A limitation on an arbitrator’s discretion to fashion a remedy must be contained, either explicitly or incorporated by reference, in the arbitration clause

A limitation on an arbitrator’s discretion to fashion a remedy must be contained, either explicitly or incorporated by reference, in the arbitration clause
Matter of Town of Scriba (Teamsters Local 317), 2015 NY Slip Op 05316, Appellate Division, Fourth Department

Teamsters Local 317 (Union) appealed from an order and judgment of Supreme Court granting the application of the Town of Scriba [Scriba] to vacate an arbitration award. 

The stipulated issue submitted to the arbitrator asked "[w]as the suspension and termination of the [g]rievant, … for just cause? If not, what shall be the remedy?"

Among other things, the arbitrator had determined that, although maintaining a commercial driver's license (CDL) was a minimum standard for employment, the terms of the collective bargaining agreement (CBA) did not mandate the employee's discharge from employment upon forfeiture of his CDL and, thus, Scriba did not have just cause to terminate the grievant.

The arbitrator fashioned a remedy whereby the grievant would be suspended without pay, and Scriba could terminate his employment only if he did not regain a valid CDL on or before a particular date.

Scriba appealed to the Supreme Court seeking an order vacating the arbitration award on the ground that the award exceeded the scope of the arbitrator's power.  Union filed a cross petition seeking to confirm the award pursuant to CPLR 7510. Supreme Court granted the Scriba’s motion to vacate the arbitration award.

Union appealed the Supreme Court’s decision and the Appellate Division agreed with the Union that Supreme Court erred in vacating the arbitration award, concluding that the arbitration award should have been confirmed.

The court said that it agreed with Union that the arbitrator did not exceed a specifically enumerated limitation on his authority, explaining that "It is well established that an arbitrator has broad discretion to determine a dispute and fix a remedy and that any contractual limitation on that discretion must be contained, either explicitly or incorporated by reference, in the arbitration clause itself."

The Appellate Division said that the relevant part of the collective bargaining agreement [CBA] stated only that "[i]f the dispute [regarding a grievance] cannot be satisfactorily resolved, the issue may be submitted to final and binding arbitration."  The court concluded that the CBA provided no "specifically enumerated limitation on the arbitrator's power" and that "the remedy sought was expressed in open-ended terms that certainly did not limit the arbitrator's power to grant any specific relief."

 

The court also agree with the Union that the award was not irrational, explaining that "An award is irrational if there is no proof whatever to justify the award” and so long as an arbitrator offers “even a barely colorable justification for the outcome reached” the arbitration award must be upheld.

Here, said the Appellate Division, “the language of the CBA is ‘reasonably susceptible of the construction given it by the arbitrator’ and the arbitrator offered a ‘colorable justification for the outcome reached.'”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05316.htm

Placement on involuntary leave as the result of disability not work-related under color of Civil Service Law §72.5

Placement on involuntary leave as the result of disability not work-related under color of Civil Service Law §72.5

2015 NY Slip Op 05318, Appellate Division, Fourth Department

In August 2011, a firefighter [Firefighter] was removed from active duty because of an on-the-job hypoglycemic incident caused by his diabetes. Although Firefighter, his union, and the City's Fire Department subsequently engaged in negotiations regarding Firefighter's status, Firefighter was not formally notified that he had been placed on an immediate involuntary leave of absence pursuant to Civil Service Law §72.5 until April 2012.*

Firefighter challenged the decision. Ultimately a hearing officer determined that Firefighter had been properly placed on immediate involuntary leave, but additionally determined that he should be allowed to return to work and granted Firefighter some remedial relief.

In September 2013 the Fire Department Chief, reviewed the Hearing Officer's determination and decided that Firefighter should remain on involuntary leave, with no remedial relief. Firefighter appealed that determination to the County Department of Personnel, which affirmed the Fire Chief’s decision.

Firefighter filed a CPLR Article 78 petition in Supreme Court seeking to annul the determination that he was unfit for active duty as a firefighter because of his inability to manage his diabetic symptoms. Supreme Court transferred the matter to the Appellate Division pursuant to CPLR 7804 (g).

The Appellate Division agreed with Firefighter that the Fire Department did not strictly comply with the procedural requirements of the Civil Service Law, concluding that the procedural protections contained in Civil Service Law §72.1 apply to proceedings brought pursuant Civil Service Law §72.5 based on the language in §72.1 that the provisions of notice and hearing therein apply to employees "placed on leave of absence pursuant to this section" (emphasis in the opinion), "which includes Civil Service Law §72.5."

