Whistle blower’s failure to cite any specific law, rule, or regulation allegedly violated by the employer in the complaint not fatal to pleading a viable cause of action

Whistle blower’s failure to cite any specific law, rule, or regulation allegedly violated by the employer in the complaint not fatal to pleading a viable cause of action

2014 NY Slip Op 04889, Appellate Division, Second Department

In an action to recover damages for violation of Labor Law §740, the plaintiff [WB] appealed an order of the Supreme Court that granted the employer's motion to dismiss the complaint for “failure to state a cause of action.”

A cause of action based upon Labor Law §740, commonly known as the "whistleblower statute," is available "to an employee who discloses or threatens to disclose an employer activity or practice which (1) is in violation of a law, rule or regulation, and (2) creates a substantial and specific danger to the public health'"*

The Article 78 petition alleged that the plaintiff [WB] was terminated from her position after she complained to her superiors about certain conduct that the employer engaged in or tolerated. It further alleged that such conduct violated various laws or rules or regulations, and threatened public health.

Although WB’s complaint did not specify any particular law, rule or regulation that the employer allegedly violated, the Appellate Division said that it sufficiently identified the complained-of conduct by the employer and provided the required notice. Therefore, said the court, the failure to specify in the complaint any law, rule, or regulation was not fatal to pleading a viable cause of action pursuant to Labor Law §740.**

Accordingly, said the Appellate Division, that branch of the employer's motion to dismiss the complaint for failure to state a cause of action should have been denied by Supreme Court.

Reversing the Supreme Court’s ruling “on the law,” the Appellate Division denied the employer’s motion to dismiss WB’s complaint for failure to state a cause of action.

* §75-B.2(a) of the Civil Service Law provides, in pertinent part, “A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.

** On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences.

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The placement of an individual’s name on the NYC Department of Education’s “Ineligible/Inquiry List” essentially bars future employment with the Department

The placement of an individual’s name on the NYC Department of Education’s “Ineligible/Inquiry List” essentially bars future employment with the Department

2014 NY Slip Op 05047, Appellate Division, First Department

As the U.S. Circuit Court of Appeals said in Segal v NYC Department of Education, 459 F3d 207, the placement of an individual’s name on the New York City Department of Education’s “Ineligible/Inquiry List” essentially render the individual ineligible for future employment with the New York City Department of Education [DOE].*

In this Article 78 action Supreme Court denied a former tenured teacher’s [Teacher] petition seeking to, among other things, remove her name from an "ineligible/inquiry list" maintained by the New York City Department of Education (DOE), and dismissed the proceeding. The Appellate Division affirmed the lower court’s ruling.

DOE placed had place Teacher’s name on the "ineligible/inquiry list" after her employment as a tenured school teacher was terminated following a disciplinary hearing pursuant to Education Law §3020-a.

The Appellate Division held that Supreme Court “properly found that the proceeding is time-barred, since it was commenced some five months after Teacher received notice of the DOE's determination,” explaining that Teacher is deemed to be on notice of the DOE Chancellor regulation regarding automatic ineligibility for reemployment upon termination.”

Accordingly, Teacher was "aggrieved" for the purposes of the running of the statute of limitations upon notice of her termination and her commencement of her CPLR Article 78 action more than four months later was untimely.

In addition, the Appellate Division pointed out that Teacher’s Article 78 proceeding was also barred by the Doctrine of Collateral Estoppel insofar as Teacher sought to re-litigate issues determined in a prior CPLR Article 75 proceeding challenging the termination of her employment.

In the words of the court, Teacher’s “challenge to her placement on the ineligibility list is, for all intents and purposes, a challenge to her termination, which she already had a full and fair opportunity to litigate.”

