Contracting with a former employee to assist in the training and transition his or her replacement

Contracting with a former employee to assist in the training and transition his or her replacement  

2017 NY Slip Op 02300, Appellate Division, Fourth Department

A retired Superintendent of Schools [Plaintiff] of the School District [District] commenced this breach of contract action seeking damages for the alleged breach of an agreement whereby the District agreed to pay Plaintiff $22,000 "as compensation for making himself available to assist the new Superintendent in the development of the school budget for the following fiscal year and such other duties as may be reasonably required to assist in the training and transition of the new Superintendent.'"

Prior to Plaintiff's retirement he had removed or destroyed a large number of documents that were kept in the Superintendent's office. The District wrote Plaintiff advising him that it had determined that the removal of these documents constituted a breach of the agreement and canceled the District's obligation under the agreement to issue payments to Plaintiff.

Supreme Court denied the District's motion for summary judgment dismissing Plaintiff's amended complaint and for judgment on the District's counterclaim, for conversion.* The Appellate Division concluded that the District "failed to meet their initial burden" and thus Supreme Court properly denied its motion.

The Appellate Division's decision notes that:

1. Plaintiff's "deposition testimony" stated that he was at all times "ready, willing and able" to assist the District and the new Superintendent but was never called upon to do so;

2. Plaintiff testified that "at least 50%" of the documents destroyed were personal documents accumulated over his 52-year career and, otherwise, they were documents that he considered to be his copies of documents that existed in other parts of the District, either as hard copies or in electronic format;"

3. The District had submitted the deposition testimony of the newly-hired superintendent who testified that he called Plaintiff with respect to the discarded documents and that he interpreted Plaintiff's responses to his inquiries regarding the discarded documents as a "threat," and he did not again contact Plaintiff; and

4. The District also submitted the deposition testimony of a District employee who testified that he observed a personnel file in the documents removed from Plaintiff's office.

The Appellate Division said that viewing District's submissions in the light most favorable to Plaintiff, "as we must," it concluded that the District failed "to demonstrate the absence of any material issues of fact whether Plaintiff's actions constituted a repudiation of the contract." The court cited Alvarez v Prospect Hospital, 68 NY2d 320, which addressed the question of whether a plaintiff's actions "constitute[d] an unequivocal and overt communication of [his or her] intention not to perform agreed-upon obligations."

In addition, the court ruled that the District had failed to establish its entitlement of judgment on its counterclaim alleging "conversion."

* Conversion is any unauthorized act that deprives an owner of personal property without his or her or its consent.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02300.htm

Resolving conflicts between the New York State Human Rights Law and the National Labor Relations Act

Resolving conflicts between the New York State Human Rights Law and the National Labor Relations Act

Figueroa v Foster, USCA, Second Circuit, Docket Nos. 16-1856-cv(L), 16-1864-cv(XAP)

The issue before the Court in this action concerned whether the duty of fair representation under the National Labor Relations Act [NLRA] preempted the New York State Human Rights Law [NYSHRL] with respect to claims of unlawful discrimination filed by a union member against a labor organization when the labor organization was acting in its capacity as a collective bargaining representative in contrast to its acting as an employer.

If, said the court, the NLRA’s duty of fair representation preempts the NYSHRL, then Title VII as administered by the Equal Employment Opportunity Commission will serve as the primary force protecting union members from "invidious discrimination by their labor organizations."

If, on the other hand, opined the Circuit Court, the NLRA’s duty of fair representation does not preempt the NYSHRL, then the NYSHRL as administered by the New York State Division of Human Rights will provide union members with additional protections against invidious discrimination by their labor organizations.

Holding that hold that the NLRA’s duty of fair representation did not preempt* the NYSHRL either on the basis of field preemption, i.e, the federal government has fully occupied the fieldit has chosen to regulate, or as a general matter on the basis of conflict preemption, i.e., is it impossible for a party to comply with both state law and federal law, the Circuit Court reversed the declaratory judgment of the district court.

The decision cautions that this opinion "addresses only the Local’s claim that the duty of fair representation preempts the NYSHRL in its entirety when applied to unions acting in their capacity as collective bargaining agents."

In the words of the Circuit Court: "We do not purport to address every potential conflict between the NYSHRL and federal law" in this ruling.