The court explained that these procedures are necessary "to afford tenured civil servant employees... procedural protections prior to involuntary separation from service," citing Sheeran v NYS Department of Transportation, 18 NY3d 61. The Appellate Division said that "[b]ecause of the significant due process implications of the statute, strict compliance with its procedures is required."**

Here it was undisputed that Fire Department did not strictly comply with the procedures set out in §72 for placing petitioner on immediate involuntary leave inasmuch as it was not until April 2012 that Firefighter was provided with "[w]ritten notice of the facts providing the basis for the judgment of the appointing authority that [Firefighter was] not fit to perform the duties of" his position. Although the parties had engaged in negotiations during the period before the Fire Department provided Firefighter with written notice, the Department conceded that at no time did Firefighter waive his rights under section §72.

The absence of strict compliance with these procedural requirements renders Firefighter’s alleged leave a nullity prior to September 30, 2013, when the Fire Chief issued his final determination after reviewing the Hearing Officer's decision. Accordingly, said the Appellate Division Firefighter is entitled to back pay and the restoration of benefits from August 26, 2011 until September 30, 2013.

However, said the court, it concluded that the determination that Firefighter was unfit for active duty is supported by substantial evidence that Firefighter “was rendered unfit to serve as an active duty firefighter because of his inability to manage his diabetic symptoms.

However, the Appellate Division said that as the Fire Department had “violated lawful procedure after initially determining that [Firefighter] was unfit for active duty in August 2011,” it said that Firefighter was entitled to a hearing, should he request one, to determine his current fitness to be reinstated, provided that his application for reinstatement is made within one year of our decision herein”, explaining that while  Firefighter “is not within the one-year time period for seeking reinstatement … [Fire Department is] estopped from asserting that [Firefighter] is time-barred from seeking such relief because the delay was caused by [Fire Department’s] failure to comply with the procedures.”

* An individual unable to perform the duties of his or her position as the result of an occupational injury or disease is placed on Workers' Compensation Leave pursuant to Civil Service Law §71.

** Termination of an employee placed on leave pursuant to Civil Service Law §72 is effected pursuant to Civil Service Law §73 as a matter of the exercise of discretion by the appointing authority.

N.B. An employee terminated from a “§72” leave pursuant to Civil Service Law §73 “may, within one year after the termination of such disability, [emphasis supplied],  make application to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission” rather within one year of the effective date of the employee’s termination from a §72 leave pursuant to §73. The same is true with respect to an employee terminated from service while on §71 Workers' Compensation Leave.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05318.htm

_____________

Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

_____________

Employee terminated after being found guilty of inflicting corporal punishment on pupils

Employee terminated after being found guilty of inflicting corporal punishment on pupils

2015 NY Slip Op 05787, Appellate Division, First Department

The New York City Chancellor of Education's Regulation A-420 prohibits inflicting corporal punishment on a student. Corporal punishment is defined as "any act of physical force upon a pupil for the purpose of punishing the pupil."

An individual [Petitioner] employed by the New York City Board of Education was charged with, and found guilty of, inflicting corporal punishment on  pupils by the arbitrator and the penalty imposed was termination from service.

Petitioner challenged the arbitration award and Supreme Court vacated the penalty imposed and remanded the matter “for determination of a lesser penalty.”

The Appellate Division unanimously reversed the Supreme Court’s decision, on the law, and entered a judgment confirming the award.

The court said that the “penalty of termination does not shock our sense of fairness,” noting that Petitioner had committed four separate acts of corporal punishment, in violation of Chancellor's Regulation A-420, three of these acts having occurred after he  had been formally warned that any recurrence of his misconduct would result in further disciplinary action and he had been referred to a mandatory training workshop on "appropriate behavior intervention strategies." The court also that the pupils who suffered the corporal punishment were “non-verbal autistic children, incapable of protecting themselves or reporting what happened to them.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05787.htm

Resigning from one’s position for “good cause” is critical to the individual’s eligibility for unemployment insurance benefits

Resigning from one’s position for “good cause” is critical to the individual’s eligibility for unemployment insurance benefits

2015 NY Slip Op 05542, Appellate Division, Third Department

An applicant for Unemployment Insurance Benefits [Claimant] resigned from her position as the circulation coordinator at a public library after seven years of service. She was denied benefits and an administrative law judge [ALJ] sustained the administrative ruling following a hearing.