* A DOE Chancellor regulation provides that placement of an individual’s name on the list is an automatic consequence of termination and indicates that individual is ineligible for reemployment with the DOE absent express approval by the Chancellor.
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Termination of a firefighter from his position held to be a reasonable disciplinary penalty under the circumstances

Termination of a firefighter from his position held to be a reasonable disciplinary penalty under the circumstances
2014 NY Slip Op 04941, Appellate Division, Second Department

A hearing officer found a firefighter [Firefighter] guilty of misconduct* and imposed the penalty of termination from the Department. Firefighter appealed the penalty imposed by hearing officer.

Supreme Court granted Firefighter’s petition with respect to the penalty imposed by:

[1] annulling so much of the determination as terminated the petitioner's membership in the Department,

[2] reducing the penalty to a suspension for a period of 29 months, with credit for the period of suspension already served, and

[3] directing the Department to reinstate Firefighter as a member of the Department.

The Appellate Division revered the Supreme Court’s decision “on the law” and confirmed the penalty imposed by the hearing officer.

The court noted that an administrative penalty must be upheld unless it "is so disproportionate to the offense . . . as to be shocking to one's sense of fairness," thus constituting an abuse of discretion as a matter of law. Here, said the court, Firefighter’s conduct endangered himself and distracted his coworkers while they were fighting a fire, thus possibly endangering them as well.

Under these circumstances the Appellate Division held that the penalty of termination of membership was not shocking to one's sense of fairness. Thus Supreme Court should have denied that branch of the petition which sought to review the penalty, confirmed the penalty, and dismissed the proceeding on the merits.

* The hearing officer found Firefighter guilty of “verbally abusive conduct directed to fellow firefighters during the course of a fire,” and failing to follow direct orders, including an order directing him to leave the scene of an emergency because he was not attired in proper gear.”

________________________

A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

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Free job retraining for high-skilled new Americans in science, technology, engineering and mathematics

Free job retraining for high-skilled new Americans in science, technology, engineering and mathematics

Source: The New York State Office for New Americans (ONA)

On July 14, 2014, the New York State Office for New Americans (ONA), The Cooper Union and  B’nai Zion Foundation opened registration for free professional courses and job placement assistance for high-skilled New Americans for the Fall 2014 semester.

This innovative public-private partnership with the Retraining Program for Immigrant Engineers is part of ONA’s focus on developing and leveraging the professional skills of New Americans and was launched in March of 2013 by Governor Cuomo. ONA is the first statewide office dedicated to assisting New York State's immigrants in their efforts to contribute to the economy and become a part of the family of New York.

Eligible immigrants are able to enroll in introductory and high-technology courses designed to update participants’ engineering, computer programming, and business skills. Classes are taught by The Cooper Union faculty and experts in the field and program offerings are flexible based on demand in the marketplace and needs of students.

All participants must have completed courses of study in their home country and be seeking retraining in the fields of science, technology, engineering, and mathematics (STEM).  Participants must also be permanent residents of the U.S. and have work authorization. 

“These courses are an important vehicle in expanding work opportunities for New Americans who already possess the skills our State’s employer’s need,” said Jorge I. Montalvo, Director of the New York State Office for New Americans. “We encourage eligible New Americans to enroll for these courses in order to maintain self-reliance and economic independence through productive employment in their chosen field relating to any of the STEM disciplines.”

Additional information, including courses being offered, is posted on the Internet http://www.bnaizion.org/retraining.php.

To schedule an appointment or to determine eligibility, call 212.725.1211, ext. 6245 or 646.485.7982, Monday through Thursday (9:00am to 5:00pm) and Friday (9:00am to 2:00pm). 
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IRS guidance on sick leave plans

IRS guidance on sick leave plans

Source: Internal Revenue Service, Office of Federal, State and Local Governments, July 2014

Government entities have established a variety of employer plans that provide a retirement benefit for employees based on credit for accumulated unused sick leave.

