challenged by unemployment and poverty.

DiNapoli: Mayor’s FY 2014 City Budget is Balanced, but Substantial Risks Remain

New York City Mayor Michael Bloomberg’s proposed budget for the upcoming fiscal year is balanced, but challenges remain including the unknown cost of potential labor agreements and the likelihood of realizing anticipated revenue from the sale of new taxi medallions, according to an analysisof the city’s four—year financial plan released Wednesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: Niagara Falls Hampered by Budget Deficits

The city of Niagara Falls has a growing disparity between its revenues and expenditures, forcing city officials to use nearly $22 million of its rainy day funds for operating costs from 2009 through 2013, according to an auditissued Tuesday by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced Thursday that his office completed audits of:

the Allegany County Industrial Development Agency;

the City of Middletown;

the Village of Mount Morris;

the Village of Rockville Centre; and,

the Yaphank Fire District.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli announced Thursday that his office completed audits of:

the Bolton Central School District;

the Maine–Endwell Central School District;

the Plattsburgh City School District; and,

the Warwick Valley Central School District.

An individual seeking workers’ compensation benefits must show that any subsequent reduction in his or her earnings was related to his or her compensable injuries

An individual seeking workers’ compensation benefits must show that any subsequent reduction in his or her earnings was related to his or her compensable injuries

2013 NY Slip Op 03537, Appellate Division, Third Department

A school principal suffered work-related injuries to his ankle, knee and back. The principal filed a claim for workers' compensation benefits [the school district was self-insured] which was not controverted, but he did not begin to receive any such benefits as the school district continued to pay him his salary.

Some time later the principal received a letter from the school district notifying him that he had been denied tenure and he then submitted a letter of resignation, effective the last day of the school year. The principal never returned to work but subsequently secured a teaching position in Florida at a substantially reduced salary effective at the beginning the new school year.

The principal sought workers' compensation benefits as of the effective date of his resignation.  A Workers' Compensation Law Judge ruled that the principal “was entitled to lost earnings and reduced earnings payments" commencing June 30.

The Workers' Compensation Board, however, modified that determination, concluding that principal had “ceased working for reasons unrelated to his disability and failed to demonstrate that his reduction in earnings was causally related to his compensable injuries and, thus, he was not entitled to awards subsequent to June 30.”

The Appellate Division affirmed the Board’s ruling, explaining that when employment is lost due to factors other than a compensable injury, the claimant bears the burden of establishing that his or her disability contributed to any subsequent reduction in earnings.

In this case, said the court, substantial evidence supports the Board's threshold determination that the principal 's employment ended for reasons unrelated to his disability as he had testified that upon receiving the letter advising that he had been denied tenure, he resigned his position to avoid having the inevitable termination on his employment record. As his resignation letter gave no indication that his resignation was in any way related to his disabilities, it became the principal’s burden to demonstrate that any subsequent reduction in his earnings was due, at least in part, to his disability. This, said the court, he failed to show.

Another factor: the principal had also testified that during his job search subsequent to resignation he applied and interviewed for a school principal position that was no different than the job he performed for the school district nor did he inform that prospective employer — or any other potential employer during the course of his search — about any restrictions due to his disability. In addition, said the court, the principal indicated that it was rather difficult to secure a position in education in New York, which ultimately led him to accept a teaching position in Florida, where it was easier to obtain employment.

In the words of the Appellate Division: “Thus, claimant's own testimony established that his reduction in earnings was not caused, even in part, by his disability, but rather by other economic factors; thus, we decline to disturb the Board's decision.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03537.htm

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