Claimant appealed and the Unemployment Insurance Appeal Board reversed the ALJ’s determination and found that Claimant was, indeed, entitled to receive benefits. The employer appealed the Board’s decision.

The Appellate Division said that "'Whether a claimant has good cause to leave his or her employment is a factual determination to be made by the Board, and its decision will not be disturbed when supported by substantial evidence.'"

Here, said the court, Claimant testified to an ongoing conflict with the technology coordinator at the library, which testimony was supported by another employee. When Claimant brought these facts, along with other facts regarding the technology coordinator actions, to her supervisor’s attention, the supervisor offered no assistance to Claimant. Claimant then sought assistance from management, but was told that she would not receive assistance without the support of her supervisor.

Deferring to the Board's credibility determinations regarding the testimony of the witnesses at its hearing, the Appellate Division explained that there was substantial evidence for the Board's findings that Claimant's employer failed to take “even minimal steps to confirm or refute the alleged report that the technology coordinator had been inappropriately monitoring” Claimant's whereabouts and activities during Claimant's breaks.

The court said that it found no reason to disturb the Board's determination that such inaction by the employer provided good cause for claimant to leave her employment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05542.htm

Membership in the New York State Employees’ Retirement System is critical to an employee’s earning member service credit

Membership in the New York State Employees’ Retirement System is critical to an employee’s earning member service credit

2015 NY Slip Op 05532, Appellate Division, Third Department

Retirement and Social Security Law §102 (e) provides that “In the event that a disability retiree is restored to active service of an employer, at a salary less than his [or her] final salary but equal to or in excess of the current minimum salary for the position from which he [or she] was last retired for disability, such person, if he [or she] so elects, shall again become a member of the retirement system and his [or her] retirement allowance shall cease. He [or she] thereafter shall contribute to the retirement system in the same manner as and at the same rate that he [or she] paid prior to his [or her] disability retirement. The total service credit, to which he [or she] was entitled at the time of such retirement, again shall be credited to him [or her]. Upon his [or her] subsequent retirement, he [or she] shall be credited, in addition, with all member service earned by him subsequent to his [or her] last restoration to membership.*

A member of the New York State Employees’ Retirement System [NYSERS] employed by a State agency retired due to illness in 1980 and was receiving an ordinary disability retirement allowance. In 1985 the individual’s [Retiree] health improved and she was reemployed by her former agency. However, upon returning to employment Retiree did not rejoin the Retirement System** and continued to receive her disability pension benefit as authorized Retirement and Social Security Law §102(e) in addition to her receiving her salary.

In 1995 Retiree asked NYSERS to provide her with her service credit in the System and she was informed that she had accumulated 10 years, 7 months and 15 days of service credit between 1969 and 1980. In addition, Retiree was expressly told that she was not "receiv[ing] service credit for time worked after retirement while [she was] also receiving pension benefits."

In 2006 Retiree wrote to NYSERS inquiring as to whether she had in fact applied to be "restored to membership" in the System and, further, whether it was possible to retroactively obtain service credit for her postretirement work.

After being advised that she could not simultaneously collect her disability pension benefit and be an active member of NYSERS earning service credit., the matter proceeded to an administrative hearing. The Hearing Officer found, among other things, that Retiree was not entitled to additional service credit. The Comptroller adopted the Hearing Officer's findings in this regard and Retiree initiated a CPLR Article 78 proceeding challenging the Comptroller's determination.

The Appellate Division sustained the Comptroller decision, noting that “the Comptroller “is charged with the responsibility of determining service credits for retirement purposes and his determination will be upheld if rational and supported by substantial evidence."

Retiree, said the court, as the party seeking additional service credit bore the burden of demonstrating her entitlement to such credit.” In this instance the court said that §102 governs postretirement employment by disability pensioners and dictates, based upon the disability retiree's final salary following his or her return to active service, whether membership in the Retirement System is mandatory or optional. The evidence presented at the hearing showed that Retiree's salary upon returning to active service did not make membership in the System mandatory and while Retiree explored the possibility of becoming, once again, a member of the System, she never actually exercised her option to do so.

In the words of the Appellate Division: “Absent membership in [NYSERS] following her return to service in 1985, and in light of her continued receipt of disability pension benefits, [Retiree] simply was not entitled to earn additional service credit."

