The Commissioner of Education to determine if two positions are sufficiently similar within the meaning of Education Law §2510 in the first instance

The Commissioner of Education to determine if two positions are sufficiently similar within the meaning of Education Law §2510 in the first instance
Matter of Alden Cent. Sch. Dist. (Alden Cent. Schools Administrators' Assn.), 2014 NY Slip Op 02185, Appellate Division, Fourth Department

The school district filed an Article 75 petition seeking to stay arbitration of a grievance challenging the level of the compensation paid to an individual represented by the union who had been laid off from her position of principal of an elementary school and thereafter appointed from the preferred list to serve as an assistant principal at a middle school at a lower salary. The union filed a cross-petition seeking to compel arbitration of the grievance, contending that the educator’s new position was “sufficiently ‘similar’ within the meaning of the Education Law §2510(3)(a) such that she is entitled to the same level of pay.”

Supreme Court denied the school district’s petition for a stay of arbitration. The Appellate Division, however, reversed the lower court’s ruling and granted the district’s petition to stay the arbitration of the grievance.

Noting that it is well settled that, in deciding an application to stay or compel arbitration under CPLR §7503 the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim, the Appellate Division explained that in making the threshold determination of arbitrability, the court applies a two-part test.

A court first determines whether "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance. If no prohibition exists, [the court then determines] whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement."

In this instance the Appellate Division said that it agreed with the school district that the Commissioner of Education has primary jurisdiction over the parties' dispute, and that arbitration is therefore prohibited by public policy.

The court said that the Commissioner of Education has the specialized knowledge and expertise to resolve the factual issue of whether the former position and the new position are similar within the meaning of Education Law §2510(3)(a). Accordingly, concluded the Appellate Division “the Commissioner of Education should ‘resolve, in the first instance’ the issue of fact whether two positions are sufficiently similar under Education Law §2510.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_02185.htm

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Application to stay or adjourn a disciplinary hearing

Application to stay or adjourn a disciplinary hearing
OATH Index No. 503/14

A New York City firefighter’s application to stay or adjourn disciplinary hearing pending the outcome of a state court proceeding was denied by a New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge 

Judge Faye Lewis explained that the existence of a pending civil action does not generally provide a basis for a stay of an administrative disciplinary proceeding and the issues raised in the disciplinary proceeding were not preclusive of the issues raised in the Notice of Claim filed by respondent in state court.

In addition, the ALJ commented that the firefighter’s application demanding that the employer produce witnesses and document was denied in large part because it was based upon the firefighter’s defense of selective enforcement, which is not a proper defense in an administrative proceeding but can be asserted only upon judicial review of an adverse decision. 

ALJ Lewis also denied the firefigher’s motion to suppress statements made at investigatory interview on the ground that the questioning went beyond the scope of the interview notice. Judge Lewis noted that the firefighter was represented by counsel at the interview and it does not appear that his statements were made involuntarily. Further, noted the ALJ, "if the questioning violated [firefighter's] contract, the remedy would be to file a grievance, not suppression. 

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/14-503md.pdf

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The positions of village clerk/treasurer and village court clerk when filled by the same individual are incompatible

The positions of village clerk/treasurer and village court clerk when filled by the same individual are incompatible
Informal Opinions of the Attorney General 2014-1

This opinion indicates that typically a village court clerk transmits certain funds to the village treasurer, and the a village treasurer maintains the funds and transfers some portion of them to the county and State.

Accordingly, the two officials serve as a fiscal check on each other and a safeguard for these funds.

In this instance, said the Attorney General, one person serves as both village treasurer and village court clerk. In the opinion of the Attorney General performing such a dual role would compromise this neccessary fiscal check. He advised that in his view the duties of the positions therefore conflict and the positions are incompatible.

The opinion's conclusion: One person may not perform the duties of both positions simultaneously, whether they are combined into one or the same person is appointed to both.

The opinion is posted on the Internet at:
http://www.ag.ny.gov/sites/default/files/opinion/2014-1_pw.pdf

Supplemental military leave benefits

Supplemental military leave benefits
I.D. No.CVS-14-14-00001-P

The New York State Department of Civil Service has proposed to amend 4 NYCRR 21.15 and 4 NYCRR 28-1.17, both of which provided supplemental military leave benefits to eligible officers and employees of the State as the employer. whereby the availability of supplemental military leave benefits for would be extended until December 31, 2014.

The text of proposed rule and any required statements and analyses may be obtained from Shirley LaPlante, NYS Department of Civil Service, Albany, NY 12239, (518) 473-6598. You may email Ms LaPlante at: shirley.laplante@cs.state.ny.us .

