Fair Labor Standards Act not applicable to personnel employed by an "educational establishment"

Fair Labor Standards Act not applicable to personnel employed by an "educational establishment"

Fernandez v Zoni Language Center, USCA, 2nd Circuit, Docket #16-1689-cv

Zhara Fernandez and certain others [Plaintiffs] were employed as English teachers by the Zoni Language Center. Acting on their own behalf and others similarly situated, Plaintiffs alleged that Zoni was in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq., and the New York Labor Law because it failed to pay them the statutory minimum wage for hours worked out of the classroom and the statutory overtime required when Plaintiffs' classroom and out-of-classroom work exceeded 40 hours per week. 

The Second Circuit affirmed the district court's dismissal of the Plaintiffs' FLSA claims, holding that Zoni was exempt from the FLSA's mandatory minimum wage and overtime requirements as they were not applicable to teachers working as bona fide professionals. Zoni, said the court, was an "educational establishment" within the meaning of 29 C.F.R. 541.204(b).

Professional employees employed at elementary and secondary schools, institutions of higher education, or other educational institutions are deemed employees excluded from claiming compensation consistent with the mandatory provisions of the FLSA. In addition, for purposes of this exclusion, no distinction is drawn between public and private schools, or between those operated for profit and those that are not for profit.

The professional exclusion applies to employees who have as a primary duty, teaching, tutoring, instructing, or lecturing in the activity of "imparting knowledge and [who] do so in an educational establishment." Accordingly, employers of such personnel are not mandated to pay such employees minimum wages, overtime or similar compensation related rates otherwise required by Federal or New York State law with respect to its non-professional personnel.

An employee on leave from work due to a reasonable fear of domestic violence is not "unavailable" or unwilling to work for the purposes of eligibility for unemployment insurance benefits

An employee on leave from work due to a reasonable fear of domestic violence is not "unavailable" or unwilling to work for the purposes of eligibility for unemployment insurance benefits

Matter of Derfert (Commissioner of Labor), 2017 NY Slip Op 04016, Appellate Division, Third Department

To be eligible for unemployment insurance benefits, claimant must be "ready, willing and able to work." Further, whether a claimant is available for work ordinarily presents a question of fact for the Unemployment Insurance Appeal Board [Board] to determine and its decision will be sustained provided it is supported by substantial evidence in the record.

The uncontroverted evidence in this appeal from the Board's denial of claimant's application for unemployment insurance benefits for the period May 2, 2015 through June 7, 2015, was that claimant did not report to work, with the employer's approval, because a former boyfriend was physically and verbally abusing her. Such abuse included calling claimant on a daily basis and leaving threatening and disparaging voicemail messages and regularly sat in a car outside or near her home waiting for her to emerge.*

Although the Board ruled that claimant was ineligible to receive unemployment insurance benefits because she was not available for employment, the Appellate Division said that it disagreed with the Board ruling that claimant's leave of absence "necessitated by the actions of a perpetrator of domestic abuse rendered her legally unavailable for work."

The court, citing Labor Law §593(1)(b)(i), explained that the Legislature had provided that an employee may not be disqualified from receiving unemployment insurance benefits for separating from employment "due to any compelling family reason," which includes "domestic violence . . . which causes the individual reasonably to believe that such individual's continued employment would jeopardize his or her safety or the safety of any member of his or her immediate family."

The genesis of §593(1)(b)(i) was a ruling by a New Jersey appeals court that a woman who was forced to quit her job due to domestic violence was not entitled to collect unemployment benefits. The Appellate Division said that §593(1)(b)(i) indicated "the legislative intent remained to ensure that 'individuals who are voluntarily separated from employment due to compelling family reasons are eligible for [unemployment insurance] benefits.'"

The Board had, in this instance, rejected the claimant's application for benefits notwithstanding the claimant's uncontroverted testimony that she was the victim of domestic violence, stalking and harassment, as well as her testimony that she was willing and able to work during the period in issue but was prevented from leaving her home to get to work due to her justifiable fear of further violence by her former boyfriend.  

