Determining the existence of an employer-employee relationship for the purposes of eligibility of Unemployment Insurance benefits and the payment of required employer contributions

Determining the existence of an employer-employee relationship for the purposes of eligibility of Unemployment Insurance benefits and the payment of required employer contributions

2014 NY Slip Op 04544, Appellate Division, Third Department

The school district [District] challenged two decisions issued by the Unemployment Insurance Appeals Board holding that::

1. The District was the employer of a claimant for Unemployment Insurance benefits; and

2. The District was required to pay additional unemployment insurance contributions based on remuneration paid to the claimant and other individuals similarly situated.

The Appellate Division affirmed the Board’s determination, explaining that “Whether there exists an employee-employer relationship is a factual question to be resolved by the Board and we will not disturb its determination when it is supported by substantial evidence in the record.”

The court pointed out that the Board’s determination regarding an employer-employee relationship “rests not on one single factor, but consideration is given to whether control was exercised over the results or the means used to achieve those results, with the latter factor deemed more important.”

In this instance the claimant testified that, among other things, she was provided with a school district computer for use in coordinating the District's program, maintained a file cabinet and mailbox at the school, was given use of the photocopier and postage machine, and had access to school district transportation. Claimant also testified that she performed most of her work at the school, including some tasks that were required to be performed there.

Claimant further testified the District’s Superintendent had disapproved classes, directed claimant to hire a specific teacher against her wishes, had final approval over her canceling classes; and that claimant was required to seek approval before assigning herself to teach a class and that request had been denied.

In addition, both the claimant and the Superintendent testified that, in addition to claimant’s duties supervising the school district’s adult education program, she also provided office help and performed general records management duties for the school district.

The Appellate Division ruled that that notwithstanding evidence that might support a different conclusion, it found that substantial evidence supported the Board's decision. Accordingly the Board’s rulings were affirmed, requiring the school district to make the appropriate additional Unemployment Insurance contributions based on remuneration paid to the claimant and the remuneration it had paid to others similarly situated and, in addition, sustained the Board’s order requiring payments of Unemployment Insurance benefits to the claimant.

.

Special duty must be demonstrated in order to recover for an alleged negligent performance of a governmental function

Special duty must be demonstrated in order to recover for an alleged negligent performance of a governmental function

2014 NY Slip Op 04464, Appellate Division, Second Department

While employed by the New York City Department of Education (Department) as a school social worker [Worker] allegedly was injured when two kindergarten students collided with her in a school hallway. Worker commenced an action against the Department and the City of New York, alleging negligent supervision.

The Supreme Court granted Department's motion for summary judgment dismissing the complaint. The Appellate Division sustained the lower court’s ruling. The court explained that a school district may not be held liable for the negligent performance of its governmental function of supervising children in its charge, “at least in the absence of a special duty to the person injured.” Under the doctrine that a school district acts in loco parentis with respect to its minor students, a school district owes a "special duty" to the students themselves in contrast to owing a special duty to teachers, administrators, and other adults on or off of school premises. Thus a school district may be held liable to a student when it breaches that duty, so long as all other necessary elements of a negligence cause of action are established.

In contrast, this special duty owed to the students themselves does not, as a general matter, carry over to teachers, administrators, and other adults on or off of school premises.

Here, said the Appellate Division, the Department established  prima facie, that it did not owe the Worker a special duty and Worker did not raise a triable issue of fact.

Under the circumstances, it appears that Worker would be able to claim Workers’ Compensation benefits if otherwise applicable with respect to her alleged injury but has no cause of action for any alleged negligent supervision of the students on the part of the Department.
.

Unblemished work record not sufficient to mitigate imposing termination as the disciplinary penalty for the employee’s misconduct under the circumstances

Unblemished work record not sufficient to mitigate imposing termination as the disciplinary penalty for the employee’s misconduct under the circumstances

2014 NY Slip Op 04252, Appellate Division, First Department

The Appellate Division, finding that the disciplinary determinations were supported by substantial evidence and the penalty imposed by the appointing authority, termination of employment, did not shock its sense of fairness, dismissed the appeal of the petitioner.