For example, §167.4 of the Civil Service Law provides that upon the retirement of a State employee whose salary is paid directly by the State, the actuarial value of the employee’s sick leave at the time of his or her retirement is to be used to pay all or part of the individual’s health insurance premium for the individual and his or her dependents during retirement while §41.j of the Retirement and Social Security Law provides for the inclusion of unused sick leave for members in the employ of the State as an employer in addition to any other service credit to which he or she is entitled at the rate of one day of additional service credit for each day of accumulated unused sick leave credit which he or she has at time of retirement for service, not to exceed one hundred sixty-five days.

Administrators of a plan with such features, or an appointing authority considering adopting a plan of this type for its employees, should be aware of how different features of such plans may affect the tax treatment of these benefits. The IRS Office of Federal, State and Local Governments [OFSLG] advises:

General Rule for Recognizing Income

In general, all compensation is included in wages at the time the Employees receive it, unless a specific exception applies.

One such exception, Internal Revenue Code Section 106, which provides that employer contributions to a health or hospital insurance plan for employees or former employees, their spouses and dependents, are excludable from the income of employees, and exempt from withholding for income tax, social security, and Medicare purposes.

When is income considered received?

Under IRC Section 451, individuals recognize income as soon as they have effective control over it; that is, when the funds are made available to the taxpayer without substantial limitations. This is known as the “constructive receipt” rule. Employer-provided health insurance benefits under Section 106 are excludable because, when paid directly by the employer, the employees are not considered to have constructive receipt of income through this benefit.

Generally, Section 106 of the Code provides that health and medical benefits can be provided tax-free by an employer. However, if there is an option/choice to receive cash or an other benefit, this may result in taxable wages, even if the employee does not elect to receive the cash [emphasis supplied].

If you have a plan or are considering a plan that provides for such a feature, you may want to review the IRS analysis, discussed below, that addresses whether or not such amounts can be excluded from an employee’s or former employee’s wages.

Note: Section 125 (“cafeteria”) plans provide a partial exception to the constructive receipt rules. These plans provide a choice between cash wages and a salary reduction to receive an excludable benefit. If the benefit is selected, the value is not included in wages. A Section 125, or cafeteria plan, cannot provide for deferred compensation. Only those benefits specifically indicated in Section 125 are eligible for tax-free treatment.

Revenue Ruling 75-539

Revenue Ruling 75-539 addresses the constructive receipt rules with specific reference to plans involving benefits for accumulated sick leave. This ruling remains the basis for the determining the tax treatment of various plans and has been cited many times since it was issued in 1975.

The ruling analyzes and distinguishes two labor contracts.

Situation 1: Upon retirement an employee will receive either a cash payment representing a part of unused sick leave, or may elect to apply to the employee’s share of the cost of participation in a health plan until the funds are exhausted.

The ruling concluded that, because in the employee had a choice to receive the benefit in cash, it was constructively received as income, even if the employee chose not to use the cash option. Therefore, the value of the benefit is included in gross income.

Situation 2: Upon retirement, the value of a portion of accumulated unused sick leave is placed in an escrow account to pay the full premiums of continued participation in the health plan until the funds are exhausted. No funds may be received in cash, and any unused part of the escrow amount reverts to the employer. Because these amounts were not made available to the employee directly, they constituted employer contributions to a health plan and are excludable from income under Section 106.

For additional information contact one of the following OFSLG Specialists for New York State: Dave Coulon [(315) 233-7305]; Jean Redman [(607-378-0069] or Granville Shannon [(212) 436 -1492].

Failure to allege discriminatory animus fatal to an individual’s claims of unlawful discrimination under State and New York City Human Rights Laws

Failure to allege discriminatory animus fatal to an individual’s claims of unlawful discrimination under State and New York City Human Rights Laws 

2014 NY Slip Op 05037, Appellate Division, First Department

The Appellate Division affirmed State Supreme Court granting the New York City Department of Citywide Administrative Service’s motion to dismiss an employee’s [Employee] Human Rights complaint.

The court, construing the complaint liberally and presuming its factual allegations to be true, gave Employee the benefit of every possible favorable inference and yet found that the Employee had not adequately plead or established a recognized disability under either the State or City Human Rights Law.