* Under the doctrine of preemption based on Article VI, Paragraph 2 of the Constitution of the United States, the so-called Supremacy Clause, federal law preempts state law, even when such laws are in conflict.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/27722fb4-6571-480b-ab91-18b80fd52a6b/8/doc/16-1856_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/27722fb4-6571-480b-ab91-18b80fd52a6b/8/hilite/

Redacting the name of a party in an administrative disciplinary action from the decision

Redacting the name of a party in an administrative disciplinary action from the decision

OATH Index No. 724/17

A New York City correction officer was served administrative disciplinary charges alleging the officer used unauthorized force when disbursing a chemical agent for more than a two-second burst within six feet of an inmate who had ceased offering resistance. The officer was also charged with filing an incomplete and inaccurate use of force report.

The officer moved to have his name redacted from the decision pursuant to §50-a of the New York State Civil Rights Law*on the grounds that a correction officer’s personnel records cannot be disclosed without an officer’s consent or a court order.

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge Astrid B. Gloade denied the motion, explaining that OATH has

consistently held that its decisions are not subject to the confidentiality provisions of Section 50-a of the Civil Rights Law because it is an independent tribunal that is not under the New York City Department of Correction's control."  

* Civil Rights Law §50-a, in pertinent part, provides that  “personnel records . . . under the control of . . . a department of correction of  individuals employed as correction officers” cannot be disclosed without an officer’s consent or a court order.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-724.pdf

Determining if a dispute between a public sector employer and employee is arbitrable

Determining if a dispute between a public sector employer and employee is arbitrable 

Board of Educ. of the Newburgh Enlarged City Sch. Dist. v Newburgh Teachers' Assn., 2017 NY Slip Op 05817, Appellate Division, Second Department

In a CPLR Article 75 action addressing a demand by the Newburgh Teachers' Association [Association], the Association appealed a Supreme Court order granting the Newburgh city School District's Board of Education's [Board] petition to permanently stay arbitration of the matter demanded by the Association and denied the Association's cross motion to compel arbitration.

Citing Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, the Appellate Division explained that in determining "whether a dispute between a public sector employer and employee is arbitrable, a court must first determine whether 'there is any statutory, constitutional or public policy prohibition against arbitration of the grievance.'"

If, said the Appellate Division, there is no " statutory, constitutional or public policy prohibition" prohibition against arbitration, the court must examine the parties' collective bargaining agreement to determine "whether the parties in fact agreed to arbitrate the particular dispute.

The Association had "demanded arbitration" to compel the Board to implement certain measures regarding the discipline and suspension of students.

The Appellate Division succinctly ruled that as various provisions of New York's Education Law "grants discretion to boards of education to implement disciplinary rules and regulations in schools," the Association's demand was nonarbitrable "on public policy grounds." Accordingly the question of whether the parties had agreed to arbitrate such a dispute was never reached by the court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05817.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 29, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 29, 2017

Click on text highlighted in color  to access the full report

New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations have been issued:

DiNapoli Releases Analysis of State Financial Plan, Warns of Federal Risks
 New York state is facing signs of increasing fiscal challenges, including lower revenue targets and possible federal budget and tax changes, according to a reporton the state's Enacted Budget Financial Plan issued by New York State Comptroller Thomas P. DiNapoli.

 
Audit Finds More Than $16 Million in Medicaid Cost Savings

New York state's Medicaid system could have saved up to $13.6 million it spent on patients with severe kidney disease whose expenses could have been covered by the federal Medicare program, according to an auditby State Comptroller Thomas P. DiNapoli. Auditors also found another $3 million in cost savings. About $1.8 million of the overpayments were recovered before the close of the audit as a result of actions taken by DiNapoli's auditors.

 
Audit Recommends Better Protections for Child Performers

The state Department of Labor is falling short in enforcing New York’s laws to protect child performers, according to an auditby New York State Comptroller Thomas P. DiNapoli. State auditors found shortfalls with how work permits were given to children and employers, inadequate monitoring of work conditions, and insufficient enforcement of requirements to set aside some of the children’s earnings in a trust.

 
DiNapoli and Orange County DA Hoovler Announce Guilty Plea in Newburgh Embezzlement Case

State Comptroller Thomas P. DiNapoli and Orange County District Attorney David M. Hoovler announced that John Aber, 49, of Staten Island, pleaded guilty before Orange County Court Judge Robert H. Freehill to grand larceny in the fourth degree for having stolen money while he was the comptroller of the city of Newburgh. At the time he pleaded guilty, Aber admitted that between August 2013 and December 2016 he used his position as city comptroller to steal money collected from boat-launch fees in the city of Newburgh.