The Appellate Division disagreed with the Board's holding that an employee who takes a leave from work due to a reasonable fear of domestic violence, a "compelling family reason" under Labor Law §593(1)(b), is "unavailable" for or unwilling to work and is, therefore, ineligible for unemployment insurance benefits under Labor Law §591(2). The court said such a ruling "contradicts the intent underlying the protection afforded to domestic violence victims from disqualification for unemployment insurance benefits."

Accordingly, the court ruled the Board should not have found claimant to be ineligible for unemployment insurance benefits due to unavailability. It then reversed the Board's determination and remanded that matter to the Board "for further proceedings not inconsistent with this Court's decision."

* The decision notes that such abuse commenced after a "stay-away order of protection" expired and claimant had been unsuccessful in obtaining a new order.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04016.htm

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Challenging Adverse Personnel Decisions - A 765 page electronic book [e-book] focusing on penalties imposed on public employees of New York State and its political subdivisions found guilty of misconduct or incompetence by hearing officers and arbitrators and the judicial review of such penalties. More information is available on the Internet at http://nypplarchives.blogspot.com.

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Mere speculation and bare legal conclusions without any factual support set out in an Article 78 petition are ineffective in rebutting a defendant's motion to dismiss

Mere speculation and bare legal conclusions without any factual support set out in an Article 78 petition are ineffective in rebutting a defendant's motion to dismiss

England v New York City Dept. of Envtl. Protection, 2017 NY Slip Op 03948, Appellate Division, Second Department

The petitioner [Petitioner] in this Article 78 action had completed and passed a civil service exam for appointment to the position of Watershed Maintainer with the New York City Department of Environmental Protection [Department]. The Petitioner's name was placed  on an eligible list of candidates by the New York City Department of Citywide Administrative Services. Petitioner was subsequently considered, but not selected, for three separate vacancies for the position of Watershed Maintainer. Petitioner was then declared ineligible for further certification or appointment from the list established for the Department.

Petitioner then filed an Article 78 petition seeking a review a determination of the Department's decisions declining to select Petitioner for appointment to the position. Supreme Court granted the Department's motion to dismiss the Article 78 petition "for failure to state a cause of action and, in effect, dismissed the proceeding. Petitioner appealed.

Pointing out that although in an Article 78 motion to dismiss "only the petition is considered," the Appellate Division noted that all of allegations set out in the petition "are deemed true, and the petitioner is accorded the benefit of every possible favorable inference."

In contrast, said the court, "bare legal conclusions are not entitled to the benefit of the presumption of truth and are not accorded every favorable inference."

Applying these principles, the Appellate Division ruled that Supreme Court properly granted the Department's motion to dismiss the petition filed by Appellate Division, Second Department because it failed to state a discrimination claim and offered no more than "speculation and bare legal conclusions without any factual support."

Further, said the court, Petitioner's allegations that the Department refused to hire him because of a prior arrest history was unsupported by any factual contentions and constituted "mere legal conclusions, and are insufficient to state a claim."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03948.htm

Governor Cuomo announces judicial appointmeants to the Appellate Divisions of Supreme Court

Governor Cuomo announces judicial appointmeants to the Appellate Divisions of Supreme Court

Source: Office of the Governor

Governor Andrew M. Cuomo today appointed the Honorable Rolando Acosta as Presiding Justice of the Appellate Division for the First Judicial Department and elevated nine elected Supreme Court Justices from across New York to the four Appellate Departments of New York State.

In the Appellate Division-First Department Governor Cuomo designated Associate Justice Rolando Acosta to Presiding Justice of the First Department-Appellate Division, and appointed Supreme Court Justices Cynthia Kern, Peter Moulton, Jeffrey Oing and Anil Singh to fill four Associate Justice vacancies. The First Department includes New York and Bronx counties.

For Appellate Division-Second Department the Governor designated Supreme Court Justices Linda Christopher and Angela Iannacci to fill two Associate Justice vacancies on the Appellate Division-Second Department.  The Second Department comprises a ten-county downstate region that includes Kings, Queens, Richmond counties, Long Island and the lower Hudson Valley.  