The Appellate Division explained that Employee’s medical proof only established that he was extremely anxious and stressed because of his daughter's medical condition.

Further, citing McEniry v Landi, 84 NY2d 554, the court said that Employee failed to adequately plead discriminatory animus. This, it pointed out, was fatal to Employee’s discrimination claims under the State and City Human Rights Laws.

New Language Proficiency Testing Advisory Memorandum, Policy Bulletin 14-01, issued by the New York State Department of Civil Service

New Language Proficiency Testing Advisory Memorandum, Policy Bulletin 14-01, issued by the New York State Department of Civil Service

Source: New York State Department of Civil Service

N.B.The State Personnel Management Manual addressing language proficiency testing for testing language proficiency for appointment to positions by entities for which the State Department of Civil Service administers the Civil Service Law has been revised. Policy Bulletin 14-01, which supercedes Advisory Memorandum #97-05, is set out below.

OVERVIEW

Effective July 9, 2014, the Department of Civil Service (DCS) will be utilizing Language Line Services, Inc. to provide additional resources and support for language proficiency test administration. For the over 200 classified titles that require language proficiency, Language Line Services will ensure the availability of test examiners in such languages as Spanish, Haitian Creole, Korean, Polish, Russian, and Chinese (Mandarin and Cantonese). If there are additional languages for which you require testing, please contact LanguageProficiency@cs.ny.gov.

Testing should be conducted on an as-needed basis and should be limited to reachable candidates. Language Line Services will schedule and administer language proficiency tests remotely or locally, by phone or in person, within three weeks of receiving a request. Candidates’ performance will be scored using the established New York State Proficiency Levels within five business days after test administration. Language Line Services will report test results to the requesting agency and to the DCS. The fee to use Language Line Services will be paid by the DCS. Language Line Services staff have been trained to administer the tests consistent with administration by State agencies.

USING LANGUAGE LINE SERVICES

Agencies who wish to use Language Line Services must designate a staff member from their Human Resource/Personnel Office to serve as the administrator for language proficiency testing. Administrators may access the Language Line Online Registration System User Guide for NYS at http://www.cs.ny.gov/ssd/Manuals/SPMM/1200Examinations/NYS%20Online%20Registration%20System%20User%20Guide%20with%20NYS%20OPT.pdf.

It is recommended that administrators print this guide for convenient referral. After reviewing the Guide, the Language Line Registration System may be accessed at: https://my.languageline.com/llu/go/login/.

USING IN HOUSE EXAMINERS

Agencies who have a ready pool of in house examiners may continue to use them. The honorarium for an in house examiner must be paid by the hiring agency. The DCS will not be certifying or training new in house examiners as the expectation is, over time, that agencies will transition to Language Line Services.

Agencies using in house examiners must contact LanguageProficiency@cs.ny.govto obtain revised Monitor Instructions, Candidate’s Booklet, Examiner’s Booklet, and Sample Letters/Forms. Please destroy existing language proficiency examination materials in a manner consistent with your agency’s elimination of secure and confidential material.

Agencies must designate a staff member from their Human Resource/Personnel Office to serve as the administrator for language proficiency testing. As necessary, the administrator may designate other monitors to conduct language proficiency testing. Test results should be reported to LanguageProficiency@cs.ny.gov. The test materials are designed to be reused and are considered confidential and secure and must be maintained in a confidential and secure manner in the agency Human Resource/Personnel Office.

PRIOR TESTING OF CANDIDATES

Whether you are using Language Line Services or in house examiners, before scheduling a test, the administrator should contact LanguageProficiency@cs.ny.govto determine if the candidate has already passed the proficiency test at the established proficiency level, or higher. Please provide the candidate’s name and last four digits of the Social Security number. If the candidate has already passed the language test at the established proficiency level, or higher, the test will be waived and the candidate may be considered for appointment. The DCS will continue to maintain a database of candidates who have been tested and the level of proficiency achieved so that repeated testing is not required.