The court said that the record demonstrated that in addition to the petitioner's misconduct in purchasing cocaine while on duty, he had, on two separate occasions, carried out his job responsibilities in a manner that involved health and safety risks, and that, in fact, resulted in actual physical injury to others.

Although the petitioner “had an otherwise unblemished work history” the Appellate Division indicated that this did not constitute “mitigation” sufficient to warrant a different determination.

____________________________

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://booklocker.com/books/7401.html

____________________________

Employer provided retirees with the health benefits to which they were entitled upon retirement under the collective bargaining agreement

Employer provided retirees with the health benefits to which they were entitled upon retirement under the collective bargaining agreement

Non-instruction Adm'rs & Supervisors Retirees Assn. v School Dist. of City of Niagara Falls, 2014 NY Slip Op 04299, Appellate Division, Fourth Department

18 retired employees of School District of City of Niagara Falls (District), and their retirees association commenced a breach of contract/declaratory judgment action seeking a declaration that the individual retirees are entitled to the health insurance benefits provided in the collective bargaining agreement (CBA) in effect at the time each individual retired.

Supreme Court granted the District's motion to dismiss the complaint and the retirees appealed. The Appellate Division modified the Supreme Court’s ruling in part, declaring that the individual retirees are not entitled to the health insurance coverage provided in the CBA in effect at the time each individual retired.

The Appellate Division agreed with the District that the language in the CBAs at issue is clear and unambiguous and thus that extrinsic evidence may not be considered.

The contract provision at issue stated: The District "shall assume the full cost of health insurance coverage and major medical . . . for each employee in the negotiating unit covered by this Agreement lawfully retiring in the future." The CBAs further state that "[t]he coverage so provided shall be the same type that the employee would have had if he/she had continued employment.When the retiree reaches his/her sixty-fifth (65th) birthday and qualifies for Medicare . . . , the type of health insurance and major medical coverage shall be changed to cover his/her new circumstances" (emphasis by the court).

The retirees contended that this provision provided that retirees are "entitled to the benefits they received at the time they each retired" (emphasis added by the court). Such an interpretation, said the court, “contravenes the plain meaning of the contractual language.”

The Appellate Division concluded that the plain meaning of the language set out in the collective bargaining agreement is that, upon retirement, a retiree will receive health insurance coverage of the same type received by active employees at that point in time. Thus, if health insurance for active employees changes over the years based on rising health care costs and successive collective bargaining agreements, the health insurance provided to retirees also will change because the health insurance of the retirees would be subject to the same changes if they had continued employment.

The Appellate Division explained that “Rather than fixing retiree coverage as of the date of retirement, the use of the word "would," a conditional verb indicating the consequence of an imagined or theoretical event or situation, expressly contemplates that the coverage provided to retirees will mirror the coverage provided to active employees.”

A retiree of the District is therefore entitled to the type of health insurance that he or she would have had if the retiree had never left the District's employ, i.e., the health insurance coverage negotiated by the active employees and the District at any given point in time 

As the retirees conceded that the individual retirees receive the same health insurance coverage as active employee, the Appellate Division concluded that they were receiving the health care benefits to which they were contractually entitled.
.

.

New York State Comptroller Thomas P. DiNapoli announced today that his office has identified more than $5 million in unclaimed funds for local governments across the state.

New York State Comptroller Thomas P. DiNapoli announced today that his office has identified more than $5 million in unclaimed funds for local governments across the state.

Source: NEWS From the Office of the New York State Comptroller Thomas P. DiNapoli

Posted June 18, 2014.

After reaching out and alerting officials from counties, cities, towns and villages of this lost money, DiNapoli’s office has returned more than $1.5 million so far. DiNapoli’s office oversees the state’s 31 million unclaimed funds accounts, valued at more than $13 billion.

“Every dollar owed to local governments should be collected and put to good use to help provide essential services for New Yorkers and to relieve the burden on taxpayers around the state,” DiNapoli said. “My office has returned more than $1.5 million in unclaimed funds to local governments in the last few weeks, but $3.5 million is still waiting to be claimed. I encourage local government officials to work with my office so that we can return the money as soon as possible.”