Appoints to the bench in the Appellate Division-Third Department are as follows: Supreme Court Justices Stanley Pritzker and Philip Rumsey will fill two Associate Justice vacancies on the Appellate Division-Third Department.  The Third Department covers twenty-eight counties in the Eastern and Northern portions of Upstate New York, ranging from the mid-Hudson Valley to the Canadian Border and as far west as Schuyler and Chemung counties in the Southern Tier.  

In the Appellate Division-Fourth Department Governor Cuomo designated Supreme Court Justice Joanne Winslow to fill an Associate Justice vacancy on the Appellate Division-Fourth Department.  The Fourth Department encompasses twenty-two Upstate Counties in the Western and Central portions of the State, stretching as far north as Jefferson County.

Each of the designated Justices were chosen among candidates reviewed and advanced for consideration by Judicial Screening Committees from one of the four Appellate Departments across New York.  These Committee’s undertook a thorough review of all applications and written material, including conversations with numerous practitioners familiar with the candidate’s career and job performance.  In addition, the Committee conducted in-person interviews of dozens of elected Supreme Court justice candidates from across the State, with only those applicants deemed “highly qualified” by the Committees submitted to the Governor for consideration for appointment to Appellate Division.

Under the New York State Constitution and Judiciary Law, the Governor has the authority to appoint Presiding Justices to each Appellate Division from among those who have been elected as Justices of the Supreme Court. These appointments are not subject to Senate confirmation.

Brief biographies of these appointees are set out below:

Appellate Division-First Department

Honorable Rolando T. Acosta

Justice Acosta was elected New York State Supreme Court Justice in 2002 in the 1st Judicial District, and was appointed to the Appellate Division in 2008.  His judicial career began in 1997 as a New York City Civil Court Judge, where he spearheaded the creation of the Harlem Community Justice Center.    Prior to his judicial service, he held various posts with the Legal Aid Society, including Attorney-in-Charge of the largest civil trial office and Director of Government.  Justice Acosta has also served as Deputy Commissioner for Law Enforcement for the New York City Commission on Human Rights. In addition to his judicial responsibilities, Justice Acosta has been an active community servant and worked tirelessly to enhance the legal profession for all participants.  He has served as the President of the Latino Judges Association, during which time he was a mentor and teacher with the Latino Community, and as the Vice President of the New York City Bar Association.  He was selected as the 2004 Judge of the Year by the National Hispanic Bar Association, and is currently a member of the New York State Commission on Judicial Conduct, the Chief Judge’s Task Force to Expand Access to Civil Legal Services in New York, and the City Bar’s Council on the Profession. Justice Acosta was raised in the South Bronx and Washington Heights, after having emigrated from the Dominican Republic at age 14.  He is a graduate of Columbia College and Columbia University School of Law.  He currently serves as a Trustee of Columbia University and as a member of The Dean’s Council of Columbia Law School.

Honorable Cynthia S. Kern

Justice Kern has been a jurist since 2000 when she was first elected to the New York City Civil Court.  In 2008, she was designated an Acting Supreme Court Justice for the Civil Branch in New York County and was re-elected to City Civil Court in 2010.  The next year she successfully ran to fill a vacancy for New York Supreme Court Justice in the First Judicial District and has continued in that capacity since her election.  Prior to taking the Bench, Justice Kern was a practicing attorney for 15 years.  She began as a litigation associate with the law firm of Rosenman, Colin, Freund, Lewis & Cohen, before taking a similar position with Moses & Singer.  As a civil litigator, she focused on commercial and real estate litigation.  In 1992, she became the Principal Court Attorney for the Honorable Joan B. Lobis, New York Supreme Court.  Justice Kern graduated from the State University of New York at Stony Brook in 1982 and received her law degree from New York University School of Law in 1985.

Honorable Peter H. Moulton

Justice Moulton first became a jurist when elected as a Civil Court Judge in New York County on 2003.  In April 2010, Justice Moulton was appointed to be an Acting Supreme Court Justice of the Supreme Court, New York County.  He subsequently was elected to the Supreme Court in 2013.  As a judge, he has also held several leadership positions, including the Supervising Judge of the Civil Court, New York County from November 2010 through January 2014, and since March 2015 has served as both the Administrative Judge for Civil Matters, First Judicial District, and the Coordinating Judge of the New York City Asbestos Litigation.  Prior to sitting on the bench, Justice Moulton was the Principal Law Clerk to the Honorable Leland DeGrasse, Supreme Court Justice from 1995 to 2003.  He began his legal career as a law clerk to Judge Charles E. Stewart, Jr. in the Southern District of New York from 1986 to 1988, before joining the New York City Law Department’s Affirmative Litigation Division as a Staff Attorney.  Justice Moulton graduated from Stanford University in 1983 with a B.A. in International Relations and received his J.D. from Columbia Law School in 1986.