DETERMINING LEVELS OF PROFICIENCY

The process for determining levels of proficiency remains unchanged. Agencies are responsible for providing the information necessary to determine the level of language proficiency that will ensure a candidate’s ability to properly perform the duties of the position at the examination planning scope conference. The level of proficiency must be the same for all positions within a title.

LEVELS OF PROFICIENCY

The levels of proficiency remain unchanged:

Level 1: This skill level requires relatively limited proficiency to conduct simple routine social conversations in an understandable manner making introductions, providing basic information about the surroundings, handling routine calls, or assisting others in filling out routine English language forms. Entry-level clerical titles with language parenthetics are designated as Level 1.

Level 2: This skill level requires proficiency in conducting smooth understandable conversation, reading correspondence, official documents, and forms to obtain accurate information, composing relatively simple and brief letters and memos for a variety of purposes, to explain rules or regulations, or to discuss a problem. Some higher level clerical, paraprofessional, and safety and security titles with language parenthetics are designated as Level 2.

Level 3: This skill level requires advanced proficiency evidenced by good control of grammar, a relatively large and diverse vocabulary, accurate communication in a variety of professional and social contexts, leading group activities, conducting meetings or training classes; administering tests, inventories or questionnaires including evaluating responses, preparing reports explaining relatively complex rules, regulations and procedures, conduct interviews, evaluate resources, or decide on a course of action. Some journey level personnel titles, social work, and psychologist titles with language parenthetics are designated as Level 3.

The names of candidates who fail to demonstrate the level of proficiency determined for the title will remain restricted on the language parenthetic eligible list. A retest may be granted six months after the candidate was last tested. Agencies may conduct a retest if and when they are actively canvassing the eligible list. Candidates who do not achieve the proficiency level required for the title may, upon request, receive a copy of the examiners rating of their performance. Appeal of ratings is not allowed as the opportunity for retest exists.

Questions regarding the information contained in this advisory may be directed to LanguageProficiency@cs.ny.gov.

Recent decisions by OATH Administrative Law Judges

Recent decisions by OATH Administrative Law Judges

Source:  New York City Office of Administrative Trials And Hearings

Physical altercations: A special officer was charged with engaging in an off-duty fight with a co-worker, making harassing phone calls to that co-worker, and striking a handcuffed homeless shelter resident in the face. ALJ Kevin F. Casey found that respondent was a willing participant in a fight with a co-worker at an off-duty event where many current and former agency employees were present. He recommended dismissal of the harassment charge because the Department did not prove that harassing phone calls were made or that special officer was the caller. As for the charge that the officer hit a resident, ALJ Casey found the testimony from the employer’s witness that he saw the officer strike a seated resident with a closed fist, more credible than the employee's claim that she pushed the resident after he charged at her with a head-butt motion. For the misconduct proven, ALJ Casey recommended a 60-day suspension. Dep't of Homeless Services v. Smith, OATH Index No. 518/14.

Excessive Absences: A computer programmer analyst was charged with misconduct, incompetence, and leaving her work station early on at least 165 occasions. ALJ Ingrid M. Addison found that the Agency condoned respondent’s practice of scanning out at 4:53 p.m., and recommended dismissal of that charge, but she sustained the charge that on each occasion that she scanned out at 4:53 p.m., respondent left her work station without authorization at least 18 minutes prior, in order to scan out on a different floor. ALJ Addison found that petitioner proved that respondent is incapable of performing the duties of her title. Although the Agency sought termination of respondent's employment, ALJ Addison found that petitioner must assume some responsibility for its failure to evaluate and assess respondent’s qualifications before assigning her to her position. She recommended demotion of respondent to her previous title. Financial Information Services Agency v. Leung, OATH Index No. 2115/13.