 
State Tax Collections Lagging Last Year by $1.2 Billion

State tax collections totaled $18.6 billion in the first quarter of the new fiscal year, $1.2 billion less than the same period last year and $315.7 million below projections, according to the state cash reportissued by State Comptroller Thomas P. DiNapoli.

Applying the appropriate causation standard in adjudicating alleged unlawful retaliation claims for exercising FMLA rights

Applying the appropriate causation standard in adjudicating alleged unlawful retaliation claims for exercising FMLA rights

Woods v. START Treatment & Recovery Ctrs., USCA, 2nd Circuit, 16-1318-cv

Cassandra Woods lost a jury trial on her claim that she was fired for exercising her rights under the Family and Medical Leave Act [FMLA]. One of the two principal questions* addressed by the court in her appeal was "what is the appropriate causation standard for FMLA retaliation claims?"

The federal district court had instructed the jury that it must apply the “but for” causation standard with respect to Woods’ retaliation claims. The Second Circuit held that FMLA retaliation claims of the sort Woods brought in this case require applying a “motivating factor” causation standard. 

Under the motivating factor test, an employee could prove retaliation by showing that his or her decision to report or notify the employer of possible discrimination was a motivating factor in the employer's decision to terminate the employee or take some other adverse employment action.

In contrast, under the "but-for causation" standard, the employee would have to prove that he or she would have retained his or her position or would have avoided some other adverse employment action in the absence of the employer's retaliatory intent.

The district court's decision was then vacated and remanded to the lower court for further action.

* The second principal issue addressed by the Circuit Court of Appeals: "Was Woods unduly prejudiced by the admission of adverse inferences based on her invocation of the Fifth Amendment at her deposition?"

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/75dbeb99-a261-443d-8109-fd5e2161ad2e/2/doc/16-1318_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/75dbeb99-a261-443d-8109-fd5e2161ad2e/2/hilite/

Employment Law News from WK WorkDay

Employment Law News from WK WorkDay 

Source: Wolters Kulwer

Selected reports posted in WK Workday distributed July 26, 2017

Click on text highlighted in color  to access the full report

Senate bill would effectively take down the NLRB

Jury to say if physical presence on-site was essential to program director job

HR director may be individually liable for FMLA and Pennsylvania wage violations

Motivating factor, not ‘but for’ causation, governs fired employee’s FMLA retaliation claim

Officer ‘targeted’ for association with mayor’s ‘political enemy’ did not voluntarily resign

Individual has no property interest in his or her former employment once he or she is discharged

Individual has no property interest in his or her former employment once he or she is discharged

Milwaukee Police Association v Flynn, USCA,7th Circuit

Opinion Summary posted by Justia

"Vidmar, Manney, and Gomez were discharged from the Milwaukee Police Department, for cause, by Police Chief Flynn. Their benefits and pay stopped immediately. They appealed their terminations to the Board of Fire and Police Commissioners, which rejected their appeals. They were permanently discharged. The former officers claimed that their employment did not end when they were discharged by the chief because they were entitled to employment until the conclusion of their appeals. They alleged that they were denied constitutional due process and wages.

"The district court rejected their claims and granted judgment on the pleadings. The Seventh Circuit affirmed.

"Under Wisconsin law, the former officers had no property interest in employment once they were discharged for cause by Chief Flynn. They were provided a full and adequate appellate process, and their discharges were upheld in accordance with Wisconsin law. They were not entitled to wages for the period of time between their discharge and the conclusion of their appeal under Wisconsin law as they were not employed during that time."

Justia has posted a PDF of this decision than may be downloaded on the Internet at:

http://law.justia.com/cases/federal/appellate-courts/ca7/16-3743/16-3743-2017-07-12.html?utm_source=summary-newsletters&utm_medium=email&utm_campaign=2017-07-14-labor-employment-law-cf0f45d344&utm_content=text-case-title-8

The collective bargaining representative's duty of fair representation

One of the issues in Winston Henvill's Article 75 petition seeking to vacate the arbitration award that terminated his employment with the Metropolitan Transportation Authority [MTA] was his allegation that his collective bargaining representative, the Metropolitan Transportation Authority Police Benevolent Association [PBA], breached its duty of fair representation. 