The decision also notes that despite Retiree’s arguments to the contrary, “the Comptroller was not under an affirmative duty to either apprise [Retiree] of all available options relating to her retirement benefits or ensure that she selected the most advantageous benefit.”

Accordingly, the Appellate Division found that the Comptroller's determination denying Retiree additional service credit was supported by substantial evidence and dismissed her appeal.

* In contrast, §102 d of the Retirement and Social Security Law provides as follows: In the event that a disability beneficiary is restored to active service of an employer, at a salary equal to or in excess of his [or her] final salary, his retirement allowance shall cease. Such person thereupon again shall become a member of the retirement system. He thereafter shall contribute to the retirement system in the same manner as and at the same rate that he [or she] paid prior to his [or her] disability retirement. The total service credit, to which he [or she] was entitled at the time of such retirement, again shall be credited to him [or her]. Upon his subsequent retirement, he [or she] shall be credited, in addition, with all member service earned by him subsequent to his [or her] last restoration to membership.

**  An individual’s membership in NYSERS ceases upon his or her retirement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05532.htm

“Scam” Emails Involving Notices to Appear in Court

“Scam” Emails Involving Notices to Appear in Court

Source: New York State Unified Court System

It has come to the attention of the New York State Unified Court Systemthat scam emails, purporting to be coming from the New York State Court System, directing recipients to report to court and to open an attachment for more information, are infecting recipients’ computers with a virus.

The New York State Unified Court System has posted the following warning on the Internet::

“These scam emails typically instruct recipients to report to court on a specific day and time, and they often direct the recipient to bring documents and witnesses with them. They also typically warn that the court may proceed in their absence and that they will be sanctioned if they do not appear. The emails also instruct recipients to read a court notice that is attached. The attachment contains a computer virus. Do not open the attachment. Delete the email.

“Be on the alert. If you are not involved in a court proceeding and have not supplied the NYS courts with an email address for receiving court notifications, the courts do not communicate with you by email. The court system does not send unsolicited emails or requests for personal information. The court system does not send emails threatening sanctions if you do not appear in court. Nor does the court system send emails that ask you to open attachments in order to obtain additional information.

“If you have a question about a notice you have received from the New York State Unified Court System, please call 1-800-Court-NY.”

For more information about online scams, contact the NYS Office of the Attorney General:
http://www.ag.ny.gov/internet/common-online-scams

and/or the United States Federal Trade Commission:
http://www.consumer.ftc.gov/articles/0003-phishing

Remember, if you are unsure of the origin of a message, don’t open it, don’t reply to it and don’t click on any links within the message - delete the message.

Education Department posts proposed Probationary Appointments and Tenured Teacher Disciplinary Hearing Regulations

Education Department posts proposed Probationary Appointments and Tenured Teacher Disciplinary Hearing Regulations

EMERGENCY/PROPOSED RULE MAKING - NO HEARING(S) SCHEDULED
I.D. No. EDU-27-15-00006-EP filed June 6, 2015 effective June 23, 2015

The Education Department said that the proposed rule is necessary to conform the Commissioner’s Regulations to changes in the Education Law enacted in Subparts D and G of Part EE of Chapter 56 of the Laws of 2015, relating to probationary appointments and tenured teacher hearings.It is anticipated that the proposed rule will be presented for adoption as a permanent rule at the September 16-17, 2015 Regents meeting, which is the first scheduled meeting after expiration of the 45-day public comment period prescribed in the State Administrative Procedure Act for State agency rule makings.

Full text is posted at the following State website:

http://www.regents.nysed.gov/meetings/2015/2015-06/higher-education

The following is a summary of selected parts of the proposed rule:

§30-1.3 is amended to provide that for appointments of classroom teachers and building principals made on or after July 1, 2015, the board resolution must reflect that, except to the extent required by the applicable provisions of Education Law §§2509, 2573, 3212 and 3014, in order to be granted tenure, the classroom teacher or building principal shall have received composite or overall annual professional performance review ratings pursuant to Education Law §§ 3012-c and/or 3012-d of either effective or highly effective in at least three (3) of the four (4) preceding years and if the classroom teacher or building principal receives an ineffective composite or overall rating in the final year of the probationary period he or she shall not be eligible for tenure at that time.