Failure to perform duties: A correction officer was found to have been excessively absent for missing 198 days of work in a nine-month period. Although the employee provided valid documentation for her continued absence, she still may be disciplined for failure to perform the duties of her position because of excessive absence. The employee was also found to have disobeyed orders on two occasions and to having filed a false report. Based on the high number of absences and the other misconduct proven, ALJ Alessandra F. Zorgniotti recommended the officer's termination from employment. Dep't of Correction v. Vives, OATH Index Nos. 1162/14, 1163/14 & 1164/14.

Leaving training class early: ALJ Faye Lewis found that an assistant civil engineer committed misconduct by leaving a training class early without authorization and by failing to participate in the class and instead reviewed other work material. The ALJ recommended the employee be suspended without pay for two days, finding that the Agency's proof failed to establish that employee was disruptive in class or that he committed misconduct because he had absented himself from class for two hours to attend a scheduled meeting with a supervisor. Dep't of Environmental Protection v. Frenzel, OATH Index No. 611/14.

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A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

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Providing assistance to an employee in the negotiating unit served with disciplinary charges

Providing assistance to an employee in the negotiating unit served with disciplinary charges

Source: Inquiry from a NYPPL reader

A reader asks “what kinds of assistance may a union provide a member served with disciplinary charges?”

Most Taylor Law agreements include a multi-step disciplinary grievance procedure in lieu of, or as an alternative to, a statutory disciplinary procedure. Included in the employee organization’s duty of fair representation is the duty to assist an individual in the collective bargaining unit in the event the individual is served with disciplinary charges by the appointing authority.

If, after evaluating the disciplinary action initiated by the appointing authority against the employee, the employee organization determines that it has a duty to assist the employee in the defense of the disciplinary charges filed against the individual, its representative or an attorney designated by the employee organization can assist the employee by representing him or her in the disciplinary grievance procedure and represent the individual in an administrative disciplinary hearing as well as advising the individual in the following areas:*

1. Evaluate the charges and possible defenses available to the employee. The union representative or attorney typically has the experience and training to advise the individual of the potential for successfully defending the disciplinary action, in whole or in part, and the disciplinary penalties that may be imposed if the individual is found guilty of one or more of the charges filed against him or her.

2. Negotiate with the employer's representative or attorney. A union’s representative or attorney can discuss possible settlement or withdrawal of the charges with employer or its representative to negotiate the best settlement possible to attain a mutually satisfactory resolution of the disciplinary charges. 

3. Evaluate settlement offers. If an offer to settle the disciplinary action is made by the employer, the union’s representative or attorney can advise the individual about things that might be prove significant such as the impact of a resignation from the position in lieu of the employer going forward with prosecuting the charges. Likewise the union’s representative or attorney may initiate settlement discussions with the employer's representative or the employer's attorney.

4.Consider the economic impact of the settlement under consideration.  The settlement offer could have an adverse impact on the individual’s career, other job opportunities, retirement benefits and other elements involving his or her financial future that the union’s representative or attorney could explain.

5.Anticipate legal issues the individual may not have considered. The union’s repetitive or attorney can explain the plethora of legal issues that could arise as a result of finding that the individual guilty of one or more of the charges filed against the employee in a disciplinary action or, in the alternative, the potential difficulties that might arise in the event the matter is settled or the employee’s submits his or her resignation or an application for retirement in an effort to avoid a disciplinary hearing.

*These same general observations would apply in the event the disciplinary charges are filed against a member of the negotiating unit pursuant to Civil Service Law §75, Education Law §3020-a or a similar statutory disciplinary procedure.

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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

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Violating the employer’s prohibition against its employees associating with an individual associated with criminal activity

Violating the employer’s prohibition against its employees associating with an individual associated with criminal activity

Dillin v Waterfront Commn. of N.Y. Harbor, 2014 NY Slip Op 05036, Appellate  Division, First Department

Supreme Court granted a longshoreman’s [Petitioner] motion seeking to annul the determination of the Waterfront Commission of New York Harbor (Commission) revoking Petitioner's longshoreman's certificate and remanded the matter for a new hearing before a different hearing officer. The Appellate Division reinstated the Commission’s determination.