Honorable Jeffrey K. Oing

Justice Oing was elected to serve as a New York City Civil Court Judge in January 2004.  In 2011, he was elected to the Supreme Court of the State of New York in the 1st Judicial District and assigned to the Commercial Division.  Prior to taking the bench, he served as Deputy General Counsel to the New York City Council in 2002 and 2003, and also served as Deputy Director of the New York City Districting Commission.  From 1993 to 2002, Justice Oing worked in the New York Supreme Court in a variety of capacities, including as Law Secretary to Justice Walter B. Tolub (2000-02), Principal Appellate Court Attorney for the First Department (1998-2000), Law Secretary to Justice Marilyn G. Diamond (1995-98), and a Principal Court Attorney (1993-95).  In 1992, Justice Oing served as an Assistant Counsel to New Jersey Governor James J. Florio.  Prior to his public sector legal career, he was an associate at the New Jersey firm of Herold & Haines and began his career with the law firm of Donovan Leisure Newton & Irvine in 1990.  Justice Oing graduated from Columbia College in 1986 with a B.A. in English and received his J.D. from New York University School of Law in 1989.

Honorable Anil C. Singh

Justice Singh has been a jurist since 2003, after being elected as a New York City Civil Court Judge in 2002.  He was designated an Acting Supreme Court Justice in 2010 and was elected to his current role as a New York State Supreme Court Justice in the 1^st Judicial District in November 2013.  In April 2015, Justice Singh was appointed to the Commercial Division.  Prior to taking the bench, Justice Singh clerked for the Honorable Alice Schlesinger from 1987 to 2002.  Justice Singh was born in Gazipar, India in 1958 and immigrated to the United States in 1976 and upon this designation, he becomes the first Indian-American elevated to the Appellate Court in New York.  He graduated from Lawrence University in 1980 with a B.A. in Political Science and History and received his J.D. from the Antioch School of Law in 1986. 


Appellate Division-Second Department

Honorable Linda J. Christopher

Justice Christopher has been a jurist since 2002 when she began serving as Acting Justice for the Villages of Upper Nyack and Grandview.  In 2005, Justice Christopher was elected to the Rockland County Family Court where she presided through 2010.  While serving as a Family Court Judge, she also served as Acting Supreme Court Justice for the Integrated Domestic Violence Court from 2006 through 2010.  Since 2011, Justice Christopher has been a Supreme Court Justice and currently serves as the Supervising Judge for Matrimonial Matters for the Ninth Judicial District.  She began her legal career in 1980 as a law clerk for the Honorable Orelle Weeks in Denver Juvenile Court, followed by taking an Associate position with the law offices of Jerome Trachtenberg.  She also served briefly as a Hearing Examiner for Rockland County Family Court before starting her own practice in 1986.  Justice Christopher was in private practice with the Law Offices of Linda Christopher from 1986 to 1992, partnered in the firm of Christopher and Draine from 1992 to 1996, before returning to her private practice until her election to Family Court in 2004.  Justice Christopher graduated from the University of Colorado in 1976 majoring in Political Science before earning her J.D. from Antioch School of Law in 1980.