The Title of Subpart 82-1 and §82-1.1 are amended to provide that Subpart 82-1 applies to hearings on charges against tenured school employees pursuant to §3020-a of the Education Law that are commenced by the filing of charges on or after August 25, 1994 and prior to July 1, 2015.

A new Subpart 82-3 is added, relating to hearings on charges against tenured school employees pursuant to §3020-a of the Education Law that are commenced by the filing of charges on or after July 1, 2015. §82-3.1, Application of this Subpart, provides that Subpart 80-3 applies to hearings on charges against tenured school employees pursuant to §§3020-a and 3020-b of the Education Law that are commenced by the filing of charges on or after July 1, 2015.

§82-3.10 establishes procedures for probable cause hearings related to suspensions without pay of employees charged with misconduct constituting the physical or sexual abuse of a student.

Other sections provide for requesting a hearing; sets forth the requirements andprocedures for requesting a hearing;  the appointment of hearing officer in standard andexpedited §3020-a proceedings and similar procedural matters addressing disciplinary actions taken against educators and administrators.

Text of rule and any required statements and analyses may be obtained from: Kirti Goswami, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov

Data, views or arguments may be submitted to Peg Rivers, State Education Department, Office of Higher Education, Room 979 EBA, 89 Washington Ave., Albany, NY 12234, (518) 486-3633, email: regcomments@nysed.gov

Public comment will be received until 45 days after publication of this Notice. [Notice was published in the NYS Register dated July 8, 2015.]

Recent decisions by New York City’s Office of Administrative Tribunals and Hearings Administrative Law Judges

Recent decisions by New York City’s Office of Administrative Tribunals and Hearings Administrative Law Judges

The material highlighted inblue links to the full text of the decision

Absence on Family Medical Leave - In 2008 respondent was granted leave under the Family Medical Leave Act (FMLA) and was instructed to provide a certificate of clearance from his doctor before returning to duty. After his leave was exhausted, respondent failed to return to work. He was charged with being AWOL and was demoted without a hearing. Respondent subsequently reported to work in 2009 and presented medical documentation that he was fit to return to work. Respondent was advised that he was not cleared for duty and that the agency would get back to him. Five years later, the agency charged respondent with being AWOL between 2009 and 2014. Administrative Law Judge Alessandra F. Zorgniotti found that the agency did not prove the charges because respondent made several attempts to return to work and that the agency left his employment status in an indeterminate state.   DOITT v. Anonymous, OATH Index No. 051/15.

Off-duty assault - Respondent, a civilian employee working as a cement mason in a City jail, was charged with misconduct for two alleged off-duty assaults. Respondent presented testimony from his therapist showing that he suffers from bipolar disorder, and he has taken substantial steps to keep his disorder under control with medication and therapy. Administrative Law Judge [ALJ]. Kevin F. Casey found that only one of the assaults was proven. ALJ Casey found that termination of employment would be excessive, since misconduct was attributable to respondent's disability. He recommended a 45-day suspension without pay, with credit for time served.   Dep't of Correction v. A.A., OATH Index No. 2757/14.

Use of excessive force by a correction officer -  A correction officer was charged with using excessive force against an inmate on two occasions. Administrative Law Judge John B. Spooner found that one set of charges was barred by the 18-month statute of limitations in the Civil Service Law. Regarding the second set of charges, which were timely, the Department proved that the officer hit an inmate in the head, while escorting him on a gurney, and had submitted a false report denying that he had used force. The recommended penalty was a forty-day suspension without pay.   Dep't of Correction v. Arias, OATH Index No. 920/15, [adopted.] 

Making a false statement - A correction officer was charged with failing to comply with the Department's undue familiarity rules and making false statements. Respondent notified the Department that a "family member" was housed in a City jail and that she would be posting his bail and sending mail and money to him. The inmate was later transferred to a state prison and, for a year, respondent failed to notify the Department that she would have similar contact with the inmate while he was in the state facility. At trial respondent acknowledged that the inmate is her significant other with whom she had lived with for more than seven years. Administrative Law Judge [ALJ] Tynia D. Richard recommended that false statement charges be sustained but the undue familiarity charges be dismissed. The ALJ found that respondent provided sufficient notification to comply with the undue familiarity rules, and her identification of the inmate as a "family member" was not misleading since Department rules do not require a more detailed description. The ALJ recommended a penalty of 15-day suspension for false statements.   Dep't of Correction v. Caldwell, OATH Index No. 2702/14.

