Employee organization leave

Employee organization leave
§46 of Chapter 283 of the Laws of 1972

Providing employees of the State with Employee Organization Leave to participate in "union activities" as an elected or appointed officer of an employee organization certified or recognized for the purposes of collective bargaining has been an issue since the adoption of the Taylor Law.

In response to demands that State employees elected to a leadership position of an employee organization representing state employees be provided with "paid organization leave," the State agreed to provide for “Employee Organization Leave” and enacted §46 of Chapter 283 of the Laws of 1972 to this end.

This law provides that a State employee organization may obtain approval for paid full or part-time leaves of absence of its representatives provided it agrees to fully reimburse the State for the salary and other compensation paid to the individual and, in addition, reimburse the State for all employer contributions for fringe benefits made by the State on behalf of the individual, while he or she is on Employee Organization Leave. The individual would be continued as a State employee, on the State’s payroll, during this time. 

A "leaves for union activities" article set out in a Taylor Agreement typically provides  that  in the event an employees is  granted a leave of absence with full salary from his or her regular position for certain employee organization purposes, the employee organization shall reimburse the State the employee's salary and the employer's contributions for employee benefits while he or she is on such leave "consistent with provisions promulgated by the Department of Audit and Control and in accordance with the provisions of Section 46 of Chapter 283 of the Laws of 1972."

Another element affecting State employees on Employee Organization Leave: The State Ethics Commission has advised that “State employees on Employee Organization Leave or State employees on leave without pay who serve as employee organization representatives for CSEA … who have terminated their State service and are now employed by CSEA are subject to the "revolving door" provisions of the Public Officers Law and the corresponding restrictions on post-employment activities” [see Advisory Opinion #90-a ]. Presumably this opinion would be applied with respect to State employees on employee organization leave serving with other employee organizations.

Failure to honor a known policy of the employer can constitute disqualifying misconduct for the purpose eligibility for unemployment insurance benefits

Failure to honor a known policy of the employer can constitute disqualifying misconduct for the purpose eligibility for unemployment insurance benefits

New York City Dept. of Citywide Admin. Servs. (Commissioner of Labor), 2016 NY Slip Op 06526, Appellate Division, Third Department

The New York City Taxi and Limousine Commission [TLC] had a “limited-use policy”  permitting its employees limited personal use of TLC's office and technology resources as long as such use does not interfere with official duties and responsibilities.

TLC received an anonymous complaint that an individual [Employee] was using TLC's resources to conduct his campaign for election to the City Council. TLC requested the New York City Department of Investigation [DOI] to investigate Employee’s campaign-related activities during his employment. Employee then advised TLC that he was taking a leave of absence from his position pursuant to a directive requiring him to do so upon, among other things, publicly declaring his intent to seek elected public office.

Upon completing its investigation, DOI concluded that Employee had misused TLC's resources prior to taking a leave of absence and so advised TLC. TLC terminated Employee, prompting him to apply for unemployment insurance benefits.

The Department of Labor subsequently determined that Employee was disqualified from receiving benefits because his employment was terminated for misconduct and found that Employee had made a willful misrepresentation on his application for benefits insofar as he claimed that he had been discharged for lack of work. The Department charged Employee with an overpayment of $4,050 in benefits, reduced his right to receive future benefits by eight effective days and imposed a civil penalty of $607.50.

Ultimately, the Unemployment Insurance Appeal Board upheld the Department's initial determination and penalties imposed pursuant to that determination. Employee appealed the Board’s decision.

The Appellate Division affirmed the Appeal Board’s decision, explaining "Whether a claimant has engaged in disqualifying misconduct is a factual question for the Board to resolve and its determination will not be disturbed if supported by substantial evidence," noting that “It is well settled that failure to abide by a known policy of the employer can constitute disqualifying misconduct.”

The court’s decision noted that evidence in the record, including the report detailing the findings of DOI's investigation, established the Employee’s use of TLC's resources, such as his work computer and telephone, to further his political campaign efforts “was extensive” and  telephone calls made from his office telephone were unrelated to Employee's employment.

Although Employee denied that he used his work computer and the telephone at TLC to pursue his campaign efforts, including soliciting contributions for his campaign, at the hearing, the Appellate Division observed that this “presented issues of credibility within the exclusive province of the Board” to resolve and the Board was entitled to credit the competing evidence presented at the hearing and reject Employee's exculpatory claims.

In addition, noted the court, Employee inaccurately represented that he was unemployed due to a lack of work when applying for unemployment insurance benefits although he had previously been made aware of DOI's investigation of him.

Accordingly, the Appellate Division said that it found “no reason to disturb the Board's imposition of a recoverable overpayment or forfeiture penalty based upon the [Employee’s] willful misrepresentations.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06526.htm

Medical Marijuana in the workplace: what an employer in New York State needs to know

Medical Marijuana in the workplace: what an employer in New York State needs to know

Source: NYMUNIBlOG, Kyle Sturgess

New York’s Compassionate Care Act, Chapter 90 of the Laws of 2014, provided for the use of medical marijuana in New York State.

Harris Beach, PLLCattorneys Roy Galewski and Jim Beyer will conduct a webinar focusing on “Medical Marijuana in the New York Workplace” and addressing “Common Disability Accommodation Issues” on October 27, 2016 at 8:00 a.m.

Harris Beach invites interested readers to click on https://www.harrisbeach.com/wp-content/uploads/2016/07/LaborSeriesInvite2016.pdfto register for this webinar.