Determining if a demand for arbitration of alleged violations of provisions set out in a collective bargaining agreement is viable

Determining if a demand for arbitration of alleged violations of provisions set out in a collective bargaining agreement is viable

City of Watertown (Watertown Professional Firefighters' Assn. Local 191), 2017 NY Slip Op 05553, Appellate Division, Fourth Department

The City of Watertown [City] filed a petition pursuant to CPLR Article 75 seeking a court order permanently staying the arbitration of a grievance filed by the Watertown Professional Firefighters' Association Local 191 [Local 191].

Local 191 alleged that the City had violated, among other things, provisions in the parties' collective bargaining agreement [CBA] by failing to maintain required staffing levels of captains within the City's Fire Department and by requiring certain members of the Fire Department to perform out-of-title work as a result of Watertown's failure to maintain the required staffing levels.

Supreme Court denied the City's petition with respect to Local 191's grievance alleging a failure to maintain minimum staffing levels but granted the City petition with respect to dismissing that part of Local 191's grievance alleging the assigning its members to perform out-of-title work constituted a violation of the CBA.

Both the City and Local 191, respectively, appealed these ruling by Supreme Court. The Appellate Division unanimously modified the Supreme Court's decision "on the law" by denying the City's petition in its entirety.

The court then addressed arbitrability of each of the issues set out in Local 191's demand for arbitration.*

1. Failure to maintain minimum staffing levels.

The Appellate Division rejected the City's contention that arbitration of minimum staffing levels "is prohibited by law." In City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273, the Court of Appeals held that "the subject matter of the dispute controls the analysis" and "a pending administrative proceeding concerning [a] respondent's alleged improper practices does not preclude arbitration inasmuch as there is no indication that the 'particular subject matter of the dispute' is not authorized,' i.e., not "lawfully fit for arbitration."

2. Agreement to arbitrate.

The Appellate Division also rejected the City's argument that the parties did not agree to arbitrate  Local 191's grievance, indicating that a court's review of that question "is limited to the language of the grievance and the demand for arbitration, as well as to the reasonable inferences that may be drawn therefrom." Here, said the court, the CBA contains a broad arbitration clause. Thus its determination of the arbitrability of the matter is limited to whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

Finding that such a reasonable relationship existed, the Appellate Division said it was "the role of the arbitrator, and not the court, to make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them."

3. Staffing levels.

Local 191 contended that the City demoted eight fire captains and thus violated the CBA by failing to maintain the requisite staffing levels, and by concomitantly forcing other members of the Fire Department to perform out-of-title work, i.e., fire captain's work, without the appropriate compensation. As the CBA included provisions governing both minimum staffing levels and compensation for out-of-title work, the Appellate Division concluded that the dispute is reasonably related to the general subject matter of the CBA.

That said, the court reject the City's argument to the contrary, holding that issue presented by Local 191 involves an interpretation of that provision and the merits of Local 191's grievance and thus is a question to be resolved by the arbitrator, "who is tasked with making 'a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them.'"

4. Grievance procedural matters.

The Appellate Division ruled strict compliance with the step-by-step grievance procedure set forth in the CBA, which procedures the City's maintained Local 191 failed to honor, was a question for the arbitrator to resolve.

In the words of the court, "Questions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators, particularly in the absence of a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration."

5. Out of title work.

The Appellate Division said that with respect to Local 191's cross-appeal with concerning alleged out-of-title work, Supreme Court was incorrect in dismissing it and modified the lower court's order accordingly.

Rejecting the City's contention that arbitration should be stayed with respect to the issue of out-of-title work because compensation for such work falls within the meaning of "salary," which is expressly excluded from the CBA's definition of "grievance," the Appellate Division ruled that as "there is a reasonable relationship between the dispute over out-of-title work and the subject matter of the CBA ... it is for the arbitrator to determine whether the [compensation for out-of-title work] falls within the scope of the arbitration provisions of the [CBA]."

The Appellate Division ruled "that the [Supreme Court's] order so appealed from is unanimously modified on the law by denying the [City's] petition in its entirety, and as modified the order is affirmed without costs."

* The Appellate Division noted the so-called "two-part test" used by New York courts to determine if a grievance is subject to arbitration, stating "Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." If there is a prohibition, our inquiry ends and an arbitrator cannot act. "If no prohibition exists, ' the courts then ask "whether the parties in fact agreed to arbitrate the particular dispute by examining their [CBA]."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05553.htm