Honorable Angela G. Iannacci

Justice Iannacci has served as a member of the bench since 2004, when she was elected to Family Court in Nassau County.  Two years later, she was elected a Supreme Court Justice in Nassau County, and currently serves as Associate Justice for the Appellate Term in the 9th and 10th Judicial Districts, a position to which she was appointed in 2009, as well as continuing her Supreme Court docket in the 10th Judicial District.  Prior to taking the bench, Justice Iannacci held several legal positions including Principal Court Attorney to the Honorable Allan L. Winick, as Hearing Officer in Small Claims Assessment Review Proceedings, and fifteen years of extensive private practice with AIG, Rossano, Mose, Hirschhorn & Corleto, P.C., in Garden City, NY, and Gordon & Silber, P.C., in Manhattan concentrating in personal injury, medical malpractice and general liability matters.  She also maintained a solo general practice, Angela G. Iannacci, P.C., of Great Neck, NY while serving as a Hearing Officer from 1996-2001.  Additionally, she has served on the Judicial Committee on Women in the Courts, the NYS Anti-Discrimination Panel, NYS Office of Court Administration’s Best Practices Committee for Matrimonial Judges, the NYS Domestic Violence Task Force, and the NYS Special Commission on Fiduciary Appointments.  Justice Iannacci received her B.A. from George Washington University in 1983 majoring in Political Science and Economics, and her J.D. from Pace University School of Law in 1986. 


Appellate Division-Third Department

Honorable Stanley L. Pritzker

Justice Pritzker has been a jurist since 2005, taking the bench as a multi-court judge for the County, Family, Surrogate, and Drug Treatment Courts in Washington County.  In 2007, he was also designated an Acting Supreme Court Justice presiding over civil actions in Washington County.  In 2013, Justice Pritzker was elected as a Justice of the Supreme Court for the 4^th Judicial District.  Prior to his judicial career, Justice Pritzker was in private practice for nearly two decades handling civil, municipal and criminal litigation matters.  He also has extensive experience as a children’s attorney as an advocate in juvenile delinquency, PINS, divorce, custody neglect, and abuse proceedings.  Justice Pritzker began his professional career as a social worker in New York City while attending law school during the evenings.  He graduated from the State University of New York at Buffalo in 1978 with a B.A. in Philosophy and Psychology and earned a Masters degree in Social Work from the same institution in 1980.  He received his law degree from St. John’s University Law School in 1986.

Honorable Philip R. Rumsey

Justice Rumsey was first elected as a Justice of the Supreme Court for the Sixth Judicial District in 1994 and was re-elected to the bench in 2007.  Prior to becoming a jurist, Justice Rumsey practiced law for nearly two decades in both the private and public sectors, beginning as an Assistant District Attorney in Cortland County in 1976.  Other public service roles that he has served include, Assistant County Attorney for Cortland County, Attorney with the Cortland Housing Authority, Staff Counsel for the New York State Senate Standing Committee on Agriculture, Legislative Counsel for New York State Senator James L. Seward, and Town Attorney for the Town of Cortlandville.  He was also a Partner in the law firm of Ryan & Rumsey until taking the bench in 1994.  Justice Rumsey has been a member of the New York Pattern Jury Instructions Committee since 2008, and served in the New York State Army National Guard from 1971 to 1977.  He graduated from Hamilton College in 1971 with a B.A. in Geology and received his J.D. from Syracuse University School of Law in 1975. 


Appellate Division-Fourth Department

Hon. Joanne M. Winslow

Justice Winslow was elected as a Justice of the Supreme Court for the Seventh Judicial District in 2008.  She was assigned to the Matrimonial Part until 2011, before assuming her current assignment in Criminal Part, where she presides over felony indictments from arraignment through sentencing, as well as handling other legal matters.  Prior to her election to the bench, Justice Winslow spent over two decades as an Assistant District Attorney with Monroe County, finishing her tenure at the DA’s office as Bureau Chief for Major Felonies.  Justice Winslow has been recognized for both her professional and civic service activities, receiving accolades for distinguished and dedicated service from Rochester Police Department, Monroe County District Attorney’s Office, Monroe County Sheriff’s Office, and Boy Scouts of America.  This past December, Chief Judge Janet DiFiore named Justice Winslow to serve on the Richard C. Failla LGBTQ Commission.  She graduated from Springfield College in 1981 with a B.S. in Social Studies & Secondary Education, before receiving her J.D. from Albany Law School in 1986.