Throwing an object at a co-worker - An employee was charged with raising her voice to a co-worker stating "you messed up" and "I am tired of this", and throwing a binder clip at the co-worker. The employee admitted that she had raised her voice and that she threw the binder clip in the co-workers' direction, but did not mean to hit her with the clip. Administrative Law Judge [ALJ] Kara J. Miller found the employee's testimony to be credible and ruled that she could only be disciplined for throwing the binder clip in the co-workers' direction. Statements made during the argument did not constitute misconduct as it was not shown that the disagreement, which was brief, disrupted the office. ALJ Miller recommended a five-day suspension, with credit for time served in pre-hearing suspension.   Dep't of Education v. Collins-Jackson, OATH Index No. 832/15. 

Videotape evidence - Administrative Law Judge [ALJ] Faye Lewis found that a correction officer used unnecessary and excessive force against an inmate. Videotape evidence, documentary proof of the inmate's head injuries and testimony from an officer who witnessed the incident, proved that the officer struck the inmate in the head without provocation and stomped the inmate's head two times while he was lying on the floor. Respondent's claim that he used force because he reasonably believed that the inmate had a weapon and he feared for his life, was not supported by any evidence other than respondent's testimony, which ALJ Lewis found to be incredible. Termination of employment was recommended.   Dep't of Correction v. Victor, OATH Index No. 388/15, [adopted,]

Claiming and denying benefits available pursuant to General Municipal Law §207-c

Claiming and denying benefits available pursuant to General Municipal Law §207-c

2015 NY Slip Op 05476, Appellate Division, Second Department

This decision by the Appellate Division illustrates some of the procedural elements involved in claiming and providing benefits available to law enforcement personnel injured in the performance of his or her official duties.

The genesis of the case was the Town’s adopting the findings and recommendations of a hearing officer that a Town Police Officer [Officer] was [1] not physically able to perform his regular police duties and [2] that his continuing left knee complaints were not related to a certain line-of-duty incident. The Town adopted the hearing officer’s findings and terminated the Officer’s General Municipal Law §207-c, benefits. The Town also declined to re-credit Officers leave credits that used to remain on the payroll while absent from work under color of his having a work-connected disability.

Ultimately the Appellate Division found that Officer had been injured in the line of duty and received benefits pursuant to General Municipal Law §207-c. However the court also found that an orthopedic surgeon appointed by the Town to examine Officer subsequently concluded that Officer had a preexisting "condition" involving his left knee that was the proximate cause of his present knee condition, and that Officer was fit for full duty.

The Appellate Division’s decision states that when the Town's Chief of Police directed Officer to report for full duty he protested and the Chief then directed him to return to work in a "transitional, restricted-duty" capacity. Officer’s treating orthopedic surgeon submitted a letter disputing the Town’s medical examiner’s conclusion that Officer was fit to return to full duty but opined that Officer was fit for a light duty assignment that would accommodate his physical limitations.

When directed to report for restricted duty, Officer requested a hearing in order to challenge the Town discontinuing his General Municipal Law §207-c benefits as was his right under the controlling the collective bargaining agreement between the Town and the Officer's employee organization. Officer then returned to work in a restricted-duty capacity. The Town denied Officer’s request for a hearing.

The Officer’s employee organization then demanded that the issue of Officer’s right to a hearing be submitted to arbitration. The arbitrator ruled that Officer did have a right to a hearing concerning the termination of his General Municipal Law §207-c benefits. Upon receipt of the arbitrator's award Officer “advised his superior officer of his position that he was not required to report for work in any capacity until the conclusion of the hearing.”

Officer’s superior, in turn, advised Officer that he was required to continue his "light duty" assignment in accordance with provisions set out in General Municipal Law §207-c and that his failure to report for duty would be  considered being absent from duty without proper authorization. Officer elected to absent himself from work and used his accumulated leave credits [1] in order to be continue on the payroll in lieu of General Municipal Law §207-c payments to cover his absence from work pending the hearing and [2] to avoid disciplinary action.

The hearing officer appointed to determine if Officer was physically able to perform his regular duties and whether his continuing disability, if any, was related to the line-of-duty incident found that Officer:

[1] Was not physically able to perform his regular duties and

[2] His inability to perform his regular duties was not the result of any work-related incident.

The Town Board adopted the hearing officer's findings of fact and recommendations and terminated the Officer’s General Municipal Law §207-c benefits. The Town also determined that Officer was not entitled to be re-credited with any of the leave credits he used during his absence from work after being told to report for duty by his superior.