Challenging the termination of a probationary teacher

Challenging the termination of a probationary teacher

Lewandowski v Clyde-Savannah Cent. Sch. Dist. Bd. of Educ., 2016 NY Slip Op 06594, Appellate Division, Fourth Department

A probationary teacher [Teacher] commenced an Article 78 proceeding seeking a court order annulling the Clyde-Savannah Central School District Board of Education's [Board] decision to discontinue her probationary appointment on the grounds that the Board’s decision was arbitrary and capricious, and an abuse of discretion. Teacher also asked the court to direct the Board to reinstate her to her probationary teaching position with back pay.

The Board moved to dismiss Teacher’s petition on the ground that she had failed to serve a notice of claim as mandated by §3813.1 of the Education Law. §3813.1 required that Teacher serve the notice of claim within three months after the claim arose. Supreme Court granted the Board’s motion to dismiss and Teacher appealed.

The Appellate Division sustained the lower court’s ruling, explaining that the service of a notice of claim is a "condition precedent to bringing an action against a school district or a board of education" and such service was required here. Further, said the court, Teacher had not commenced a special proceeding in the nature of mandamus seeking to vindicate a judicially enforceable right conferred on her by the law and thus her cause of action “is not exempt from the notice of claim requirement.”

Significantly, Lewandowski, a probationary employee, had not attained tenure in her position.  In contrast, the Appellate Division, in Sephton v Board of Education of the City of New York, 99 AD2d 509, held that “the ‘tenure rights’ of teachers are ... considered a matter in the public interest and therefore Section 3813 is not applicable to cases seeking to enforce such rights.”

Further, New York courts have distinguished between proceedings “which on the one hand seek only enforcement of private rights and duties and those on the other in which it is sought to vindicate a public interest; the provisions of subdivision 1 of section 3813 are applicable as to the former but not as to the latter” (see Union Free School Dist. No. 6 of Towns of Islip and; Smithtown v New York State Div. of Human Rights Appeal Bd., 35 NY2d 371, rearg denied 36 NY2d 807).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06594.htm

The employer and individual employees of the employer may be named defendants in an action alleging unlawful discrimination under a "condonation theory"

The employer and individual employees of the employer may be named defendants in an action alleging unlawful discrimination under a "condonation theory"

Emengo v State of New York, 2016 NY Slip Op 06734, Appellate Division, First Department

Benedict O. Emengo filed a  CPLR Article 78 petition in Supreme Court alleging that he was adversely treated by his employer, the New York State Insurance Fund and certain NYSIF administrator* [NYSIF] because his color, national origin and that although he was well-qualified for promotion to positions he sought, was refused promotion to these positions.

Supreme Court granted NYSIF’s motion to dismiss Emengo’s petition but the Appellate Division unanimously modified, on the law, certain of Emengo’s causes of action dismissed by the lower court.

The Appellate Division said the Emengo’s allegations that one administrator told him that “he was an ‘immigrant’ who ‘should be content’ with his current job title, ‘since, as an immigrant, he would never be promoted beyond’ his current title” and that another administrator “was previously found to have discriminated against black NYSIF** employees” constitute sufficient evidence of discriminatory animus.

The court also held that Emengo had “sufficiently alleges that each individual defendant was an ‘employer’ for purposes of his claims, broadly asserting that each individual defendant was a high-ranking manager with, at least inferentially, supervisory powers, including the power to promote, discipline and terminate employees.”

The Appellate Division also noted that Emengo had alleged that “there was a long-standing policy of refusing to promote black NYSIF employees above the title of Supervising Insurance Field Investigator, that all of the individual defendants were at least aware of this policy, that all of the individual defendants were aware that [Emengo] was being refused promotions in accordance with this policy, and that none of the defendants took any action in response to this conduct.” Citing State Div. of Human Rights v St. Elizabeth's Hosp., 66 NY2d 684, and Patrowich v Chemical Bank, 63 NY2d 541, the court ruled that Emengo had “adequately pleaded employer liability as to all of the individual defendants, under a condonation theory”***within the meaning of Executive Law §296[1][a].

NYSIF agreed that Emengo’s claims against the State of New York and NYSIF "rise or fall with his claims against the six individual defendants," his claims against the State and NYSIF under the State’s Human Rights Law, including his causes of action for retaliation and for aiding and abetting discrimination, should be reinstated.

Emengo has also asked the Appellate Division to reinstate his claims under the New York City Human Rights Law [City HRL]. Supreme Court had dismissed his City HRL claims on the independent ground of sovereign immunity. Emengo, said the Appellate Division, was required on the independent ground of sovereign immunity, whether or not the failed to address this aspect of the Supreme Court’s decision and deemed him to have abandoned his appeal with respect to Supreme Court’s dismissal of his City HRL claims.

* The NYSIF administrators are denominated “John and Jane Doe” in the caption of the decision.

** The decision notes that Emengo “was a black man of Nigerian national origin.”

*** An essential ingredient of condonation is knowledge of the infraction alleged to have been condoned. In Matter of State Div. of Human Rights v St. Elizabeth's Hosp., 66 NY2d 684, the court held that “An employer will be liable for ‘an employee's discriminatory act [where] the employer became a party to it by encouraging, condoning, or approving it.’” Further, said the court, “the term condonation includes … ‘[a]n employer's calculated inaction in response to discriminatory conduct.’”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06734.htm