DiNapoli’s office identified nearly 10,000 unclaimed funds accounts valued at $5,023,246 by matching the names of 1,600 local governments against the state’s unclaimed funds database. The search found 6,592 accounts valued at $3.8 million owed to counties (including New York City’s five boroughs), 800 accounts valued at $317,232 owed to cities, 1,552 accounts valued at $636,232 owed to towns and 798 accounts valued at $262,908 owed to villages. 

Representatives from DiNapoli’s office sent letters to financial officers of local governments that appear in the unclaimed funds database and asked them to confirm ownership in order to process the claims and return the money. Ownership is verified by demonstrating a connection to the address or the account associated with the funds. 

Click hereto view a chart showing the number of outstanding accounts in the name of local governments, and the values, by region.

It often requires a bit of imagination to find an entity as the names reported in Comptroller's listing may differ substantially from the agency's or organization's "official name" as the example for “Board of Education” listed 23 jurisdictions while Bd of Ed listed 13 districts and high school listed 29 names.

Using generic names such as the following produced the number of  "hits" indicated:

County of                    108

County Clerk             81

Town of                       411

Town Clerk                 2

Village of                    165

Village Clerk              1

Police Dept                 4

SUNY                          187

BOCES                       31

Central School             8

CSD                            13

Union Free School      5

Employee organizations reported by the Comptroller include the following

Faculty Asso               3

CSEA Local                6

PEF                        6

State and local governments and other organizations can search the Comptroller's site via the “Search for Organization” link on the Office of Unclaimed Funds’ website or by calling the call center toll-free at 1-800-221-9311.

Alternative disciplinary procedures

Alternative disciplinary procedures

2014 NY Slip Op 04293, Appellate Division, Fourth Department, Motion for leave to appeal granted, Motion No: 2013-804, 2013 NY Slip Op 88892. 

A tenured teacher [Teacher] filed a petition in Supreme Court pursuant to CPLR Article 78 seeking a court order annulling two disciplinary actions taken against her by the school district that resulted in her being suspended without pay for two days with respect to one disciplinary action and suspended for five days without pay for the other.

The Appellate Division held that Supreme Court erred in denying Teacher’s petition to annul the school district's actions, explaining that Teacher “was entitled to choose whether to be disciplined under the procedures set forth in the [collective bargaining agreement] or those set forth in [Education Law §] 3020-a," as the school district incorrectly denied Teacher's written request for a §3020-a hearing," citing it’s earlier ruling in Kilduff v Rochester City School District, 107 AD3d 1536.

This will not be the first time that the Court of Appeals will be asked to address the issue of an employee choosing between alternatives disciplinary procedures. In Antinore v State, 40 NY2d 6, the Court sustained a ruling by the Appellate Division* holding that a union could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure as long as the alternate disciplinary procedure provided administrative due process protections at least equivalent to those provided by the statutory procedure.

The initial collective bargaining agreements negotiated by the State as an employer and the Civil Service Employees Association with respect to employees in negotiating units represented by CSEA, provided that an individual in the negotiating unit served with administrative disciplinary charges could elect either the “contract disciplinary procedure,” whereby the charges would be heard by an arbitrator, or, in the alternative, elect to have the matter considered pursuant to the relevant statutory disciplinary procedure, in this instance Civil Service Law §75.

The issue in Antinore: Antinore initially elected the contract disciplinary procedure and when he was found guilty by the arbitrator, claimed that he was now entitled to administrative due process which required that he now be given another disciplinary hearing pursuant to Civil Service Law §75. The Appellate Division rejected Antinore’s theory, which decision was sustained by the Court of Appeals, holding that if the negotiated alternative to the §75 disciplinary procedure afforded the accused individual the at least equivalent administrative due process, his or her Constitutional right to due process was satisfied.

* Donald Antinore v. State New York et al, 49 A.D.2d 6.

______________________________

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

______________________________

.