Data, views or arguments may be submitted to Ilene Lees, Counsel, NYS Department of Civil Service, Albany, NY 12239, (518) 473-2624 or they may be e-mailed to her at: ilene.lees@cs.state.ny.us

Public comment will be received until 45 days after publication of this notice in the State Reporter dated April 9, 2014.

Individual is required to make a timely demand for reinstatement following submission of his or her resignation allegedly made under duress

Individual is required to make a timely demand for reinstatement following submission of his or her resignation allegedly made under duress
2014 NY Slip Op 01905, Appellate Division, Fourth Department

Petitioner, a former police officer, filed a petition pursuant to CPLR Article 78 seeking to compel his former employer to reinstate him to his former position with back pay, alleging that although he had submitted his resignation, it was obtained under duress -- i.e., threats of criminal prosecution were made by City officials against him.* Thus, Petitioner argued, the resignation was invalid.

Supreme Court dismissed  Petitioner’s complaint on the ground that it was untimely, which ruling was affirmed by the Appellate Division.

The Appellate Division explained that "Where, as here, a public employee is discharged without a hearing, the four-month limitations period set forth in CPLR 217 begins to run when the employee's demand for reinstatement is refused." The court then observed that such a “demand must be made within a reasonable time after the right to make the demand occurs or . . . within a reasonable time after [Petitioner] becomes aware of the facts which give rise to his [or her] right of relief," noting that the four-month limitations period of CPLR article 78 proceedings has been "treat[ed] . . . as a measure of permissible delay in the making of the demand."

In this instance, said the court, Petitioner's right to demand reinstatement to his position arose, at the latest, when he received a letter from the District Attorney stating that he bore no civil or criminal responsibility for the acts of misconduct alleged against him, and that the matter would not be presented to the grand jury.

Petitioner, however, did not demand reinstatement to his position until approximately nine months later, well over the four-month guideline. The Appellate Division ruled that Supreme Court "it was [well] within [its] discretion to determine that Petitioner unreasonably delayed in making the demand."

* In Rychlick v Coughlin, 63 NY2d 643, the court said that the threat to file formal disciplinary charges if the employee did not resign does not constitute duress as it is not duress to threaten to do what one has the legal right to do.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01905.htm

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Treatment of Marriages of Same-Sex Couples for Retirement Plan Purposes

Treatment of Marriages of Same-Sex Couples for Retirement Plan Purposes

The IRS has issued Notice 2014-19, which provides guidance on how qualified retirement plans should treat the marriages of same-sex couples following the Supreme Court’s decision in United States v. Windsor. The Windsor decision invalidated Section 3 of the 1996 Defense of Marriage Act (DOMA) that barred married same-sex couples from being treated as married under federal law.

The notice:

• gives examples of Code requirements under which the marital status of the participants is relevant to the payment of benefits,
• provides guidance on how to satisfy those requirements in light of Windsor and Revenue Ruling 2013-17, and
• describes when retirement plans must be amended to comply with Windsor, Revenue Ruling 2013-17, and Notice 2014-19

Recognition of marriages of same-sex couples for tax purposes

Following the Windsor decision, the IRS issued Revenue Ruling 2013-17, which holds that married same-sex couples are now treated as married for all federal tax purposes where marriage is a factor, if the couple is lawfully married under the laws of one of the 50 states, the District of Columbia, a U.S. territory or a foreign jurisdiction. Notice 2014-19 gives additional guidance on how qualified retirement plans should treat the marriages of same-sex couples.

Plan amendments required with respect to plan provisions inconsistent with Windsor

• If its terms are inconsistent with Windsor or Revenue Ruling 2013-17, a retirement plan must be amended to comply with Windsor and Revenue Ruling 2013-17. For example, a plan must be amended if it defines “spouse” by reference to section 3 of DOMA, or only as a person of the opposite sex.
• Not all plans need to be amended in order to be in compliance. An amendment generally is not required if a plan’s terms are not inconsistent with Windsor or with Revenue Ruling 2013-17.
• Required amendments must be adopted by the later of December 31, 2014, or the applicable date under the IRS’ general amendment guidance for qualified retirement plans, Revenue Procedure 2007-44.

Optional amendments

• Plan sponsors may also, but are not required to, reflect the outcome of Windsor for periods prior to the date Windsor was decided.
• In such a case, a plan amendment is required.
• Such optional amendment must be adopted by the later of December 31, 2014, or the applicable date under Revenue Procedure 2007-44.