  

An employee may be subjected to disciplinary action for misusing his or her sick leave accruals

An employee may be subjected to disciplinary action for misusing his or her sick leave accruals

1. Decisions of the Commissioner of Education, Decision 11,111

2. NYC Office of Administrative Trials and Hearings [OATH], OATH Index No. 1468/17

Typically "attendance rules" for public employees permit the employee use his or her sick leave accruals to absent himself or herself from work in the event of personal illness, to care for a family member, including an opposite sex or a same-sex partner or a same-sex spouse, who is ill, for medical appointments, obtaining and training a medical service animal, in connection with pregnancy and other medical situations.

Some jurisdictions permit an employee to absent himself or herself from work without charge to leave credits in the event he or she is subjected to a "medical quarantine" while the availability and use of paid sick leave, sick leave at one-half pay and sick leave without pay by employees in a "collective bargaining unit" pursuant to an employer's "attendance rules" may be subject to provisions set out in a collective bargaining agreement. 

In any event, disciplinary action may be taken being taken against the employee who misuses his or her sick leave benefits.

For example, in Decisions of the Commissioner of Education #11,111, a teacher appealed a disciplinary hearing panel's finding her found guilty of "falsifying records" based on her misusing "family sick leave" benefits and suspending her without pay for nine and one half months.

The panel had found that the teacher had absented herself from work, charging her absence to her sick leave credits for an alleged “family illness” for three days immediately preceding the school district’s spring recess. The teacher, however, chanced to meet her principal at an "out of state" vacation site that they both were visiting on one of the days she had charged to her “family sick leave” leave credits. 

In OATH Index No. 1468/17 OATH Administrative Law Judge John B. Spooner found that a special officer violated his employer's rules when he absented himself from work for seven days using his sick leave accruals in order to remain on the payroll while attending "paid training sessions" being given by a private security company.

Judge Spooner rejected the officer’s claim that he was not working for the private company when he attended its training sessions, explaining that the officer’s signature on a letter accepting a position with the private company and his attending its required pre-employment training program constituted the commencement of an employment relationship with the company.

The judge also sustained charges alleging that the officer disobeyed instructions not to engage in  "outside work" without the prior approval of the Agency.

The ALJ recommended that the officer be terminated from his position with the Agency.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1468.pdf.pdf

Town Clerk arrested for allegedly attempting to "boost" her retirement benefits

Town Clerk arrested for allegedly attempting to "boost" her retirement benefits

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli reports that Springport Town Clerk Deborah Waldron has been arrested for allegedly trespassing on a town computer in an effort to boost her retirement benefits with the New York State and Local Retirement System.

The Comptroller's audits and investigations have led to over 130 arrests and more than $30 million in restitutions.

Comptroller DiNapoli’s investigations focusing on allegations of retirement fraud alone has led to 24 arrests and the recovery of nearly $3 million in retirement funds since 2011.

Fighting such corruption is among the Comptroller's top priorities and in 2011 he, together with New York State Attorney General Schneiderman, created the Operation Integrity task force. The work of this task force has led to the recovery of unlawfully diverted taxpayer dollars. Among those convicted as the results of these efforts are former State Sen. Shirley Huntley for activities involving "member fraud;" of former Member of the Assembly William Scarborough for campaign and travel fraud; and of six Metropolitan Council on Jewish Poverty executives involving a multi-million dollar embezzlement.

The Comptroller's press release concerning Waldron's arrest is posted on the Internet at:

http://www.osc.state.ny.us/press/releases/may17/051917a.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20170521&utm_campaign=fiscal+oversight

U. S. Supreme Court decision provides some clarification concerning the legal standard applicable to students with a disability receiving an appropriate public education

U. S. Supreme Court decision provides some clarification concerning the legal standard applicable to students with a disability receiving an appropriate public education

Source: New York Municipalities Blog, Harris Beach, PLLC

On March 22, 2017, in Endrew F. v. Douglas County School District, the United States Supreme Court issued a ruling focusing on the appropriate legal standard when determining if  a student with a disability is receiving an appropriate free public education (FAPE) via the student's individualized education program (IEP).

The New York Municipalities Blog item is posted on the Internet at:

https://www.harrisbeach.com/new-york-municipalities-blog/fape-standard-ieps-clarification-attempted-supreme-court/

The Supreme Court's decision is posted on the Internet at:
https://www.supremecourt.gov/opinions/16pdf/15-827_0pm1.pdf