Officer next commenced a proceeding pursuant to CPLR Article 78 to review the Town’s determinations. The Supreme Court granted that part of Officer’s petition providing for the annulment of the Town’s determination not to re-credit Officer’s leave time he used from January 17, 2012, to November 20, 2012 and the Town was directed to re-credit him with that leave time. The court then transferred the proceeding to Appellate Division.

Having the full record before it, the Appellate Division, “in the interest of judicial economy,” decided to consider the case “on the merits.”

The court said:

1. A disabled officer receiving General Municipal Law §207-c benefits is entitled to a due process hearing before those benefits may be terminated when the officer submits medical evidence contesting the finding of a municipality's appointed physician that the officer is fit for duty.

2. Once such evidence has been submitted, an "order to report for duty may not be enforced, or benefits terminated,” pending adjudication of the individual's claim in an administrative hearing, which hearing decision itself is subject to review under CPLR Article 78.

3. Where the municipality's physician is of the opinion that the officer is able "to perform specified types of light police duty," payment of the full amount of salary or wages may be discontinued should the officer refuse to perform such light police duty if an appropriate assignment "is available and offered to [the officer]" and enables him or her "to continue to be entitled to his [or her] regular salary or wages."

4. If an officer who refuses to return to light duty fails to provide medical proof that he or she is unable to do so, the municipality may discontinue his or her §207-c benefits without a hearing.

Here, said the Appellate Division, there is no dispute that Officer [a] was able to perform a light-duty assignment; [b] received and followed an order to return to work and perform a restricted duty assignment, for which he received his full salary; [c] refused an offer to continue performing this light-duty assignment, although he remained able to so; [d] the granting of a General Municipal Law §207-c hearing did not excuse Officer from performing his light-duty assignment; and [e] received an unequivocal order to return to his light-duty assignment, which her refused to obey, electing instead to use his accumulated leave time in order to remain on the Town's payroll.

The Appellate Division concluded that when Officer refused to return to his light-duty assignment, the Town was entitled to discontinue his §207-c benefits without a hearing. Accordingly, the Town's determination not to re-credit the accumulated leave time he used to remain on the payroll was not arbitrary and capricious and must be sustained.

The court also commented that the hearing officer's determination that Officer’s disability was not causally related to the line-of-duty incident was supported by substantial evidence. The hearing officer, said the Appellate Division, was free to credit the testimony and reports of the Town's medical expert over the conflicting opinion of the Officer's treating orthopedic surgeon.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05476.htm

_____________

Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

_____________

Unpaid interns may be deemed employee depending on the beneficiary of their services

Unpaid interns may be deemed employee depending on the beneficiary of their services

Glatt et al. v. Fox Searchlight Pictures, Inc. et al., USCA, 2^nd Circuit, #13-4478

In a class action brought by unpaid interns claiming compensation as employees under the Fair Labor Standards Act [29 USC 207-06] and New York Labor Law [§652], the Circuit Court of Appeals said that when determining when is an unpaid intern entitled to compensation as an employee under the FLSA, the proper question is whether the intern or the employer is the primary beneficiary of the relationship.

The U.S. Department of Labor Division of Wages and Hours Fact Sheet #71 addresses Internship Programs under the Fair Labor Standards Act. This fact sheet provides general information to help determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act for the services that they provide to “for-profit” private sector employers.

Interns in the “for-profit” private sector who qualify as employees rather than trainees typically must be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek

However interns who receive training for their own educational benefit may not fall within the ambit of the FLSA if the training meets certain criteria.  The determination of whether an internship or training program meets this exclusion depends upon all of the facts and circumstances of each such program.

Fact Sheet #71 states that the following six criteria must be applied when making this determination:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2. The internship experience is for the benefit of the intern;

3. The intern does not displace regular employees, but works under close supervision of existing staff;

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of the factors listed above are met, an employment relationship does not exist within the meaning of the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern.  This exclusion from the definition of employment is necessarily quite narrow because the FLSA’s definition of “employ” is very broad.

Fact Sheet #71 is posted on the Internet at:

http://www.dol.gov/whd/regs/compliance/whdfs71.htm

The Circuit Court of Appeals decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/b92372d4-7346-4577-8924-55627b066916/2/doc/13-4478_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b92372d4-7346-4577-8924-55627b066916/2/hilite/