FAQs for more information
See the FAQs on the treatment of same-sex marriages for additional guidance, including:

• beneficiary designations in profit-sharing plans after Windsor,
• amendments that reflect the outcome of Windsor for periods before the decision was issued, and
• application of the outcome of Windsor to 403(b) plans.

Additional resources

• IRS News - For Same-Sex Couples and Certain Domestic Partners
• Revenue Ruling 2013-17 – treatment of same-sex marriage for federal tax purposes
• FAQs on treatment of same-sex marriage for retirement plans

New York State's Human Rights Law and the New York City's Human Rights Law are not identical

New York State's Human Rights Law and the New York City's Human Rights Law are not identical

2014 NY Slip Op 02098, Court of Appeals

Initially employed by the NYC Health and Hospitals Corporation [HHC] in 1979, Plaintiff was diagnosed with an occupational lung disease. In 2007, HHC terminated Plaintiff. About a year later Plaintiff filed a complaint pursuant to State Human Rights Law (SHRL) and the City Human Rights Law (CHRL) alleging HHC HC had unlawfully discriminated on the basis of his disability.

Supreme Court granted HHC motion seeking summary judgment, holding that Plaintiff could not, even with a reasonable accommodation, perform the essential functions of his job. The Appellate Division affirmed.

The Court of Appeals ruled that HHC was not entitled to summary judgment with respect to Plaintiff’s SHRL and CHRL claims, explaining that summary judgment in favor of an employer under SHRL or CHRL where the employer has failed to demonstrate that it responded to a disabled employee’s request for a particular accommodation by engaging in a good faith interactive process regarding the feasibility of that accommodation.

The Court of Appeals set out the following guidelines in its decision:

1. An employer's failure to consider the reasonableness of a proposed accommodation for a generally qualified employee's disability via a good faith interactive process precludes the employer from obtaining summary judgment in the action.

2. The State Human Rights Law and the City Human Rights Law set forth distinct legal standards for establishing the existence of a covered disability that can be reasonably accommodated.

3. These statutes generally preclude summary judgment in favor of an employer where the employer has failed to demonstrate that it responded to a disabled employee's request for a particular accommodation by engaging in a good faith interactive process regarding the feasibility of that accommodation.

4. An employee's complaint states a prima facie case of discrimination under both the State HRL and City HRL if the employee suffers from a statutorily defined disability and the disability caused the behavior for which the employee was terminated.

Turning from the summary judgment burden to the substance of the statutes at issue, the SHRL forbids employment discrimination on the basis of an employee's disability, and the CHRL provides even greater protection against disability-based discrimination.

As to SHRL:

1. Under the State HRL, if an employee has a physical impairment that prevents the employee from performing the core duties of his or her job even with a reasonable accommodation, the employee does not have a disability covered by the statute, and consequently, the employer is free to take adverse employment action against the employee based on that impairment.

2. If a reasonable accommodation would permit the employee to perform the essential functions of the employee's position, the employee has a "disability" within the meaning of the State statute, and the employer cannot disadvantage the employee based on that disability.

3. A "reasonable accommodation" for an employee's impairment is one which "permit[s] an employee with a disability to perform in a reasonable manner activities involved in the job" and does not impose an "undue hardship" on the employer's business.

4. A proper State HRL claim must be supported by substantiated allegations that, "'upon the provision of reasonable accommodations, [the employee] could perform the essential functions of [his or] her job,'" and the employee bears the burden of proof on this issue at trial.

5. The SHRL's definitions of "reasonable accommodation" and "disability" requires that, where the employee seeks a specific accommodation for his or her disability, the employer must give individualized consideration to that request and may not arbitrarily reject the employee's proposal without further inquiry.

6. At a trial on a State HRL claim, the plaintiff employee bears the burden of proving the existence of a reasonable accommodation that would have enabled the employee to perform the essential functions of his or her position

As to the CHRL:

1. The CHRL's definition of 'disability' does not include 'reasonable accommodation' or the ability to perform a job in a reasonable manner," but rather "defines 'disability' solely in terms of impairments."

2. The CHRL forbids employment discrimination against physically and mentally impaired individuals, and employers may raise the inability of disabled employees to "with reasonable accommodation, satisfy the essential requisites of the[ir] job[s]" only as an affirmative defense to a CHRL claim.

3. The CHRL places the burden on the employer to show the unavailability of any safe and reasonable accommodation and to show that any proposed accommodation would place an undue hardship on its business.