The Appellate Division explained that the Commission’s finding that Petitioner “violated a prohibition against association with an identified member of an organized crime family is supported by substantial evidence,” noting that the prohibition was imposed by a federal court* pursuant to a provision* of the Waterfront and Airport Commission Act.** “prohibiting such association under circumstances rendering a person's continued participation in any activities requiring registration pursuant to the WCA to be ‘inimical to the policies of’ the WCA (Uncons Laws § 9913[6]).” The policies of the WCA, said the court, include countering organized crime and corruption which have been found to be endemic in waterfront labor practices.

In this case there was testimony that Petitioner attended two parties that were also attended by an associate of an organized crime group. The Appellate Division said that there was “sufficient evidence to refute Petitioner's claim that her attendance at the same parties as the person in question was accidental or inadvertent.” Petitioner, said the court, also admitted to making remarks to coworkers about being "best friends" with this person and "hanging out" with him, and insofar as petitioner suggested that she was not serious about such remarks, the ALJ was not required to credit her testimony.

The Appellate Division then said that it did not find that the penalty of revocation of Petitioner's registration shocking to one's sense of fairness in that by associating with individuals with connections to organized crime and boasting about such associations to other longshoremen, Petitioner “engaged in conduct which potentially undermines the Commission's continuing efforts to ensure public safety by reducing corruption on the waterfront.”

Noting that Petitioner “does not have a perfect record” in that she was suspended by the Commission for 15 days for filing a false application for longshoreman registration and  was also previously found guilty of theft by deception for continuing to receive food stamps after she had become ineligible, the court said that “In light of Petitioner's behavior in connection with the instant misconduct and on previous occasions, revocation of petitioner's registration does not shock our sense of fairness.”

An employer, particularly one engaged in law enforcement, may prohibit its employees from associating with certain individuals.

For example, the Suffolk County Police Department's rules prohibit members of the Department from "associating or fraternizing" with any person known (by the employee) to have been convicted of any misdemeanor or felony under (any) state or federal law”. A police officer, after being advised that "a close friend" was a convicted felon, decided his continued association with him would not violate Department rules because the individual's "conviction was nearly 20 years old" and he had a "certificate of relief from civil disabilities." Eventually the officer was charged pursuant to §75 of the Civil Service Law with violating Department Rules, found guilty, and had to forfeit 10 days of vacation credit as a penalty. The Court of Appeals rejected the officer's argument that the rule was unconstitutionally overbroad,*** noting that the State could regulate the off-duty conduct of its police officers even though it involved a constitutionally protected right (1st Amendment, Right of Association), the regulation was held to serve a valid governmental concern the public's perception of a police department as perceived through the conduct of the individual officers.

Indeed, in Fludd v Sielaff, 184 A.D.2d 362 (1992), the Appellate Division sustained the termination of a New York City correction officer who, when police officers seeking to execute a warrant for the arrest of her estranged husband, asked her if she knew his whereabouts, denied having seen him for three or four weeks, knowing that he was hiding in another room in her apartment. A few moments later police discovered her estranged husband and arrested him. Fludd  was charged with official misconduct for "harboring a fugitive," and for lying about her knowledge of his presence in her apartment when confronted by police seeking to arrest him. The court explained that "the commissioner was free to find that the choice [Fludd] made was utterly incompatible with her position as correction officer."

Further, the U.S. Supreme Court has refused to review an appeal of a California State Court decision, Bailey v National City, Calif., 277 Cal Rptr 427, which had sustained the termination of a police officer who was found to have violated department rules concerning outside work, used his position as a police officer for personal gain and refused to discontinue a personal association with a known felon.

* See United States v ILA Local 1588, 2003 WL 221851, 2003 US Dist LEXIS 1229 [SD NY, Jan. 30, 2003], affd 77 Fed Appx 542 [2d Cir 2003].

** Unconsolidated Laws of New York, §9801, et seq.

*** Morrisette v. Dilworth, 59 N.Y.2d 449 (1983).