4. At trial on a CHRL claim, the employer does not automatically fail to establish the affirmative defense premised on the lack of any reasonable accommodation solely because it did not participate in an interactive process, though that failure poses a formidable obstacle to the employer's attempt to prove that no reasonable accommodation existed for the employee's disability

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02098.htm
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Employee discipline guidelines for public employers

Employee discipline guidelines for public employers

Source: posted by the Editorial Team of the NYMuniBlog

   

Harris Beach partner Edward A. Trevvett, Esq., recently presented a talk focusing on Employee Discipline – Process, Procedure & Off-Duty Misconduct to municipal officials at a New York Conference of Mayors (NYCOM) Personnel School held in Pittsford, New York.

The presentation discussed “just cause” standards, sound personnel practices, the importance of documentation, “notice documents,” performance appraisals, progressive disciplinary policy, investigations and off-duty misconduct, as well as due process and procedural requirements for public employers.

To view the material presented by Mr. Trevvett at the Personnel School, click on the link set out below:

View this document on Scribd

========================

Available from the Public Employment Law Press

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Complying with probationary evaluation procedures set out in the collective bargaining agreement

Complying with probationary evaluation procedures set out in the collective bargaining agreement
2014 NY Slip Op 01236, Appellate Division, Third Department

The relevant collective bargaining agreement (CBA) containing a broad arbitration clause and a grievance procedure providing that any unresolved grievance is subject to arbitration.

After a probationer received a series of negative evaluations, probationer's administrators recommended that the probationer be denied tenure. The union filed a grievance on the probationer's behalf challenging, among other things, whether the employer had complied with the probationary evaluation procedures provided for in the CBA.

The employer denied the grievance and terminated the probationer's employment. The union filed a demand for arbitration. In response, the employer initiated an action in Supreme Court seeking a stay of arbitration pursuant to CPLR §7503(b).

Supreme Court granted the employer's petition, concluding that the subject matter of the grievance was not arbitrable because it actually challenged the employer’s tenure decision — over which the parties agree that employer had sole discretion — and not the alleged failure to comply with the agreed-upon evaluation procedures.*

This, said the Appellate Division, was incorrect and the employer’s petition should have been denied.

The Appellate Division explained that the court's role in determining applications to stay arbitration is limited and, as relevant in this action, requires a determination of whether the parties have agreed to arbitrate the dispute at issue.

As the union asserted a violation of the evaluation procedures agreed to by the parties and included as part of the CBA, the Appellate Division concluded that there was a rational relationship between the subject of the grievance and the CBA. Thus, said the court, “The question of whether the employer violated these procedures "goes to the merits of the grievance, not to its arbitrability."  

In the words of the Appellate Division, "[T]he fact that the substantive clauses of the contract might not support the grievances . . . is irrelevant on the threshold question of arbitrability. It is for the arbitrator, and not the courts, to resolve any uncertainty concerning the substantive rights and obligations of the parties."

* In Cohoes City School District v Cohoes Teachers Association, 40 NY2d 774, the Court of Appeals ruled that "contractual provisions between a teachers association and a school district can provide procedural safeguards concerning the tenure decision without offending public policy [see, also, Matter of Clarkstown Central School District, 163 AD2d 670].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01236.htm

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An individual’s inconsistent statements to different parties can be deemed a willful false statement or misrepresentation

An individual’s inconsistent statements to different parties can be deemed a willful false statement or misrepresentation
2014 NY Slip Op 01805, Appellate Division, Third Department

A civilian employee, [Claimant] working at a state correctional facility was dismissed from his employment after he was arrested for attempting to smuggle contraband, hidden in his lunch pail, into the facility.

The Unemployment Insurance Appeal Board found, among other things, Claimant “engaged in disqualifying misconduct and made willful false statements to obtain benefits” and reduced his right to receive future benefits and assessed a recoverable overpayment of benefits.

The Claimant appealed the Board’s determination.

The Appellate Division affirmed the Board’s decision, explaining that "A 'willful' false statement or misrepresentation is one which was made knowingly, intentionally or deliberately, and criminal intent . . . need not be shown."

As to whether a willful false statement was made is a question of fact for the Board to resolve. The record showed that when Claimant was arrested, he told the police that he knew that items found in his lunch pail were considered contraband and he was aware of the employer's policy prohibited bringing contraband into the facility.

In contrast, Claimant told the Department of Labor's representative when questioned about his loss of employment that he was unaware of any wrongdoing on his part and had done nothing wrong.

Such inconsistent statements, said the Appellate Division, provide substantial evidence to support the Board's finding that claimant made willful false statements in an effort to obtain unemployment insurance benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01805.htm
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